Vargas v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before SEERDEN; FEDERICO G. HINOJOSA, Jr.; As appellant requested only a partial statement of facts from the hearing, we are unable to determine the specific reasons for Judge Mulanax's ruling. After ruling that the court had jurisdiction and that he
• Citation: Vargas v. State, 883 S.W.2d 256 (Tex. App. 1994)
• Decision Date: 23 June 1994
• Docket Number: No. 13-93-013-CR,13-93-013-CR
• Parties: Jasper VARGAS, Appellant, v. The STATE of Texas, Appellee.

Page 256

883 S.W.2d 256

Jasper VARGAS, Appellant, v. The STATE of Texas, Appellee.

No. 13-93-013-CR.

Court of Appeals of Texas Corpus Christi.

June 23, 1994.

Rehearing Overruled Aug. 11, 1994.

Antonio Rodriguez, Pharr, for appellant.

Rene Guerra, Dist. Atty., Theodore C. Hake, Cynthia A. Morales, Rebecca Pool, Asst. Dist. Attys., Edinburg, for appellee.

Before SEERDEN, C.J., and GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found appellant guilty of possessing between 50 and 200 pounds of marihuana and assessed punishment at 25 years' confinement. By his first three points of error, appellant complains that the trial court erred by denying his motion for instructed verdict, and that the evidence is insufficient to support his conviction as a principal and a party. By his fourth point of error, appellant complains that the trial court erred by failing to refer his motion to disqualify to the presiding judge of the administrative district. We affirm the judgment of the trial court.

By his fourth point of error, appellant contends that reversible error occurred when Judge Virgil Mulanax, a visiting judge assigned to the 370th District Court, failed to refer to the presiding judge of the administrative district appellant's "Motion to Disqualify the Judge Sitting in the Hidalgo County Drug Court from Hearing Matters Objecting to Jurisdiction of the Drug Court." Appellant asserts that Mulanax's failure to refer the motion is contrary to the mandatory referral provisions of TEX.R.CIV.P. 18a-b (Vernon Supp.1994) and TEX. GOV'T CODE ANN. § 74.059(c)(3) (Vernon 1988); see Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App.1993); DeBlanc v. State, 799 S.W.2d 701, 705 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991). ¹ We find no reversible error.

Appellant's indictment was filed in the 370th District Court of Hidalgo County on February 13, 1992. Judge Fidencio Guerra is the presiding judge of the 370th District Court. On March 16, 1992, Judge Virgil Mulanax, sitting as a visiting judge in the 370th District Court, granted several of appellant's discovery motions and denied two motions relevant to this point of error. One motion was entitled "Objections to the Jurisdiction of Auxiliary Court and Motion to Retain Jurisdiction in the Court of Record." This motion alleged that the District Judges of Hidalgo County had created a "narcotics court" and that, for various reasons, such court violated several provisions of the United States and Texas Constitutions. The second motion was entitled "Motion to Disqualify the Judge Sitting in the Hidalgo County Drug Court from Hearing Matters Objecting to Jurisdiction of the Drug Court." This second motion stated:

COME NOW THE DEFENDANTS, GILBERT AND JASPER VARGAS, by and through their attorney of record, Antonio Rodriguez, and move the Court to rcuse (sic) the Judge currently presiding over the Drug Court in and for Hidalgo County, Texas and in support of his motion would show the following:

(1) The Visiting Judge currently presiding over the Drug Court is being paid for his services in presiding over said Court.

(2) The payment for the Judge's services in the Drug Court gives him a pecuniary interest in the results of any ruling on any motion objecting to the jurisdiction of the Drug Court in that he would not be paid for his services if the Drug Court was found to have no jurisdiction. The fact that the Visiting Judge may gain or lose by the nature of the judgment in this case is sufficient pecuniary interest to disqualify him from hearing a motion as to the Drug court's jurisdiction. See, Chastain v. State, 667 S.W.2d 791, review refused, Texas State Constitution, Art. 5, Section 11.

WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court grant this their Motion to Disqualify Visiting Judge from hearing any Motion Objecting to the Jurisdiction of the Drug Court.

The motion was not verified, and, therefore, did not comply with the procedural requirements of TEX.R.CIV.P. 18a. Nonetheless, some sort of proceedings were held before Judge Mulanax regarding the motion. We do not know exactly what occurred, because defense counsel requested that the statement of facts show only the following:

(EXCERPT)

THE COURT: Do you have anything additional on your motion to disqualify and the objection to the jurisdiction.

