In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00110-CR No. 07-24-00111-CR No. 07-24-00112-CR No. 07-24-00113-CR No. 07-24-00114-CR
LARRY GLEN ROLEN II, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court Nos. 081970-E-CR, 081971-E-CR, 081972-E-CR, 081973-E-CR & 082335-E-CR, Honorable Douglas Woodburn, Presiding
May 9, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, Larry Glen Rolen II, was convicted by a
jury of five counts of intoxication manslaughter. 1 By his three issues, he challenges: (1)
the denial of his motions to strike certain veniremembers for cause; (2) the denial of his
1 TEX. PENAL CODE ANN. § 49.08. motion for recusal of the presiding trial judge; and (3) the assessment of costs multiple
times for a single criminal proceeding. We affirm as modified below.
BACKGROUND
On Christmas Eve in 2021, after drinking heavily at an Amarillo area bar, Appellant
drove home on the wrong side of a highway. He crashed into a family of five who were
on their way to dinner with relatives; not a single family member survived. Appellant was
initially sued civilly by the estates of the decedents, and the suit was settled and
dismissed. Nearly two years later, Appellant was prosecuted for five separate counts of
intoxication manslaughter, and the trial ended in a hung jury. Undeterred, the State chose
to retry Appellant in 2024.
During the voir dire examination in the retrial, Appellant’s attorney asked how many
of the veniremembers had seen news stories about the crash and would be influenced
by what they had seen. A large portion of the venire held up their hands, and Appellant’s
attorney moved to strike all of them for cause. The presiding judge attempted to
rehabilitate the panel members with further questioning. After the trial court was satisfied
the veniremembers were sufficiently rehabilitated, it denied Appellant’s motions to strike.
At that point, Appellant reiterated his motions to strike and exhausted his peremptory
strikes in attempting to eliminate as many of the objectionable veniremembers as
possible; he did not request additional peremptory strikes. Two of the objectionable
veniremembers were seated as jurors. After selection of the jury, Appellant’s counsel did
not notify the trial court which members of the empaneled jury were objectionable.
Before trial began, Appellant also filed a motion requesting the presiding judge
recuse himself because he had presided over the civil suit, and the settlement of the prior
civil suit had resulted in negative online comments which questioned the impartiality of 2 the presiding judge. The motion was heard by the administrative judge and, after hearing,
was denied.
The second trial resulted in a unanimous verdict of guilty on all counts. The jury
assessed punishment at forty-five years imprisonment.
ANALYSIS
ISSUE ONE—DENIAL OF MOTIONS TO STRIKE FOR CAUSE
Appellant’s first issue complains of the trial court’s denial of his motions to strike
veniremembers for cause during voir dire. Particularly, he argues the trial court was bound
by statute to strike the veniremembers who admitted they were influenced by news media
about the case and erred by engaging in further interrogation and rehabilitation of the
veniremembers.
Before we reach the merits, Appellant admits his counsel did not strictly follow the
procedures laid out to preserve error on the issue. To preserve error on a challenge to a
potential juror, the defendant must: (1) use a peremptory strike against the prospective
juror upon whom the challenge for cause had been made, (2) exhaust his peremptory
strikes, and (3) request an additional peremptory strike to use upon a specifically
identified objectionable prospective juror, who, because the extra strike was denied,
actually sits on the jury. Nava v. State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013).
Appellant’s counsel did not, after exhausting his peremptory strikes, request
additional strikes nor did he identify the remaining objectionable jurors to the trial court.
Appellant nonetheless argues he substantively fulfilled the requirements because two of
the jurors he objected to for cause were seated in the jury, and thus the trial court was
already aware of who the objectionable jurors were. Even if we were to accept this
rationale to fulfill the requirement to notify the trial court of objectionable jurors, Appellant 3 was still required to request additional strikes. Id. See also Nelson v. State, 848 S.W.2d
126, 134 (Tex. Crim. App. 1992). Appellant argues requesting more strikes from the trial
court would have been futile. However, there is no “futility” exception to the preservation
requirements, and his failure to expressly request additional strikes was not excused.
Supra.
Because Appellant failed to request additional peremptory strikes, he failed to
preserve this issue for review. Appellant’s first issue is overruled.
ISSUE TWO—MOTION TO RECUSE
For his second issue, Appellant complains his motion to recuse the trial judge
should have been granted because social media comments and posts from the public
demonstrated a lack of confidence in his impartiality. Appellant complains the trial judge
should have been recused under Rule 18b(b)(1), because commentary on news stories
indicated the public’s perception of the trial judge’s impartiality was compromised.
Appellant acknowledges his written motion at trial stated the grounds for recusal as Rule
18b(b)(3)—the trial judge had personal knowledge of disputed evidentiary facts—and
constitutional grounds, not Rule 18b(b)(1). Nonetheless, he urges because his counsel
orally argued Rule 18b(b)(1) during the hearing on the motion, the issue was preserved
for review. We disagree.
