Richard King v. State

• Court: Court of Appeals of Texas
• Decided: July 1, 2008
• Docket: 06-08-00127-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00127-CR ______________________________

RICHARD KING, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 16606 HC-7

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Richard King has filed an attempted interlocutory appeal from an order by an appointed judge denying his motion to recuse the sitting judge in the prosecution against him.

The procedures for recusal of judges set out in the Texas Rules of Civil Procedure apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding Rule 18a applicable to criminal cases). ⁽¹⁾

As a general rule, an appellate court may consider appeals by criminal defendants only after conviction. See Ex parte Shumake, 953 S.W.2d 842, 844 (Tex. App.--Austin 1997, no pet.). Intermediate appellate courts have no jurisdiction to review interlocutory orders absent express authority. See Tex. R. App. P. 25.2(b)(2); Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.--Fort Worth 1996, no pet.).

In this case, we have no authority to consider such an interlocutory appeal, and Rule 18a(f) of the Texas Rules of Civil Procedure states that a denial of the motion may be reviewed by appeal from the final judgment. See Tex. R. Civ. P. 18a(f). We do not have jurisdiction to review the propriety  of  a  denial  of  a  motion  to  recuse  via  interlocutory  appeal.  See  Tex.  R.  Civ.  P. 18a(f); Rio Grande Valley Gas Co. v. City of Pharr, 962 S.W.2d 631, 638 (Tex. App.--Corpus Christi 1997, writ dism'd w.o.j.).

We dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 30, 2008

Date Decided: July 1, 2008

Do Not Publish

1. The refusal of a defendant's motion to disqualify is reviewable only for abuse of discretion. Tex. R. Civ. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000).

ause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003).

Under current law, sudden passion is a mitigating circumstance at punishment that can reduce the level of the offense. Tex. Penal Code Ann. § 19.02(c), (d) (Vernon 2003). Before a defendant is entitled to a jury instruction on sudden passion, he or she must prove that there was an adequate provocation; that a passion or an emotion such as fear, terror, anger, rage, or resentment existed; that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide. McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).

A jury should receive a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino, 100 S.W.3d at 238. However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id.

Johnson directs us to a DVD recording of an interview of her shortly after the stabbing as evidence showing her state of mind. She argues this shows Arnold provoked an emotional reaction in Johnson when he did not leave despite being told to do so, when he verbally abused her, and when he pursued her for sexual favors.

Although Arnold's behavior apparently did cause an emotional response in Johnson, the position she consistently took in the recorded videotaped interview, in her own live testimony, and in her written statement was that the stabbing was accidental, not the result of an emotionally provoked intentional act. While that does not end the inquiry, the lack of evidence of sudden passion does end it.

Although an accident defense during the guilt phase of the trial does not preclude a sudden-passion instruction at punishment, there must be some evidence to indicate that the appellant acted under the influence of sudden passion, even if that evidence is contrary to other evidence in the case.

McKinney, 179 S.W.3d at 571. The trial court ruled in McKinney that, when the provocation included only yelling at and pushing the defendant, those actions did not "rise to the level of adequate cause" and there was no evidence the verbal abuse and physical pushing "produced a degree of anger, rage, resentment, or terror . . . sufficient to render [defendant's] mind incapable of cool reflection." Id. at 570.

Here, there is no evidence--not in Johnson's live testimony, her recorded interview, or her written statement--that Arnold's provocative behavior provided adequate cause for the stabbing or that the provocation produced in Johnson sufficient emotions to have rendered her mind incapable of cool reflection. Under these facts, we cannot conclude the trial court erred by failing to give the jury an instruction on the issue of sudden passion at punishment.

We affirm the judgment.

Date Submitted: November 7, 2006

Date Decided: January 8, 2007