Opinion
No. 06-05-00107-CR
Submitted: February 21, 2006.
Decided: July 11, 2006. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 32177-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
After dark, one evening in June 2004, Officer Jarod Sears in Gregg County noticed a truck being driven without taillights. Suspicious, Sears began to follow the truck. After the truck swerved and narrowly missed striking the side of the bridge on which it traveled, Sears activated his overhead lights and siren. Marvin Dean Goodson, the driver of the truck, though driving slowly, did not pull over for at least two miles after Sears had activated his lights and siren. Goodson finally brought his truck to a stop in a grocery store parking lot, but not before tossing a few items out the window. Sears arrested Goodson. A search of Goodson's truck yielded a variety of drug paraphernalia. The State indicted Goodson on felony charges of evading detention with a vehicle. See TEX. PEN. CODE ANN. § 38.04(b)(1) (Vernon 2003). A Gregg County jury found Goodson guilty of those charges and assessed a two-year sentence and a $5,000.00 fine. We affirm Goodson's conviction and sentence, holding that (1) the trial judge was not disqualified from presiding over this case, (2) it was not error to deny Goodson's oral recusal motion urged the day of trial, (3) legally and factually sufficient evidence supports Goodson's conviction, and (4) Goodson waived his complaint regarding a disproportionate sentence. (1) The Trial Judge Was Not Disqualified from Presiding over This Case Goodson argues that, since the trial judge, Honorable Alvin R. Khoury, had been a prosecuting attorney in the district attorney's office when Goodson was convicted of possession of marihuana in 1979, Khoury is disqualified under Article 30.01 from presiding over the trial of this case. Goodson argues in terms of both disqualification and recusal. We address each issue. A trial judge is disqualified to preside over a case "where he [or she] has been of counsel for the State or the accused." See TEX. CODE CRIM. PROC. ANN. art. 30.01 (Vernon Supp. 2005). Disqualification under this provision requires that the trial judge "actually have participated in the very case which is before him [or her]." Holifield v. State, 538 S.W.2d 123, 125 (Tex.Crim.App. 1976). Because Article 30.01 makes disqualification mandatory under proper circumstances, courts have treated the subject as one affecting the trial court's jurisdiction. See Ex parte Vivier, 699 S.W.2d 862, 863 (Tex.Crim.App. 1985). Therefore, it is not necessary that an objection be made in order to bring the issue to this Court. See TEX. CODE CRIM. PROC. ANN. art. 30.01; Gamez v. State, 737 S.W.2d 315, 318 (Tex.Crim.App. 1987); Holifield, 538 S.W.2d at 125. Although, even without objection in the trial court, we are to review any such error, we find no error here. The record clearly demonstrates that Khoury never acted as counsel in the current case at any time. The trial judge is not disqualified merely because he or she previously represented the State in another, separate case. See Gamez, 737 S.W.2d at 318; Hathorne v. State, 459 S.W.2d 826, 829 (Tex.Crim.App. 1970); Brown v. State, 108 S.W.3d 904, 907 (Tex.App.-Texarkana 2003, pet. ref'd). This is true even if the conviction in which the trial judge did participate is used for enhancement purposes. See Griffin v. State, 487 S.W.2d 81, 83 (Tex.Crim.App. 1972); Brown, 108 S.W.3d at 907-08. Since the record demonstrates that Khoury was not disqualified from presiding over this case, we overrule Goodson's contention to the contrary. (2) It Was Not Error to Deny Goodson's Oral Recusal Motion Urged the Day of Trial In a related argument, Goodson argues that the trial court erred when he failed to recuse himself in response to Goodson's request. We overrule this contention, since Goodson's requests for recusal were insufficient to call on the trial judge to recuse himself or refer the matter to be assigned to another judge. Recusal of a trial judge is governed by Rule 18a of the Texas Rules of Civil Procedure, even in criminal cases. See TEX. R. CIV. P. 18a; Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App. 1993). Rule 18a sets out the prerequisites for a proper motion requesting the recusal of the trial judge. First, the motion must be filed at least ten days before trial. Second, the motion must be verified. Finally, the motion must state with particularity the grounds on which the defendant seeks recusal. We review a trial court's refusal of a motion to recuse for an abuse of discretion. See TEX. R. CIV. P. 18a(f); Kemp v. State, 846 S.W.2d 289, 306 (Tex.Crim.App. 1992). In a criminal case, the trial judge may make an initial determination whether the recusal motion complies with Rule 18a(a). If the motion does not comply, the trial judge is under no obligation to either recuse or refer the motion to be assigned to another judge. Bruno v. State, 916 S.W.2d 4, 7 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). If, however, the motion does comply with Rule 18a, the trial court must either recuse or refer the recusal motion to the presiding judge of the administrative region for assignment to another judge for hearing and disposition. See TEX. R. CIV. P. 18a(c); De Leon, 127 S.W.3d at 5. With that in mind, a trial court does not abuse its discretion when it fails to take action on an unverified motion seeking recusal. See Bruno, 916 S.W.2d at 8; Vargas v. State, 883 S.W.2d 256, 259 (Tex.App.