Ex parte Thuesen

546 S.W.3d 145
Court of Criminal Appeals of Texas·Decided February 8, 2017·No. NO. WR–81,584–01·Published·Cited by 14 cases

Opinion

Per curiam.

This is an application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure article 11.071.1 In this opinion, we consider the preliminary issue of the judicial authority of the judge who presided over habeas proceedings in this case. The judge at issue signed an order voluntarily recusing himself from presiding over applicant's habeas proceedings. He then sought and obtained the appointment of a replacement judge, but subsequently signed an order purporting to restore his own judicial authority to preside over the case. For the reasons explained below, we hold that the judge did not have authority to take any further action after signing the voluntary recusal order. We therefore restore this matter to its position immediately following the replacement judge's assignment to the case and remand it to the trial court for further proceedings.

BACKGROUND

In May 2010, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Thuesen v. State , No. AP-76,375, 2014 WL 792038 (Tex. Crim. App. Feb. 26, 2014) (not designated for publication). Applicant filed his initial application for a writ of habeas corpus in the trial court on October 10, 2012, raising twenty-two claims for relief, including allegations that his trial attorneys were constitutionally ineffective. On April 26, 2013, Judge Travis Bryan signed an order designating issues specifying that applicant's claims one through nineteen involved factual issues that required resolution. Judge Bryan ordered that an evidentiary hearing be conducted. He subsequently scheduled the evidentiary hearing to commence on December 10, 2013.

However, on November 18, 2013, Judge Bryan signed a written order, stating "[t]he undersigned judge recuses himself from the writ hearings in this case only (and not for the retrial of the underlying criminal case)." Judge Bryan gave no reason for the recusal in his order. But, "in accordance with Rule [of Civil Procedure] 18a," he requested that the Presiding Judge of the Second Administrative Judicial Region, the Honorable Olen Underwood, appoint another judge to preside over applicant's case.

Applicant's habeas counsel sent an email to Judge Bryan regarding the recusal order, stating that counsel would "like to avoid the Court recusing itself from the case, if possible, because of the Court's *148deep knowledge and prior experience." Judge Bryan responded via email, stating that he was recusing himself because he had donated $1,000 to the judicial campaign of applicant's trial attorney, Michele Esparza. He further stated that Esparza had worked for him for six years and that he had tried several high profile cases with applicant's other trial attorney, Billy Carter. Judge Bryan indicated via email that he would "reconsider" his recusal "if BOTH sides request." Applicant's counsel replied that they had consulted with applicant and he agreed with their request for Judge Bryan to reconsider his recusal. The State responded that Judge Bryan should proceed with the voluntary recusal. Judge Bryan's court coordinator then notified the parties on the same day that the judge was going forward with the recusal.

On November 20, 2013, Judge Underwood's assistant sent a letter from Judge Underwood's office to Senior Judge H. R. Towslee. The letter transmitted "assignment # 24920," which was an order assigning Judge Towslee "to hear Cause No. 09-02136-CRF-272-A; State of Texas vs. John Darrell Thuesen and to dispose of any other business requested by the court." In the accompanying order, which was signed on November 18, 2013, Judge Underwood assigned Judge Towslee to preside over the 272nd District Court starting on December 10, 2013, "for the primary purpose of hearing cases and disposing of any accumulated business requested by the court." The order provided that Judge Towslee's "assignment shall continue as may be necessary for the assigned Judge to dispose of any accumulated business and to complete trial of any case or cases begun during this assignment ... or until terminated by the Presiding Judge." Judge Towslee signed an order on November 22, 2013, rescheduling the evidentiary hearing in this case.

On March 13, 2014, applicant filed a motion to "Reassign Original Trial Court Judge," asserting that Judge Bryan's conflict of interest leading to the recusal had "been resolved" because Esparza had been defeated in the primary election. Although applicant attached a proposed order for Judge Underwood's signature, the record shows that the order remained unsigned. The next day, Judge Bryan sent an email from his personal email address to the 272nd District Court coordinator regarding applicant's case, stating:

Judge Underwood called this morning and advised me that if I am willing, since I originally recused myself, I can now enter an order withdrawing my own recusal order. This would put me back on the capital writ hearing. I told him I would do this on Monday. The reason I will is because my original recusal reason, [Esparza's] campaign and my donation to her, is now moot. He said it will then fall on either of the parties to object to my presence in the case. He believes this is the proper procedure. If anyone objects, Judge Underwood or his designee will then hear the involuntary recusal motion.
By copy of this email, you may notify both sides and Judge Towslee of my intent. Please copy Judge Underwood also to confirm my conversation with him. I will enter the order on Monday. Travis Bryan III.

Judge Bryan's court coordinator forwarded Judge Bryan's message to email addresses corresponding to counsel for both sides, Judge Towslee, and Judge Underwood. The prosecutor responded on March 17 with the following objection: "The State must respectfully object due to potential claims on this issue being raised post state writ."

On the same day, Judge Bryan's court coordinator arranged a "phone conference *149hearing on the Motion (to withdraw the recusal) and the State's objection." Judge Bryan presided over the telephonic hearing regarding his own reinstatement, and counsel for the State and for applicant participated in the hearing. The record reflects that applicant, Judge Underwood, and Judge Towslee did not participate. During the telephonic hearing, Judge Bryan stated that Judge Underwood had told him in a telephone conversation that, even though Judge Towslee was the judge assigned to the case, Judge Bryan could enter an order that day.

The prosecutor explained the State's objections to Judge Bryan's intended reinstatement. Specifically, the fact that Esparza lost the primary did not change the State's concern about the "perception of bias" and "appearance of impropriety," which necessitated Judge Bryan's voluntary recusal. The prosecutor expressed concern that these issues could lead to future claims of ineffective assistance of counsel or judicial bias in applicant's federal writ.

Free access — add to your briefcase to read the full text and ask questions with AI

Ex parte Thuesen, 546 S.W.3d 145 (Tex. 2017).

546 S.W.3d 145 (Ex parte Thuesen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Ex Parte Robert Gildon v. the State of Texas
Tex. App. Ct., 1st Dist. (Houston), 2026
The State of Texas v. Brandon Johnson
Court of Appeals of Texas, 2024
Marco A. Cantu v. J. Michael Moore
Court of Appeals of Texas, 2024
WOOD, DAVID v. the State of Texas
Court of Criminal Appeals of Texas, 2024
Will v. Stephens
S.D. Texas, 2024
Lane, Danny Richard
Court of Criminal Appeals of Texas, 2023
Lewis, Andrew
Court of Criminal Appeals of Texas, 2023
Crowder, Curt Daniel
Court of Criminal Appeals of Texas, 2022
Michael A. Ruff v. Suzann Ruff
Court of Appeals of Texas, 2022
Garza, Humberto
Court of Criminal Appeals of Texas, 2021
in Re the State of Texas, Ex Rel Kim Ogg
Court of Criminal Appeals of Texas, 2021
in Re Andrew Pete
Court of Appeals of Texas, 2020
Brent Singleton v. State
Court of Appeals of Texas, 2020
Ex parte Thuesen
546 S.W.3d 158 (Court of Criminal Appeals of Texas, 2018)