Martin v. State
| Decision Date | 01 February 1994 |
| Docket Number | No. 2-93-253-CR,2-93-253-CR |
| Citation | 876 S.W.2d 396 |
| Parties | Gerald Edward MARTIN, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Thomas L.G. Ross, Arlington, for appellant.
Tim Curry, Crim. Dist. Atty., Betty Marshall and Charles M. Mallin, Asst. Chiefs of Appellate Section, Steven W. Conder, Asst. Crim. Dist. Atty., Fort Worth, for State.
Before DAY, HICKS and FARRAR, JJ.
Appellant, Gerald Edward Martin, appeals his jury conviction for murder. TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). In three points of error, appellant asserts the trial judge erred in refusing to recuse himself and by refusing to refer the recusal motion to the presiding judge for a ruling when it was shown he had possibly participated in the preparation of appellant's case while serving as an assistant district attorney. Appellant further asserts the trial judge lost jurisdiction after the filing of the motion to recuse, and the judgment is void.
The appeal is abated and the cause is remanded for an evidentiary hearing.
During the guilt/innocence phase of the trial, Officer Thomas LeNoir, the primary investigating officer in the instant case, referred to his investigative notes during testimony. At the conclusion of his testimony, appellant requested and was provided the notes. These notes detailed the investigation and revealed that the trial judge, Robert K. Gill, while serving as an assistant district attorney, had provided advice to officers investigating the criminal involvement of a second party in the murder for which appellant was charged. The record reflects a hearing was held during which the State, appellant and Judge Gill asked Officer LeNoir questions regarding Prosecutor Gill's involvement in the instant and companion case. Appellant's motion for mistrial was denied. Later, appellant filed a Motion for Recusal and then re-urged the motion during the punishment phase of the trial. Both motions were denied.
The Texas Constitution provides in part:
No judge shall sit in any case ... when he shall have been counsel in the case....
TEX. CONST. art. V, § 11 (Vernon 1993). In addition the Code of Criminal Procedure provides:
No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree....
TEX.CODE CRIM.PROC.ANN. art. 30.01 (Vernon Supp.1994) (emphasis added). Further, the Texas Government Code provides:
A district or statutory county court judge shall ... request the presiding judge [of the administrative district] to assign another judge to hear a motion relating to his recusal of the judge from a case pending in his court.
TEX.GOV'T CODE ANN. § 74.059(c)(3) (Vernon 1988). If a trial judge participated in any manner in the preparation and investigation of the case, he would be a counsel for the State and hence disqualified. Gamez v. State, 737 S.W.2d 315, 318-19 (Tex.Crim.App.1987); Lee v. State, 555 S.W.2d 121, 124-25 (Tex.Crim.App.1977).
The State contends appellant's Motion to Recuse was untimely, and therefore waived, because he failed to comply with the ten-day notice provision of Texas Rule of Civil Procedure 18a. Arnold v. State, 853 S.W.2d 543, 544-45 (Tex.Crim.App.1993) (). The ten-day requirement seeks to avoid the disruption caused by the filing of a recusal motion on the eve of trial. Keene Corp....
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Kniatt v. State
...pet.) (abating appeal for recusal hearing); Sanchez v. State, 926 S.W.2d 391, 396 (Tex.App.-El Paso 1996, pet. ref'd) (same); Martin v. State, 876 S.W.2d 396, 398 (Tex.App.-Fort Worth 1994, no pet.) (same); see also In re K.K., 180 S.W.3d 681, 687 & n. 5 (Tex.App.-Waco 2005, order) (discuss......
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Ex Parte Ellis
...possible for it to acquire the information on which it bases its motion to recuse until after our opinion was released. Cf. Martin v. State, 876 S.W.2d 396, 397 (Tex. App.—Fort Worth 1994, no pet.) (explaining that, in trial court context, deadline for filing motion to recuse can be extende......
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Hawkins v. Walker
...a different judge. Id. 76. Appellants' reliance on Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989), Martin v. State, 876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no writ), and Keene Corp. v. Rogers, 863 S.W.2d 168, 171 (Tex.App.-Texarkana 1993, no writ) is misplaced......
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Teixeira v. State
... ... A motion to recuse is considered timely filed when the matter for recusal arises even after the ten day deadline set in TEX.R. CIV. P. 18(a). Martin ... ...
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Pretrial Motions
...does not know of the possible grounds for recusal until well into trial, the 10-day rule of Rule 18a does not apply. Martin v. State, 876 S.W.2d 396 (Tex.App.—Fort Worth 1994, no pet .). A motion to recuse is the proper vehicle to challenge any alleged bias of the trial judge in the case. S......
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Pretrial Motions
...does not know of the possible grounds for recusal until well into trial, the 10-day rule of Rule 18a does not apply. Martin v. State, 876 S.W.2d 396 (Tex.App.—Fort Worth 1994, no pet .). A motion to recuse is the proper vehicle to challenge any alleged bias of the trial judge in the case. S......
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Table of Cases
...(Tex. App.—Texarkana 1992, pet. ref’d ), §17:24.4.1 Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994), §20:94.3.1.2 Martin v. State, 876 S.W.2d 396 (Tex.App.—Fort Worth 1994, no pet .), §12:42 Marx v. State, 953 S.W.2d 321 (Tex.App.—Austin 1997), §17:25.2.3 Marx v. State, 987 S.W.2d 57......
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Pretrial Motions
...does not know of the possible grounds for recusal until well into trial, the 10-day rule of Rule 18a does not apply. Martin v. State, 876 S.W.2d 396 (Tex.App.—Fort Worth 1994, no A motion to recuse is the proper vehicle to challenge any alleged bias of the trial judge in the case. Sanchez v......