Lee v. State

• Decision Date: 13 July 1977
• Docket Number: No. 53397,53397
• Parties: Larry Corbin LEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 121

555 S.W.2d 121

Larry Corbin LEE, Appellant, v. The STATE of Texas, Appellee.

No. 53397.

Court of Criminal Appeals of Texas.

July 13, 1977.

Rehearing Denied Sept. 14, 1977.

Thomas P. Roebuck, Jr., Port Arthur, for appellant.

Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of attempted burglary. See Art. 1402, V.A.P.C. Punishment, enhanced under the provisions of Art. 63, V.A.P.C., was assessed at life.

Although not raised by any ground of error in appellant's brief, we find that the record presents a serious question of whether the judge who presided over this trial was disqualified by reason of having previously been counsel for the State in the case. The issue of his disqualification was raised in the trial court by motion of the appellant requesting that the judge disqualify by reason of his earlier activities concerning this case while he was Chief of the Trial Division of the Jefferson County District Attorney's Office in 1973. The issue of disqualification of the judge involves the jurisdiction of the court to act and should be considered by us as unassigned error in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.; Ex parte McDonald, Tex.Cr.App., 469 S.W.2d 173; Hathorne v. State, Tex.Cr.App., 459 S.W.2d 826; Ex parte Washington, Tex.Cr.App., 442 S.W.2d 391.

Art. 5, Sec. 11, Texas State Constitution, in its pertinent parts provides as follows:

"Sec. 11. No judge shall sit in any case . . . when he shall have been counsel in the case, or . . ."

Art. 30.01, V.A.C.C.P., as applicable here reads:

"No judge or justice of the peace shall sit in any case . . . where he has been of counsel for the State or the accused, or . . ."

The record reflects that the indictment was presented by the grand jury September 6, 1973, and was filed as Cause No. 30,989 in the Criminal District Court of Jefferson County. Hon. Larry Gist, who presided as the judge of that court over the instant trial of this case in March, 1975, was in the fall of 1973 Chief of the Trial Division of the Office of the District Attorney of Jefferson County. At a pre-trial hearing conducted March 17, 1975, before Judge Gist on appellant's motion requesting him to disqualify in this case, appellant placed in evidence a letter written by Gist on November 15, 1973 in his official capacity as Chief, Trial Division, Jefferson County District Attorney's Office, to appellant's then attorney, reading as follows:

Exhibit A

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The oath being waived, prosecuting attorney Thomas Moses testified as follows:

"MR. MOSES: Thank you, Your Honor. I have reviewed the file, relating to Larry Corbin Lee in the above mentioned Cause Number 30989. And in reviewing that, the only thing that I have found that the Court, now presiding, had anything to do with this case is the letter that is attached to the defendant's motion, styled Exhibit A. There is nothing else that I can find that the Court had had any other notations or any other business relating to this file. And it appears as though the letter was written as a result of a communication from Mr. Danny Clayton, who was the attorney for the defendant at that time. And the file reflects that the Judge was not in charge of the file at that time. However, it was being taken care of primarily by another prosecuting attorney, Mr. Doyle; and that as Chief of the Trial Division, Judge Gist - - - at that time, Chief of the Trial Division - - - just borrowed the file and wrote that note, after making some review. But that is the appearance of the file as it is reflected in our office."

Judge Gist then dictated the following statement into the record:

"THE COURT: So that the record will be perfectly clear, I asked Mr. Horka, one of the prosecutors, to bring me the State's file this morning, to review, for the purposes of ascertaining to what extent I may have had any connection with it, when I was in the District Attorney's Office.

"The perusal of the file, which was some three inches thick, indicated that it was assigned to Mr. Doyle; and subsequently assigned to Mr. Horka, who is now the attorney representing the State in the matter.

"At the time this file was indicted, I was in charge of the trial division of the District Attorney's Office. And there was a note in the file from Mr. Clayton which, in substance, said that I would appreciate it if you would let me know what the State's position is in connection with this case. Although, I have no independent recollection of what did occur, it was common, in my position of being in charge as the supervisor of all the trial lawyers in the District Attorney's Office, when an attorney contacted me personally, to take the initiative to find out the attitude of whatever prosecutor had been assigned the file. And I do feel reasonably sure that I did that at the time by asking Mr. Doyle his position in the matter. And as an accommodation to Mr. Clayton, I wrote the letter which is attached as Defendant's Exhibit A, attached to the motion.

"The log sheet of the District Attorney's Office in that file, which is a record of all the transactions occurring on behalf of the State, is there in its entirety, and no entry made by me is reflected at all in the course of that.

"There are a number of various hearings, settings, trial, and other things that have occurred, none of which the file reflects I ever had anything to do with. And I have no independent recollection of this case, the letter to Mr. Clayton, the defendant, or anything connected with it. That is the extent to which I have reviewed the matter. I will be glad to answer any questions you may have about it, Mr. Roebuck, if you care to ask anything.

"MR. ROEBUCK (Defense Attorney): Your Honor, I feel the Court has adequately presented the evidence showing that he is not disqualified."

The court overruled appellant's motion to disqualify and conducted the instant trial as the judge presiding. The State's file referred to in Judge Gist's statement was forwarded to this Court in a sealed envelope as a part of the record. ¹

Disqualification of a judge arising from a constitutional or statutory provision to preside over the trial of a case affects jurisdiction, and cannot be waived, and the judgment rendered is a nullity and void and subject even to collateral attack. Ex parte McDonald, Tex.Cr.App., 469 S.W.2d 673; Ex parte Washington, Tex.Cr.App., 442 S.W.2d 391; Woodland v. State, 147 Tex.Cr.R. 84, 178 S.W.2d 528; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88. Also see Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (1943); Indemnity Insurance Co. of North America v. McGee, 163 Tex. 412, 356 S.W.2d 666 (1962).

We have reviewed the State's file forwarded to this Court as aforesaid and find nothing therein except the above letter which associates Judge Gist, as former Chief of the Trial Division of the District Attorney's Office, with the investigation or prosecution of this case. Much of the file relates to matters occurring after November 15, 1973, the date of Gist's letter, which were not shown to have been brought to his attention when he was Assistant District Attorney. However, the file as the letter states he reviewed it contains a summary of complainant's statements to the investigating officers, detailed reports of the arresting and investigating officers, appellant's criminal record, and the request of the District Attorney's Office for Texas Department of Correction penitentiary packets to give information for the indictment of appellant as a habitual criminal. It was on the basis of this information that Gist, as Chief of the Trial Division, "reviewed" this case and found it to be a "very serious offense in and of itself, and in addition, the defendant's record is deplorable." Further, as stated by Chief Gist, "In view of all ...