De Leon v. Aguilar

• Decision Date: 21 January 2004
• Docket Number: No. 74,760.,74,760.
• Citation: 127 S.W.3d 1
• Parties: Cesar DE LEON, Relator, v. The Honorable Luis AGUILAR, Judge 120Th District Court of El Paso County, Respondent.
• Court: Texas Court of Criminal Appeals

127 S.W.3d 1

Cesar DE LEON, Relator, v. The Honorable Luis AGUILAR, Judge 120Th District Court of El Paso County, Respondent.

No. 74,760.

Court of Criminal Appeals of Texas.

January 21, 2004.

Ray Velarde, El Paso, for Appellant.

John P. Mobbs, El Paso, Matthew Paul, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

The issue in this mandamus proceeding is whether the law provides an immediate remedy to enforce a right to recuse a biased trial judge. We hold that it does.

This is an original mandamus proceeding filed by Eduardo Chavez (Chavez) and Cesar De Leon (De Leon). They seek mandamus relief from this Court to compel respondent either to grant their recusal motions or to refer their recusal motions for another judge to decide. De Leon has criminal charges pending against him in respondent's court. After the filing of this mandamus proceeding, Chavez pled guilty to the criminal charges that were pending against him in respondent's court, so we dismiss as moot his mandamus claim. We will conditionally grant mandamus relief to De Leon.

The record reflects that De Leon's lawyers (the lawyers) represent another criminal defendant named David Estrada (Estrada) who also had criminal charges pending against him in respondent's court. Estrada filed a motion in respondent's court to recuse respondent based on his bias against the lawyers. Respondent referred the Estrada recusal motion to another judge who granted the motion after a hearing. Respondent was present and represented by counsel at this hearing.

Soon after this, the lawyers timely filed in respondent's court an identical motion to recuse respondent in De Leon's case. Respondent, however, declined to recuse himself or to refer the motion for another judge to decide. Instead, he ruled that De Leon's recusal motion did not allege proper grounds for recusal that would have triggered respondent's duty to recuse himself or to refer the motion for another judge to decide.¹

De Leon sought mandamus relief in the El Paso Court of Appeals. The El Paso Court denied mandamus relief in a 2-1 published decision with each judge filing an opinion. See In re Chavez, 130 S.W.3d 107 (Tex.App.-El Paso, No. 08-03-00277-CR, 2003 WL 21920375, delivered August 12, 2003). The lead opinion denied mandamus relief based on this Court's decision in Woodard v. Eighth Court of Appeals, 991 S.W.2d 795 (Tex.Cr.App.1998). See Chavez, at 112-16 (trial judge's "abusive noncompliance" with recusal rule provides no basis for granting mandamus relief). The concurring and dissenting opinions urged this Court to revisit Woodard. See Chavez, at 116 (Barajas, C.J., concurring) and at 116-17 (Larsen, J., dissenting). The dissenting opinion also claimed that the facts of this case are distinguishable from Woodard which the dissenting opinion claimed "is simply wrong." See Chavez, at 116-17 (Larsen, J., dissenting).

The origins of this case go back about two years when one of the lawyers insinuated that respondent was ambulance chasing in a personal injury case. Without expressing any opinion as to the merits of this imputation, we set out verbatim the facts from the opinion of the Court of Appeals.

[The lawyers'] complaints about [respondent's] alleged personal bias arise from events which occurred in April 2002, during which [respondent] was a candidate for judicial office for the 120th Judicial District Court. At that time, [the lawyers, Abraham and Smith], were attorneys representing their client Javier Favela in a criminal matter then pending in the United States District Court in El Paso, Texas. During the course of that representation, Mr. Favela was critically injured in a traffic accident during an inmate transfer movement by the U.S. Marshal Service on April 10, 2002. The marshals immediately contacted [the lawyers] and informed them of the accident and requested that they notify the Favela family. In addition, the U.S. Marshal Service requested that [the lawyers] serve as liaison between the Favela family, medical personnel, and the Marshal Service since Mr. Favela was still considered a prisoner in federal custody who could not have physical contact with family members. [Smith] went to Thomason Hospital, where she was eventually met by Favela family members.