-Corpus Christi 1994, pet. ref'd). Further, a failure to comply with Rule 18a's ten-day notice provision waives a complaint of the denial of an opportunity to have the motion heard by a judge other than the one assigned to the case. See Arnold, 853 S.W.2d at 544-45. No written motion was filed in this case. Goodson attempts to escape the consequences of this fact by pointing to three different portions of the record where, he argues, he put the trial court on notice of his grounds for seeking recusal. First, Goodson points out, a motion and an amended motion seeking recusal were filed in another case pending against Goodson before the same trial court. He relies on those motions to argue that the trial court was made aware of his grounds for seeking recusal and that the issue was properly before the trial court in the instant case. We disagree. The motion filed in the other case against Goodson was never brought before the trial court in this matter. Recusal often involves fact-specific inquiries, suggesting that a motion to recuse Khoury from this case must be filed in this case. This Court addressed a similar argument in Stafford v. State, 63 S.W.3d 502, 507 (Tex.App.-Texarkana 2001, pet. ref'd). In Stafford, the defendant filed a motion to recuse the trial judge from presiding over the proceedings on charges of retaliation, at the end of which Stafford was sentenced to community supervision. Id. at 506 (referring to appeal from original conviction in Stafford v. State, 948 S.W.2d 921 (Tex.App.-Texarkana 1997, pet. denied)). When, later, the State moved to revoke community supervision, Stafford did not file another motion to recuse the same trial judge from presiding over the revocation proceedings. See id. at 507. On appeal, Stafford complained that the trial court erred by failing to reconsider the preconviction motion. He argued that the motion to recuse filed in the original proceedings "carried forward" into the revocation proceedings. See id. We acknowledged that the two proceedings were related but concluded that, contrary to Stafford's position, he would have had to file a motion to recuse the trial judge in connection with the revocation proceedings to bring the matter before this Court. See id. Such a rule was necessary to ensure and protect the finality of the judgment in the earlier proceedings. See id. Here, too, the record suggests the other case, in which the motion was filed, may have been related to this case to some degree. However, we maintain our reasoning as stated in Stafford. To raise the issue of the trial judge's recusal as it relates to this case, Goodson would have had to file a motion in this case. Goodson also points to a pro se motion filed November 29, 2004, in which Goodson sought a speedy trial and argued that Khoury "should and will be sequestered." The overwhelming majority of this motion moves the trial court for a speedy trial and only in passing seeks that Khoury be "sequestered." This motion does not comply with the requirements of Rule 18a. Even if we were to very liberally construe the motion as one seeking Khoury's recusal, the motion still fails in that it is not verified and fails to set out the specific grounds on which Goodson relies in seeking recusal. See TEX. R. CIV. P. 18a. Finally, Goodson seems to contend that an oral discussion surrounding the whereabouts of the above-referenced pro se motion for speedy trial and "sequestration" served as an oral motion to recuse Khoury. This oral motion, he contends, sufficiently put the trial court on notice of the issue of recusal. During a break in voir dire, the attorneys and the trial court discussed Goodson's pro se motion. The brief exchange in connection with this oral motion is vague and, again, primarily entails a discussion of the location of Goodson's pro se motion for a speedy trial; very little of the exchange went to the merits of the motion. However, it is well established, regardless of the sufficiency of Goodson's oral motion to the trial court, that an oral motion does not satisfy Rule 18a. See Barron, 108 S.W.3d at 383. At least because Goodson failed to meet the requirements of Rule 18a, the trial court properly refused to act on this oral request for recusal on the day of trial. In the absence of a motion complying with Rule 18a, Khoury need not have taken action in response to Goodson's requests. The trial court did not abuse its discretion