James Alva Elston v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00189-CR

JAMES ALVA ELSTON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

MEMORANDUM OPINION1

A jury convicted Appellant James Alva Elston of burglary of a habitation

and unlawful possession of a firearm by a felon and, upon his pleas of true to two

enhancement paragraphs and three habitual paragraphs, assessed his

punishment at ninety-nine years’ confinement for each count. The trial court

sentenced him accordingly. In his sole point, Appellant contends that the trial

judge was biased and should have been recused from trying the case. Because

1 See Tex. R. App. P. 47.4. we hold that Appellant did not satisfy his burden of proving that the trial judge

was so biased as to deny Appellant due process of law, we affirm the trial court’s

judgment.

We review the denial of a recusal motion for an abuse of discretion.2 We

may not reverse the regional presiding judge’s ruling on a recusal motion as long

as the ruling is within the zone of reasonable disagreement.3 In our review, we

consider the totality of the evidence admitted at the hearing.4 We presume

judicial impartiality.5 Further, “mere violations of the Code of Judicial Conduct

alone, do not constitute reversible error . . . , and . . . [u]nethical conduct . . . is

not necessarily a legal ground for reversal.”6 Judicial bias may serve as a ground

for recusal only if it “is shown to be of such a nature and to such an extent as to

deny a defendant due process of law.”7 It is a defendant’s burden to show at the

hearing that the trial judge has such bias.8

2 Tex. R. Civ. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 120–21 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). 3 Wesbrook, 29 S.W.3d at 120–21. 4 Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918 (1993). 5 Wesbrook, 29 S.W.3d at 121. 6 Id. (quoting Kemp, 846 S.W.2d at 306). 7 Id. 8 Id.

2 In his April 2010 motion to recuse, Appellant alleged that he believed that

because of his known association with the Aryan Brotherhood, he would not

”receive an impartial, unbiased, and objective trial” with the presiding district

judge and that the presiding district judge’s “impartiality” could “be reasonably

questioned due to the Judge’s personal bias or prejudice concerning gang-

related activities and affiliations.”

Appellant’s sole evidence at the April 30, 2010 hearing was a video

recording of the trial judge discussing in a public interview a 2006 aggravated

assault with a deadly weapon, three perpetrators of which were also members of

the Aryan Brotherhood. The trial judge described the perpetrators as “tough

guys”; he described the Aryan Brotherhood generally as “bad, bad dudes” who

“enjoy that kind of criminal activity, that assaultive, even murderous activity.” The

trial judge continued, “It’s scary [that this crime] happened right here in our

community . . . . [We’re] sleeping with the Aryan Brotherhood.” Even though his

case had been filed in the trial judge’s court more than a year, Appellant put on

no evidence to show that the trial judge had exhibited any bias toward him, nor

did he offer evidence that the trial judge had shown bias toward any other Aryan

Brotherhood members in his court, including those described in the 2006

interview. The State put on no evidence at the hearing.

Additionally, despite Appellant’s argument that the jury pool was tainted,

we see no evidence in the record that the jury knew about the 2006 interview or

that it knew the trial judge’s views of the Aryan Brotherhood. Further, Appellant

3 does not contend that the trial court abused its discretion by admitting evidence

concerning the Aryan Brotherhood and his connection to it.

Applying the appropriate standard of review, we hold that the regional

presiding judge did not abuse his discretion by denying Appellant’s motion to

recuse the trial judge. We therefore overrule Appellant’s sole point and affirm the

trial court’s judgment.

LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: March 24, 2011