Whitehead v. State

273 S.W.3d 285, 2008 Tex. Crim. App. LEXIS 760, 2008 WL 2512836
CourtCourt of Criminal Appeals of Texas
DecidedJune 25, 2008
DocketPD-0713-07
StatusPublished
Cited by38 cases

This text of 273 S.W.3d 285 (Whitehead v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitehead v. State, 273 S.W.3d 285, 2008 Tex. Crim. App. LEXIS 760, 2008 WL 2512836 (Tex. 2008).

Opinions

HOLCOMB, J.,

delivered the opinion of the Court, in which

MEYERS, PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

The court of appeals held that the trial court judge was not statutorily disqualified from presiding over appellant’s trial. We reverse.

On April 24, 2000, appellant pled guilty before the trial court to the felony offense of indecency with a child.1 The trial court [286]*286assessed appellant’s punishment at imprisonment for four years but suspended imposition of that sentence and placed him on community supervision for four years. At some point thereafter — the record does not reflect the precise date — the State filed a motion to revoke appellant’s community supervision.

On August 14, 2003, the trial court held an evidentiary hearing on the State’s motion to revoke. Among the State’s witnesses at that hearing were appellant’s probation officer, Mr. Joe Tucker, and appellant’s therapist, Ms. Jan Keith. At the conclusion of the hearing, the trial court revoked appellant’s community supervision and sentenced him to imprisonment for four years.

On August 15, 2003, appellant, who was incarcerated in the Eastland County Jail awaiting transfer to a state prison, sent a letter to his girlfriend. In the letter, appellant wrote, among other things, “I live to get out and kill that Judge, Mrs. Keith, Tucker, and their families and pets, and rape their women and children in front of them. That will teach them!” A jailer read appellant’s letter during her routine monitoring of outgoing, non-privileged inmate mail, and she notified the appropriate authorities of the letter’s threatening contents.

On January 15, 2004, an Eastland County grand jury returned an indictment charging appellant with the felony offense of retaliation.2 The indictment alleged that, on or about August 15, 2003, in East-land County, appellant “did then and there intentionally and knowingly threaten to harm another, to-wit: Joe Tucker, by an unlawful act, to-wit: threatening to kill Joe Tucker in retaliation for and on account of the status of Joe Tucker as a witness.”

On June 20, 2005, the State brought appellant to trial under the indictment on his plea of not guilty. The evidence presented at the trial, which evidence included a photocopy of appellant’s letter, was to the effect that he had threatened Judge Herod, Ms. Keith, and Mr. Tucker because they had participated in the August 14, 2003, revocation hearing. Three times during appellant’s trial, Judge Herod was specifically mentioned by name, before the jury, as one of those that appellant had threatened in the letter.

After hearing all of the evidence at the guilt stage, the jury found appellant guilty of retaliation as charged in the indictment. After hearing additional evidence at the punishment stage, the jury assessed appellant’s punishment, enhanced by his prior felony conviction for indecency with a child, at imprisonment for fifteen years and a fine of $10,000.

On direct appeal, appellant, citing Article 30.01 of the Texas Code of Criminal Procedure, argued for the first time that the trial court’s judgment was void because Judge Herod, as one of those threatened in appellant’s letter, had been disqualified from presiding at his trial.3 [287]*287Appellant argued further that Article 30.01 reflected a “compelling policy protecting against the appearance of judicial bias” and that “[sjimply because injury to Judge Herod [was] not alleged [in the indictment did] not dimmish the statutory concern that he would be perceived by the public as a biased arbiter of a case arising out of the writing of this letter.”

In its reply brief, the State conceded that the statutory disqualification of a trial court judge may be raised for the first time on appeal, but the State argued that “Judge Herod [was] not disqualified from hearing this case” because, “[w]hile appellant [did] threaten Judge Herod in the same manner he threatened Joe Tucker,” “[t]he indictment [did] not allege any action of retaliation by appellant towards Judge Herod.”

The court of appeals agreed with the parties that the statutory disqualification of a trial court judge may be raised for the first time on appeal, but the court rejected the argument that Judge Herod was disqualified in this case. Whitehead v. State, 220 S.W.3d 171, 174 (TexApp.-Eastland 2007). The court reasoned that, within the meaning of Article 30.01, a trial court judge, in any particular case, is disqualified from presiding at the trial only if he is a victim named in the indictment. Ibid. “Judge Herod was not disqualified,” the court explained, “because he was not an injured party in this case. The injured party in this case was Joe Tucker.” Ibid. (emphasis in original).

Appellant later filed a petition for discretionary review, which we granted. See Tex.R.App. Proe. 66.3(d). In his petition and accompanying brief, appellant contends that the court of appeals interpreted Article 30.01 too narrowly, and that Judge Herod was, in this case, an injured party within the meaning of the statute even though he was not a victim named in the indictment. Appellant argues further that the purpose of Article 30.01 is to “disqualify the [trial court] judge in certain select situations where the public might think the judge is too close to the incident in question,” and that “[rjeading the plain language of the statute in its entirety unambiguously disqualifies a judge who may have been injured in the same [criminal] transaction as the victim alleged in the indictment.” “To hold otherwise,” appellant continues, “would mean that the purpose of this vital statute could be easily thwarted by artful pleading on the State’s part.” In its reply brief, the State continues to insist that Judge Herod was not, in this case, an injured party within the meaning of the statute because he was not the victim named in the indictment.

Article 30.01 provides:

[288]*288“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code.”

The earliest version of this statute was enacted in 1879, and it was identical in all pertinent respects to the present version. See January v. State, 36 Tex.Crim. 488, 38 S.W. 179, 179 (1896).

As we have noted, the court of appeals held that, within the meaning of Article 30.01, a trial court judge, in any particular ease, “may be the party injured” only if he is a victim named in the indictment. We must determine whether the court of appeals interpreted the statute correctly.

When we interpret a statute such as Article 30.01, our constitutional duty is to determine and give effect to the apparent intent of the legislators who voted for it. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In determining this apparent legislative intent, we focus our attention on the text of the statute and ask ourselves, how would ordinary legislators have understood that text? Lanford v. Fourteenth Court of Appeals,

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Cite This Page — Counsel Stack

Bluebook (online)
273 S.W.3d 285, 2008 Tex. Crim. App. LEXIS 760, 2008 WL 2512836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehead-v-state-texcrimapp-2008.