The next day, April 11, 2002, numerous individuals approached the Favela family at Thomason Hospital while [Smith] was present. These individuals included attorneys attempting to solicit representation of Mr. Favela in any personal injury litigation against those agencies involved in the traffic accident. [Respondent], then a judicial candidate, was among the attorneys present at Thomason Hospital. The Favela family members advised those individuals in the presence of U.S. Marshals, that [the lawyers] would be handling the representation of Javier Favela and his family. [The lawyers] continued to represent the Favela family interests until April, 13, 2002, two days later, when the Favela family informed [the lawyers] that they had retained the services of [respondent]. The conduct of [respondent] at the hospital, and days thereafter, is the foundation for the subsequent motions to recuse.

In each case identical recusal motions allege that prior to being hired by the Favelas, [respondent] appeared at Thomason Hospital, supposedly on behalf of the Favela's church community. [The lawyers] contended that although [respondent] knew that the Favelas had secured [the lawyers] as their counsel and had seen [Smith] at the hospital, his true purpose was to procure legal employment and [sic] the Favela's personal injury case. On April 15, 2002, [respondent] formally informed [Smith] that he had been retained by all of Mr. Favela's heirs to represent their interests regarding any personal injury claim. On April 16, 2002, [Smith] sent a letter complaining about [respondent's] solicitation of business. [Smith] stated that [respondent] was certainly aware that she represented Mr. Favela in his federal criminal proceedings and was the individual first contacted by the U.S. Marshal Service. [Smith] further stated that she was present at Thomason Hospital with Mr. Favela from Wednesday, April 10, 2002, until the early hours of the following morning, Thursday, April 11, 2002, from approximately 10 a.m. to 9 p.m. on that same date, and again on Friday, April 12, 2002, from approximately 9:30 a.m. to 12:30 p.m. and from 3:15 p.m. to 5 p.m. During this period of time, it was [Smith's] understanding, based on her communication with the Favela family that she would be handling any personal injury claim. With respect to the solicitation, [Smith] wrote,

I have always upheld an impeccable ethical reputation and I did not, given the very grave nature of Mr. Favela's injuries and the family's anguish, believe it appropriate or considerate to require the Favelas to sign a formal contract with me at that time. Their word was sufficient for me. I could not have anticipated that an individual newly elected for a judicial position and who I am certain embodies the utmost respect for legal ethics would appear at the hospital as a representative of the Favela's church community—and enter into a legal discussion with them when it was well-known by you that I represented them.

After receipt of [Smith's] letter, [respondent] orally communicated with [Abraham] concerning the Favela situation. During their conversation, [respondent] allegedly referred to and described [Smith] in a derogatory and unkind manner. [Smith] and [respondent] had no further communication or contact until March 2003 at which time [Smith] appeared on behalf of [Abraham] as counsel for their client [in the Estrada case].

[The lawyers'] recusal motions also detail [respondent's] actions as presiding judge in [the Estrada case] during March and April 2003, prior to his recusal, which [the lawyers] assert evidenced his deep-rooted bias against [the lawyers]. In the [Estrada] case, [respondent] scheduled that case for a trial date which [Smith] had previously and formally notified the court would conflict with a specially scheduled jury trial in the State of Texas v. Trent Eigner in the 41st Impact Court of El Paso County. At the April 2, 2003, hearing on the motion to continue filed in [the Estrada case] based on this scheduling conflict, counsel Ray Velarde appeared before [respondent] on behalf of [the lawyers] to urge [their] motion for continuance of that hearing filed April 1, 2003. Respondent denied the motion to continue.

In March 2003, [Abraham] with counsel Ray Velarde were scheduled for a status conference in an unrelated civil forfeiture case before [respondent]. When associate [Smith] failed to appear precisely at 9:30 a.m., [respondent] sua sponte granted a post answer default judgment in favor of the State of Texas. [Smith] admittedly tardy to the conference because she was still appearing before the Hon. David Briones, a federal district judge for the Western District of Texas, El Paso Division in three cases. Prior to the status conference, the State and claimants had been involved in settlement negotiations, which they continued after [respondent's] action. However, upon information and belief, counsel understood that [respondent] would not accept their settlement agreement or an agreed judgment. On April 4, 2003, [the lawyers] and Mr. Velarde filed a motion for new trial in the civil case, and attached to their April 11 amended motion a letter from Judge Briones to [respondent], confirming that [Smith] was in his court for mandatory docket call, which lasted longer than anticipated. Though the State did not oppose the motion for new trial, [respondent] denied the motion at the April 25 hearing on the matter.²

This Court will grant mandamus relief if De Leon can demonstrate that the act sought to be compelled is purely "ministerial" and...