While Rule 18b of the Texas Rules of Civil Procedure provides the substantive
basis for the recusal of judges in criminal proceedings, Rule 18a provides the procedural
method to seek recusal. See Gaal v. State, 332 S.W.3d 448, 452 (Tex. Crim. App. 2011)
(trial judge may be removed from presiding over a case if subject to recusal under Texas
Supreme Court rules); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (Rule
18a applies to criminal cases absent any explicit or implicit legislative intent indicating 4 otherwise). The Rule 18a(a) procedures must be strictly complied with in order to
preserve error. Arnold, 853 S.W.2d at 544–45 (failure to comply with ten-day notice
provision of Rule 18a waived issue); accord Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex.
Crim. App. 2010) (compliance with Rule 18a notice provisions required to preserve error
in habeas proceeding). Under Rule 18a, a motion to recuse is required to be in writing
and state the specific grounds upon which the motion is based, including which provision
of Rule 18b applies. TEX. R. CIV. P. 18a(a). Because Appellant did not raise his Rule
18b(b)(1) arguments in his written motion, the issue was waived for appeal.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00110-CR No. 07-24-00111-CR No. 07-24-00112-CR No. 07-24-00113-CR No. 07-24-00114-CR
LARRY GLEN ROLEN II, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court Nos. 081970-E-CR, 081971-E-CR, 081972-E-CR, 081973-E-CR & 082335-E-CR, Honorable Douglas Woodburn, Presiding
May 9, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, Larry Glen Rolen II, was convicted by a
jury of five counts of intoxication manslaughter. 1 By his three issues, he challenges: (1)
the denial of his motions to strike certain veniremembers for cause; (2) the denial of his
1 TEX. PENAL CODE ANN. § 49.08. motion for recusal of the presiding trial judge; and (3) the assessment of costs multiple
times for a single criminal proceeding. We affirm as modified below.
BACKGROUND
On Christmas Eve in 2021, after drinking heavily at an Amarillo area bar, Appellant
drove home on the wrong side of a highway. He crashed into a family of five who were
on their way to dinner with relatives; not a single family member survived. Appellant was
initially sued civilly by the estates of the decedents, and the suit was settled and
dismissed. Nearly two years later, Appellant was prosecuted for five separate counts of
intoxication manslaughter, and the trial ended in a hung jury. Undeterred, the State chose
to retry Appellant in 2024.
During the voir dire examination in the retrial, Appellant’s attorney asked how many
of the veniremembers had seen news stories about the crash and would be influenced
by what they had seen. A large portion of the venire held up their hands, and Appellant’s
attorney moved to strike all of them for cause. The presiding judge attempted to
rehabilitate the panel members with further questioning. After the trial court was satisfied
the veniremembers were sufficiently rehabilitated, it denied Appellant’s motions to strike.
At that point, Appellant reiterated his motions to strike and exhausted his peremptory
strikes in attempting to eliminate as many of the objectionable veniremembers as
possible; he did not request additional peremptory strikes. Two of the objectionable
veniremembers were seated as jurors. After selection of the jury, Appellant’s counsel did
not notify the trial court which members of the empaneled jury were objectionable.
Before trial began, Appellant also filed a motion requesting the presiding judge
recuse himself because he had presided over the civil suit, and the settlement of the prior
civil suit had resulted in negative online comments which questioned the impartiality of 2 the presiding judge. The motion was heard by the administrative judge and, after hearing,
was denied.
The second trial resulted in a unanimous verdict of guilty on all counts. The jury
assessed punishment at forty-five years imprisonment.
ANALYSIS
ISSUE ONE—DENIAL OF MOTIONS TO STRIKE FOR CAUSE
Appellant’s first issue complains of the trial court’s denial of his motions to strike
veniremembers for cause during voir dire. Particularly, he argues the trial court was bound
by statute to strike the veniremembers who admitted they were influenced by news media
about the case and erred by engaging in further interrogation and rehabilitation of the
veniremembers.
Before we reach the merits, Appellant admits his counsel did not strictly follow the
procedures laid out to preserve error on the issue. To preserve error on a challenge to a
potential juror, the defendant must: (1) use a peremptory strike against the prospective
juror upon whom the challenge for cause had been made, (2) exhaust his peremptory
strikes, and (3) request an additional peremptory strike to use upon a specifically
identified objectionable prospective juror, who, because the extra strike was denied,
actually sits on the jury. Nava v. State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013).
Appellant’s counsel did not, after exhausting his peremptory strikes, request
additional strikes nor did he identify the remaining objectionable jurors to the trial court.
