Gamez v. State
| Decision Date | 23 September 1987 |
| Docket Number | No. 015-84,015-84 |
| Citation | 737 S.W.2d 315 |
| Parties | Jesus Martinez GAMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Manuel V. Lopez, Eduardo Saenz, San Antonio, for appellant.
Sam D. Millsap, Jr., Dist. Atty., and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the capital murder of Joe Banda. The jury having answered the second special issue submitted under Article 37.071, V.A.C.C.P., in the negative the punishment was assessed at life imprisonment.
On appeal by virtue of a supplemental ground of error (now point) appellant contended that the trial judge was absolutely disqualified from presiding on the trial because he had served as counsel for the State in the case. Article V, § 11, Tex.Const.; Article 30.01, V.A.C.C.P. The Court of Appeals abated the appeal for an evidentiary hearing to determine whether the trial judge, the Honorable Roy R. Barrera, Jr., participated in the preparation and investigation of the case while he was an Assistant Criminal District Attorney for Bexar County. Gamez v. State, 644 S.W.2d 879 (Tex.App.-San Antonio 1983, pet. ref'd). Following such evidentiary hearing the Court of Appeals affirmed the conviction finding, inter alia, that Judge Barrera was not disqualified. 1 It further found that State's witness, Richard Sanchez, was not an accomplice witness as a matter of law and that the evidence was sufficient to sustain the conviction. Gamez v. State, 665 S.W.2d 124 (Tex.App.-San Antonio 1983). We granted appellant's petition for discretionary review to determine the correctness of the decision below. 2
It does not appear that the qualification of Judge Barrera was challenged at trial. It was raised for the first time on appeal. At the evidentiary hearing ordered by the Court of Appeals and presided over by Judge James Barlow, it was established that the State's written announcement of ready in the instant cause in the 144th District Court and dated March 23, 1979, was signed with the signature stamp of Roy R. Barrera, Jr., Assistant Criminal District Attorney. Judge Barrera testified that in March 1979 he was the third chair prosecutor in the 175th District Court, and that he was never a felony prosecutor in any other court. Judge Barrera testified he did not present the instant case to the grand jury, did not participate in any examining trial, did not conduct a field investigation, did not interview witnesses and did not prepare legal research in the case, did not ever examine the State's file, made no court appearance in the 144th District Court in this cause 3 or any other cause. When shown a copy of the State's announcement of ready he stated the handwriting on the document including the words "Jesus Gamez" was not his, and that he did not prepare the document and did not personally sign it though the document bore his stamped signature. He explained at that time one of the district courts trying criminal cases in Bexar County would hold "arraignments for all other courts," "probably in excess of one hundred cases." He further explained that the third chair prosecutor in the district court conducting the arraignments was responsible for preparing the State's announcements of ready in all of the cases, that other prosecutors would often assist the said third chair prosecutor by writing in cause numbers, the style of cases and signing such documents. Judge Barrera related that on occasion, while an Assistant Criminal District Attorney, he had been requested to help with such documents. 4 He had no independent recollection of ever seeing the document in question, and while he may have "stamped that document," someone else may have "stamped that for me or used my stamp."
Judge Barrera testified he became Judge of the 144th District court on October 22, 1980, more than a year and a half after the State's announcement of ready was filed.
Susan Reed, 5 who prosecuted the instant case, had no recollection of Judge Barrera participating in the case while he was a prosecutor and while she was connected with the case.
Article V, § 11, Texas State Constitution, in part provides:
Article 30.01, V.A.C.C.P., provides in part:
"No judge or justice of the peace shall sit in any case ... where he has been of counsel for the State or the accused...."
These provisions have been held to be mandatory. Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970), cert. den. 402 U.S. 914, 91 S.Ct. 1398, 28 L.Ed.2d 657 (1971); Ex parte Miller, 696 S.W.2d 908 (Tex.Cr.App.1985).
It is not necessary that an objection be made. Holifield v. State, 538 S.W.2d 123 (Tex.Cr.App.1976). The disqualification of a judge may not be waived even by consent of the parties. Tex.Jur.3d, Vol. 21, Crim.Law, § 1861, p. 772. The issue may be raised at any time. See Ex parte Miller, 696 S.W.2d 908, 910 (Tex.Cr.App.1985); Lee v. State, 555 S.W.2d 121, 122 (Tex.Cr.App.1977); Woodland v. State, 147 Tex.Cr.R. 84, 178 S.W.2d 528 (Tex.Cr.App.1944).
Under these provisions Tex.Jur.3d, Vol. 21, Crim.Law, § 1858, pp. 766, 767, and cases there cited.
As pointed out in Holifield v. State, supra, the prohibition in the Texas Constitution and Article 30.01, V.A.C.C.P., against a judge hearing a case in which he has acted as counsel requires that he actually have participated in the very case which is before him. 6
In Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965), it was held the trial judge in a prosecution for assault with intent to murder was not disqualified because he had been assistant district attorney at the time of the offense where the case did not come within the purview of his assignment as Assistant Criminal District Attorney, and he had no recollection of the case. See also Donald v. State, 453 S.W.2d 825, 826 (Tex.Cr.App.1969), citing Muro with approval.
In Rodriguez v. State, 489 S.W.2d 121, 123 (Tex.Cr.App.1972), this Court wrote:
See also Prince v. State, 252 S.W.2d 945 (Tex.Cr.App.1952).
In Ex parte Miller, supra, the Court observed that Hathorne, supra, had construed "counsel in the case" to require an affirmative showing that the judge actually acted as counsel in the very case before him and that Rodriguez and Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973), had followed the Hathorne interpretation.
In line with the above cases Judge Barrera, in the instant case, would not be disqualified unless the State's announcement of ready constituted him "counsel in the case." The judge testified that while an Assistant Criminal District Attorney he and other assistants on occasion were asked to assist the third chair prosecutor in the court conducting the arraignment docket for the district courts trying criminal cases by preparing written announcements of ready for the State in cases often exceeding one hundred in number. The particular announcement of ready in question was on a printed form. The blanks in the form concerning appellant's name, the date, the cause number and the court number were filled in by handwriting which was not that of Judge Barrera but it was signed with his stamped signature. The judge stated he did not prepare or personally sign the document and had no recollection of stamping the same; that someone may have "stamped that for me or used my stamp." Judge Barrera's lack of participation in the case has been detailed.
We agree with the Court of Appeals that the possible perfunctory act of Judge Barrera standing alone would not constitute him "counsel in the case" as contemplated by either the constitutional or statutory provision. 7 The ground of review is overruled. 8
Appellant's second ground of review relates to the charge of the court and the sufficiency of the evidence. He contends the Court of Appeals erred in overruling his points (nee grounds) of error complaining that Richard Sanchez was an accomplice witness as a matter of law; that the court erred in submitting to the jury as an issue of fact the question of whether Sanchez was an accomplice witness; that the evidence was insufficient to corroborate the testimony of Sanchez and that the evidence was insufficient to corroborate the testimony of Frank San Miguel, whom the court charged was an accomplice witness as a matter of law.
The capital murder indictment alleged that appellant Gamez did knowingly and intentionally cause the death of Joe Banda by shooting him with a gun on or about January 2, 1979, by employing Guadalupe Castro for remuneration in the amount of $1,000 to kill Banda by shooting him with a gun.
The facts were well summarized by the Court of Appeals as follows:
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