Pennington v. State
| Decision Date | 10 February 1960 |
| Docket Number | No. 31435,31435 |
| Citation | 169 Tex.Crim. 183,332 S.W.2d 569 |
| Parties | Odis Odell PENNINGTON, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Odis Odell Pennington, pro se.
Sam L. Jones, Jr., Dist. Atty., Joe J. Alsup, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The indictment upon which this conviction rests charged the appellant with the offense of robbery by assault as the primary offense. It further charged two prior convictions of offenses less than capital for the purpose of enhancement.
Appellant contends that Judge Todd, the regular district judge, was disqualified to sit as a judge during any phase of the trial of this case on the ground that he had been of counsel for the state in one of the prior convictions alleged for enhancement.
By motions appellant urged the disqualification of Judge Todd before the jury was selected, at the close of the state's case in chief, and also for a new trial. The record shows that Judge Todd was the district attorney and actively participated in the conviction of the appellant in one of the prior felony convictions alleged in the indictment for enhancement.
Judge Todd called this case for trial, impanelled the jury, and sat during their voir dire examination which was concluded about 3:00 p. m. The first juror examined on voir dire was excused. Judge Todd made further decisions as to excuses of other members of the panel, and also made rulings during the voir dire examination of the panel. At the conclusion of the voir dire at 3:00 p. m., the jury panel was excused with instructions to return the following morning.
Illness prevented Judge Todd from continuing with the trial, and the following morning Judge Ford convened the court and proceeded with the trial to its conclusion.
The state takes the position that Judge Todd was not disqualified because the prior convictions alleged in the indictment were abandoned after the call of the case for trial but before the ocmmencement of the voir dire examination of the jury panel. If the allegations of the prior convictions were not abondoned Judge Todd was disqualified. If he did authorize their dismissal, he thereby performed a duty calling for the exercise of judicial discretion. 12 Tex.Jur. 668, sec. 323; 5 Branch 2 ed. 16, sec. 2570.
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Hathorne v. State
...for the State or the accused * * *.' These provisions have been construed as being mandatory and must be observed. Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569, 570, and authorities there cited. See also Ex parte Washington, Tex.Cr.App., 442 S.W.2d It has been held, however, that ......
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Monroe v. Blackmon
...a party to the case, and therefore the trial judge, who was the attorney's cousin, was disqualified); Pennington v. State, 169 Tex.Crim. 183, 332 S.W.2d 569, 570 (Tex.Crim.App.1960) (judge disqualified when he was formerly the district attorney and actively participated in convicting appell......
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Ex parte Pennington
...appeal three times from Nueces County and was reversed each time. A change of venue to San Patricio County then followed. In 169 Tex.Cr.R. 183, 332 S.W.2d 569 (1960), the case was reversed due to the disqulification of the trial judge. In 171 Tex.Cr.R. 130, 345 S.W.2d 527 (1961), the formal......
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Nichols v. State
...that no judge shall sit in any case where he has been of counsel for the state, and he also cites and relies upon Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569 (1960). Pennington v. State, supra, was overruled in Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970). Griffin v. State......