McDuffie v. State

• Decision Date: 28 April 1993
• Docket Number: No. 09-88-284,09-88-284
• Citation: 854 S.W.2d 195
• Parties: Dwight McDUFFIE, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 195

854 S.W.2d 195

Dwight McDUFFIE, Appellant, v. The STATE of Texas, Appellee.

No. 09-88-284 CR.

Court of Appeals of Texas,

Beaumont.

April 28, 1993.

Discretionary Review Refused Sept. 22, 1993.

Charles Freeman, Houston, for appellant.

Robert Hill Trapp, Crim. Dist. Atty., Bill Burnett, Asst. Crim. Dist. Atty., Coldspring, Joe L. Price, Dist. Atty., Groveton, for the State.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

A jury convicted appellant for the felony offense of Capital Murder. The jury answered the second special issue "No" resulting in appellant's punishment being assessed at life in the Texas Department of Corrections, now known as the Institutional Division of the Texas Department of Criminal Justice. Appellant was essentially convicted for hiring an individual to murder one, Louis Jones, Jr., on or about December 4, 1985. Appellant brings to this Court fifty points of error.

Point of error one states, "The trial court committed reversible error by granting the State's challenge for cause against venireperson no. seven, Margie Thomas." Appellant contends that the trial court should not have granted the State's challenge of Ms. Thomas because "both the State and the trial court hoodwinked Thomas into believing that she, as a juror, would give, consider or vote for the death penalty." The record before us reflects that Ms. Thomas was quite vacillating in her personal opinion with regard to the death penalty. We find, however, that because the jury assessed punishment at life imprisonment, appellant is not entitled to a new trial on the grounds that the prospective juror was improperly excluded for cause because of her conscientious scruples against inflicting the death penalty. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Garcia v. State, 626 S.W.2d 46, 55 (Tex.Crim.App.1981); White v. State, 591 S.W.2d 851, 858 (Tex.Crim.App.1979); Simmons v. State, 504 S.W.2d 465, 468 (Tex.Crim.App.1974), cert. denied, 419 U.S. 829, 95 S.Ct. 51, 42 L.Ed.2d 54 (1974); Buffington v. State, 801 S.W.2d 151, 157 (Tex.App.--San Antonio 1990, pet. ref'd), cert. denied, 502 U.S. 876, 112 S.Ct. 218, 116 L.Ed.2d 176 (1991). Point of error one is overruled.

Point of error two states, "The trial court committed reversible error by denying accused's First Motion To Suppress Evidence of Conspiracy: Rule 404(b)'s notice ground." Under the "Argument And Authorities" portion of appellant's brief for this point of error, appellant's lone authority is to TEX.R.CRIM.EVID. 404(b) and TEX.R.APP.P. 81(b)(2). Rule 404(b) provides, in pertinent part, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith...." Rule 404(b) goes on to state that such evidence may be admissible for other purposes "provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence...."

The record reflects that on June 21, 1988, the day trial commenced, appellant filed an instrument entitled, "Accused's First Motion To Suppress Evidence of Conspiracy." Said motion admitted that the State had complied with the notice provision of Rule 404(b) on May 4, 1988. On appeal, appellant again admits the State's compliance with Rule 404(b), but now claims that said notice was not "reasonable." Appellant fails to provide any constitutional, statutory, or case authority to support this claim. Consequently, we consider this point of error to be inadequately briefed and will not address it. Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992); TEX.R.APP.P. 74(f). Point of error two is overruled.

Point of error three provides, "The trial court committed reversible error by not considering recusal based on Third Accused's Motion To Recuse filed on 21 June 1988." Recusal of judges in criminal cases is governed by TEX.R.CIV.P. 18a of which paragraph (a) provides:

At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.

In the instant case, the recusal motion in question was filed on the day of trial. Regardless of what may or may not be read into footnote 3 of DeBlanc v. State, ¹ we find the operative language of that opinion disposing of the recusal issue contained in the following:

Rule 18a obviously presupposes that litigants should not be able to halt judicial proceedings at will by the simple invocation of the mandatory provisions of Article 200a, section 6.... ² In the case at bar, appellant failed to comply with Rule 18a and as such he will not be heard to complain on appeal of the denial of an opportunity to have his motion heard by a judge other than the one assigned to his case.

In the instant case, we find no abuse of discretion by the trial court in summarily refusing to consider appellant's blatantly untimely recusal motion. Furthermore, appellant's motion completely fails to comply with what we perceive to be the mandatory language of Rule 18a as to "particularity" with regard to the grounds for recusal. Appellant's motion also fails to set forth any facts "as would be admissible in evidence." For all of the above reasons, appellant's third point of error is overruled.

Appellant's fourth point of error provides, "The trial court committed reversible error by not considering disqualification based on Third Accused's Motion To Recuse filed on 21 June 1988." In examining appellant's motion and his argument under this point of error, appellant fails to appreciate the distinction between "recusal" and "disqualification" of a judge. With regard to recusal, see the discussion of Rule 18a, supra.

TEX.CONST. art. V, sec. 11 provides a basis for disqualification of judges, stating in part:

No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case....

TEX.CODE CRIM.PROC.ANN. art. 30.01 (Vernon 1989) ³ 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.

In the instant case, appellant's motion provides no specific or particularized facts to support disqualification of the trial judge. Appellant's brief refers us to a portion of the statement of facts which is reproduced as follows:

BY MR. PINK (counsel for appellant):

And we would ask the Court to make a finding of fact and conclusion of law, and the Court, also, on the motion to recuse, we would like to have that be an ongoing motion in the sense that we discovered things that we had no knowledge of prior to the actual selection of the jury to this particular point, as the Court knows that in certain aspects, we feel that under those propositions, that it would not be untimely in the sense that the first instance we discovered the relationships and the possibility of biased (sic) toward the State, in the State's favor, we recognized that and made motions concerning the recuse (sic) as soon as we found out perhaps that there was some problem in that area. So, we would just ask that that just be a continuing type motion as we develop and learn different informations (sic) concerning the Court's role.

BY THE COURT:

I have no problem with the motion to recuse, it being continued and it being a continuing type motion. I am still not considering it because it was filed after the trial had begun, and it wasn't timely filed.

Now on the Accused First Motion to Continuance. (sic)

Neither in this point of error nor in appellant's third point of error does he provide us with any record reference to evidence of "interest" on the part of the trial court, or of the trial court's connection to any party "by consanguinity or affinity." The Court of Criminal Appeals has held that the grounds of disqualification stated in the Texas Constitution and the Code of Criminal Procedure are exclusive. Ex parte Largent, 144 Tex.Crim. 592, 162 S.W.2d 419, 426 (on motion for rehearing), cert. denied, 317 U.S. 668, 63 S.Ct. 72, 87 L.Ed. 536 (1942).

In the instant case, other than a general complaint of bias on the part of the trial court based solely upon the claim that the trial court adjudicated a divorce case involving the murder victim and the victim's wife, who appellant characterizes as a "co-conspirator," there is no evidence of interest or bias on the part of the trial court which could be characterized as depriving appellant of due process of law. See McClenan v. State, 661 S.W.2d 108, 109 (Tex.Crim.App.1983). Point of error four is overruled.

Point of error five avers, "The trial court committed reversible error by denying defendant's Motion For Change of Venue." Our standard of review is whether the trial court abused its discretion in refusing to grant the change of venue. DeBlanc, supra, 799 S.W.2d at 705. Prior to commencement of trial, the trial court held a hearing on appellant's change of...