Appellant nonetheless argues he substantively fulfilled the requirements because two of
the jurors he objected to for cause were seated in the jury, and thus the trial court was
already aware of who the objectionable jurors were. Even if we were to accept this
rationale to fulfill the requirement to notify the trial court of objectionable jurors, Appellant 3 was still required to request additional strikes. Id. See also Nelson v. State, 848 S.W.2d
126, 134 (Tex. Crim. App. 1992). Appellant argues requesting more strikes from the trial
court would have been futile. However, there is no “futility” exception to the preservation
requirements, and his failure to expressly request additional strikes was not excused.
Supra.
Because Appellant failed to request additional peremptory strikes, he failed to
preserve this issue for review. Appellant’s first issue is overruled.
ISSUE TWO—MOTION TO RECUSE
For his second issue, Appellant complains his motion to recuse the trial judge
should have been granted because social media comments and posts from the public
demonstrated a lack of confidence in his impartiality. Appellant complains the trial judge
should have been recused under Rule 18b(b)(1), because commentary on news stories
indicated the public’s perception of the trial judge’s impartiality was compromised.
Appellant acknowledges his written motion at trial stated the grounds for recusal as Rule
18b(b)(3)—the trial judge had personal knowledge of disputed evidentiary facts—and
constitutional grounds, not Rule 18b(b)(1). Nonetheless, he urges because his counsel
orally argued Rule 18b(b)(1) during the hearing on the motion, the issue was preserved
for review. We disagree.
While Rule 18b of the Texas Rules of Civil Procedure provides the substantive
basis for the recusal of judges in criminal proceedings, Rule 18a provides the procedural
method to seek recusal. See Gaal v. State, 332 S.W.3d 448, 452 (Tex. Crim. App. 2011)
(trial judge may be removed from presiding over a case if subject to recusal under Texas
Supreme Court rules); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (Rule
18a applies to criminal cases absent any explicit or implicit legislative intent indicating 4 otherwise). The Rule 18a(a) procedures must be strictly complied with in order to
preserve error. Arnold, 853 S.W.2d at 544–45 (failure to comply with ten-day notice
provision of Rule 18a waived issue); accord Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex.
Crim. App. 2010) (compliance with Rule 18a notice provisions required to preserve error
in habeas proceeding). Under Rule 18a, a motion to recuse is required to be in writing
and state the specific grounds upon which the motion is based, including which provision
of Rule 18b applies. TEX. R. CIV. P. 18a(a). Because Appellant did not raise his Rule
18b(b)(1) arguments in his written motion, the issue was waived for appeal.
We overrule Appellant’s second issue.
ISSUE THREE—ASSESSMENT OF COSTS
Appellant’s third issue complains he was assessed costs multiple times when
those costs should have been assessed only once because there was only one criminal
proceeding. 2 The State concedes error and agrees Appellant should not have been
assessed costs five separate times for the same trial. Accordingly, the bill of costs shall
be reformed to reflect only one instance of the assessment of costs. We sustain
Appellant’s third issue.
CONCLUSION
The judgments of conviction are affirmed in part and modified in part. We modify
the Judgment of Conviction by Jury and corresponding Bill of Cost [sic] entered in Trial
Cause Numbers 081971-E-CR, 081972-E-CR, 081973-E-CR, and 082335-E-CR in this
matter as follows:
2 See TEX. CODE CRIM. PROC. ANN. art. 102.073(a) (“In a single criminal action in which a defendant
is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”); Pruitt v. State, 646 S.W.3d 879, 884 (Tex. App.— Amarillo 2022, no pet.). 5 All costs identified in each Bill of Cost attached to each respective Judgment of Conviction by Jury entered in Trial Cause Numbers 081971-E-CR, 081972-E-CR, 081973-E-CR, and 082335-E-CR in this matter are hereby deleted. This deletion includes, but is not limited to, the following assessed costs:
• “County Consolidated Court Costs 1/2020” in the amount of $105.00;
• “Sheriff’s Reimbursement Fees” in the amount of $70.00;
• “State Consolidated court costs 1/2020” in the amount of $185.00;
• “Initial Amount Due:” in the amount of $360.00; and
• “Remaining Amount Due:” in the amount of $360.00.
As amended, the Bill of Cost in the above identified cause numbers should reflect
Appellant has not been assessed any sums and does not owe any sums of money. This
modification does not include the Bill of Cost attached to the Judgment of Conviction by
Jury entered in Trial Cause Number 081970-E-CR.
We also order the District Clerk to prepare amended bills of costs reflecting the
above deletions, and to provide the amended bills of costs to this Court, as well as to
Appellant and the Texas Department of Criminal Justice. See Ramos v. State, No. 07-
13-00447-CR, 2015 Tex. App. LEXIS 4715, at *6–7 (Tex. App.—Amarillo May 7, 2015,
no pet.) (mem. op., not designated for publication). Furthermore, this order of reformation
extends to any order to withdraw funds from Appellant’s inmate account.
The trial court’s judgments are affirmed as modified.
Alex Yarbrough Justice
Do not publish. 6