DEFENSE COUNSEL: Your Honor, I shall let the motions speak for themselves.

(EXCERPT)

THE COURT: The motion as to the jurisdiction and disqualifying the judge will be denied.

As appellant requested only a partial statement of facts from the hearing, we are unable to determine the specific reasons for Judge Mulanax's ruling. After ruling that the court had jurisdiction and that he was not disqualifying himself, Judge Mulanax apparently took no further action in the case. ²

The record reflects that appellant initially went to trial five months later, but that the first trial ended in a mistrial on August 18, 1992. Thereafter, Judge Guerra ruled on some motions. Finally, on August 26, appellant was tried and found guilty with Visiting Judge Benjamin Martinez presiding. Appellant was sentenced on September 14. Visiting Judge K. Baker signed the trial court's judgment on September 17, 1992.

We focus initially on appellant's "motion to disqualify" and determine that it was not a motion to disqualify Judge Mulanax from the case. The Texas Constitution and the Code of Criminal Procedure address disqualification. Article V, section 11 of the Texas Constitution provides that:

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....

The Code of Criminal Procedure provides that:

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, as determined under Article 5996h, Revised Statutes.

TEX.CODE CRIM.PROC.ANN. art. 30.01 (Vernon Supp.1994).

The grounds for disqualification of a judge that are stated in the Texas Constitution and the Code of Criminal Procedure are exclusive. Williams v. State, 492 S.W.2d 522 (Tex.Crim.App.1973); McDuffie v. State, 854 S.W.2d 195 (Tex.App.--Beaumont 1993, pet. ref'd). Appellant's motion was directed generally against any judge presiding over the "Drug Court." Appellant did not assert that Judge Mulanax had any interest in the outcome of the case, had been counsel for one of the parties, or was related to the victim or defendant. Appellant asserted generally that any judge of the Drug Court had an interest in the outcome of the motion because, according to appellant, the visiting judge would not be paid for his services if he ruled that the Drug Court had no jurisdiction. As such, the motion did not raise an issue specifically of Mulanax's qualifications to preside in the case. In fact, appellant had no objection to Mulanax ruling on his discovery motions, and it appears appellant would have been satisfied to have Mulanax preside in the case, except with respect to the jurisdictional motion. Thus, we conclude that appellant was not alleging that Mulanax was constitutionally disqualified or disqualified under the Code of Criminal Procedure.

We then turn to the issue of whether appellant's motion was a recusal motion. At the outset, we note that appellant's motion, rather than seeking to recuse a particular judge for financial interest, sought to recuse a class of judges, i.e., visiting judges, from hearing the jurisdictional motion on pecuniary interest grounds. For argument's sake, we will assume that the motion was sufficient to state grounds for recusal under TEX.R.CIV.PROC. 18b(2). ³ Since Rule 18a addresses the procedural aspects of recusal motions, we turn to appellant's motion to see if it complied procedurally with Rule 18a's requirements. We find that it did not.

Rule 18a(a) requires, in part, that the motion be verified and state with particularity the grounds why the judge before whom the case is pending should not sit. Appellant's motion was not verified. The State asserts that, as the motion was defective procedurally, the mandatory referral provisions were not triggered. We agree.

While it has been held in civil cases that a ruling on the merits of a recusal motion must be made by a judge other than one whose recusal is sought, even if the motion is procedurally defective, Carson v. McAdams, No. 01-93-472-CV, slip op. at 2, 1993 WL 282644 (Tex.App.--Houston [1st Dist.], July 29, 1993, orig. proceeding) (pub. pending); Carson v. Gomez, 841 S.W.2d 491, 493 (Tex.App.--Houston [1st Dist.] 1992, no writ), the Court of Criminal Appeals has held that a trial judge may make an initial determination that the recusal motion is not in compliance with Rule 18a(a). See Arnold, 853 S.W.2d at 544-45 (no error in not referring motion filed untimely); McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983) (Before the referral rule "is brought into play in criminal cases an obvious prerequisite is that the motion must be prima facie adequate."); see also McDuffie, 854 S.W.2d at 201.

We hold that the motion did not comply with Rule 18a because it was not verified. Judge Mulanax did not err by failing to refer the motion to the presiding judge of the administrative district. Appellant's fourth point of error is overruled.

By his first three points of error, appellant challenges the sufficiency of the evidence supporting his conviction either as a principal or as a party. Appellant contends that the State failed to establish any affirmative links, beyond mere presence, between appellant and the contraband found in the...