Roman v. State

145 S.W.3d 316, 2004 Tex. App. LEXIS 7363, 2004 WL 1834287
CourtCourt of Appeals of Texas
DecidedAugust 17, 2004
Docket14-03-00404-CR
StatusPublished
Cited by68 cases

This text of 145 S.W.3d 316 (Roman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roman v. State, 145 S.W.3d 316, 2004 Tex. App. LEXIS 7363, 2004 WL 1834287 (Tex. Ct. App. 2004).

Opinions

MAJORITY OPINION

WANDA McKEE FOWLER, Justice.

The jury convicted appellant of delivery of a controlled substance over 400 grams and assessed punishment at forty years’ confinement, and a $50,000 fine. Appellant is complaining about actions taken before his conviction — actions and words of the trial judge, who he claims could not consider the full range of punishment.

In a single issue, appellant complains that the trial judge should have been re-cused and that the judge hearing appellant’s motion to recuse erred in denying it. We hold that the trial judge exhibited a bias — a bent or tendency — but was not biased as contemplated by the case law. As a result, we affirm the denial of the motion to recuse because (1) the trial judge’s opinions about punishment were based on specific facts of the defendant’s case — reflecting an attempt to fit the punishment with the crime — and (2) the knowledge the trial judge gained about the case from trying a co-defendant was not knowledge gained from an extra-judicial source.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was accused of hand-delivering approximately one pound of a controlled substance to an undercover informant working for the Drug Enforcement Agency. Immediately after the transaction, agents from the Drug Enforcement Agency arrested appellant. Appellant pleaded not guilty to the charge by indictment of delivery of a controlled substance weighing over 400 grams. Appellant’s case was assigned to the 178th District Court in Harris County, Judge William Harmon presiding.

Before the punishment phase of the trial, appellant filed a motion to recuse Judge Harmon based on a dialogue they had when appellant’s counsel informed the Judge they would like him to assess punishment. In the motion, appellant primarily complained that Judge Harmon was unable to consider the full range of punishment. He claimed that this problem effectively removed his right to elect who assessed punishment — the judge or the jury^ — and that it deprived him of due process. Appellant supported this complaint with three comments Judge Harmon made: first, Judge Harmon explained that under a similar first-degree felony drug case, he gave the defendant life in prison; second, Judge Harmon suggested he would have given a longer sentence to appellant’s co-defendant than the jury assessed; and third, in a discussion between appellant’s trial counsel and Judge Harmon about punishment, the judge told appellant’s counsel that a jury — and not he— should assess punishment, because he was likely to impose a higher punishment than a jury.

Judge Harmon denied the motion to re-cuse and thereafter Judge Tracy Christopher presided over the recusal hearing. See Tex.R. Crv. P. 18a. Judge Christopher conducted a hearing and denied appellant’s motion.

[319]*319Appellant ultimately did go to a jury, which found appellant guilty as charged, sentenced him to forty years’ confinement in the Texas Department of Criminal Justice, Institutional Division, and ordered him to pay a $50,000 fine.

ANALYSIS

As noted earlier, in his sole point of error, appellant contends the conviction should be reversed because Judge Christopher denied the motion to recuse Judge Harmon, which in turn meant that appellant was forced to go to the jury for punishment rather than having a choice between the judge and the jury. Appellant contends Judge Harmon should have been recused because of both an arbitrary refusal to consider the entire range of punishment and because of bias. Under these allegations, recusal is appropriate (1) if the court arbitrarily refused to consider the evidence or imposed a predetermined punishment, or (2) if the appellant has provided sufficient facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court. Kemp v. State, 846 S.W.2d 289, 306 (Tex.Crim.App.1992); Jaenicke v. State, 109 S.W.3d 793, 796 (Tex.App.Houston [1st Dist.] 2003, pet ref'd); see also Tex.R. Civ. P. 18b(2).

When we review an order denying a motion to recuse, we overturn the order only if the trial court abused its discretion. See Tex.R. Civ. P. 18a(f); see also Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App.1993) (holding rule 18a applicable to criminal cases). The trial court abuses its discretion only if the ruling on the motion was not within the zone of reasonable disagreement. See Kemp, 846 S.W.2d at 306. We consider “the totality of the evidence” elicited at the recusal hearing. See id.

1. Arbitrary refusal to consider full range of punishment.

A court denies a defendant due process when it arbitrarily refuses to consider the entire range of punishment or imposes a predetermined punishment. See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983), overruled in part on other grounds by DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004); Jaenicke, 109 S.W.3d at 796. However, refusal to consider the entire range of punishment would not be arbitrary if certain facts were proved, and other mitigating facts not proved. See McClenan, 661 S.W.2d at 110. In the absence of a clear showing to the contrary, this court will presume that the trial court was neutral and detached. See id.; Steadman v. State, 31 S.W.3d 738, 741-42 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).

Appellant contends all of Judge Harmon’s comments related to punishment show that Judge Harmon arbitrarily refused to look at the lower range of punishment. Two facts in this case refute appellant’s argument.

First, the evidence presented at the re-cusal hearing refutes appellant’s claim. The recusal hearing record shows Judge Harmon expressly pronounced that if appellant elected to have him assess punishment, he would consider the full range of punishment: “I can consider the entire range of punishment in your case, Mr. [appellant]. Let there be no doubt about it....” Like the court in McClenan, we find these statements analogous to those of a juror who can consider the entire range of punishment, but perhaps not once she learns the facts of the case. During the recusal hearing appellant’s trial counsel also admitted that Judge Harmon made no commitment to punishment or guilt, and was going to great efforts to be fair to [320]*320appellant.1 The mere fact that the appellant fears that Judge Harmon arbitrarily refused to look at the lower range of punishment is insufficient cause to grant a motion for recusal.2

A second fact refutes appellant’s claim that the Judge arbitrarily refused to look at the lower range of punishment. Arbitrary means capricious or unreasonable, or a decision based on uninformed opinion. Judge Harmon’s statements were made after he presided over the trial of one of appellant’s co-defendants.

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Cite This Page — Counsel Stack

Bluebook (online)
145 S.W.3d 316, 2004 Tex. App. LEXIS 7363, 2004 WL 1834287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-v-state-texapp-2004.