when it failed to take action on a vague, unverified pro se motion liberally construed as a motion to recuse; nor did it abuse its discretion when it denied Goodson's untimely, oral motion to recuse. We overrule Goodson's point of error. (3) Legally and Factually Sufficient Evidence Supports Goodson's Conviction "A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." TEX. PEN. CODE ANN. § 38.04 (Vernon 2003). Goodson asserts that the evidence is both legally and factually insufficient to prove his commission of that offense. We disagree. (a) The Evidence Was Legally Sufficient In reviewing the legal sufficiency of the evidence, we examine the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The jury can infer intent from other facts in the record. See Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). Sears testified that he observed Goodson's vehicle traveling northbound on Highway 271 without operational taillights. Sears testified that he turned around and pursued Goodson's truck. After Goodson swerved perilously, Sears activated his overhead lights and siren. Sears testified that Goodson continued to drive, making no attempt to pull over in response to the lights and sirens. Sears continued to follow Goodson along Highway 271 until Goodson turned right onto a different road and continued driving. Then, Goodson turned onto eastbound Highway 80 and, shortly thereafter, finally did pull over into a nearby parking lot. Sears testified as to the several places along the route taken in which Goodson could have easily and safely pulled his truck over. Officer Rex Haynes, responding to Sears' request for back up, also attempted to get Goodson to comply by using his public address system to direct Goodson to pull over. None of the officers' attempts were initially successful. Only after several minutes of pursuit did Goodson finally stop his vehicle, after tossing out some items, dropping a "crack" pipe, and stepping on the pipe on getting out of the vehicle. During the pursuit, Goodson gestured towards Sears and Haynes in a manner as if to ask what the officers wanted from him. Those gestures suggest that Goodson was aware of the officers' presence and pursuit. The videotape of the pursuit confirms that there were several locations along the route at which Goodson could have safely pulled over. It also shows that, despite the lights, sirens, and instructions over the public address system, Goodson continued to drive and fumble for items in the truck for over five minutes before he finally came to a stop in a parking lot. Considering the distance traveled, the number and degree of attempts to get Goodson to comply, and Goodson's actions during the pursuit and when finally pulling into a grocery store parking lot, we conclude the evidence is legally sufficient to support the jury's verdict. (b) The Evidence Was Factually Sufficient In our review of the factual sufficiency of the evidence concerning matters where the State has the ultimate burden of proof or persuasion, we employ the standards set forth in Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004) (citing Zuniga, 144 S.W.3d at 486)). When reviewing the factual sufficiency of the evidence, we defer to the fact-finder's determination of the credibility of the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Goodson issues a general challenge to the factual sufficiency of the evidence, arguing that he was driving too slowly to commit the offense and instead was simply waiting to find the best place to pull over. We read Goodson's contention as a challenge to the State's evidence of Goodson's intent to flee. We overrule his contentions because (i) speed is not an essential element of evading detention, and (ii) intent to flee can be inferred from facts in the record. (i) Speed Is Not an Essential Element of the Offense Sears acknowledged that, when he first began to follow Goodson, the two crossed a bridge and were in an area that would not allow Goodson to safely pull off the road. Sears also confirms that Goodson was traveling very slowly, about thirty-five to forty miles per hour. Sears described the incident as the slowest evading detention in which he had ever been involved. Nevertheless, the record shows that Goodson continued to drive — albeit rather slowly — well past the point at which Sears indicated it was unsafe to pull over. The pursuit began northbound on Highway 271, continued onto a different road, and ended shortly after Goodson turned eastbound onto Highway 80, spanning, at a minimum, two miles. In fact, Goodson continued to drive even after Haynes, over the public address system, directed Goodson to pull over. We add that speed, while generally associated with the offense of evading arrest, is not an essential element of the offense. See TEX. PEN. CODE ANN. § 38.04. Speeding is a distinct offense in and of itself, and Section 38.04 does not specifically incorporate the offense of speeding. See TEX. TRANSP. CODE ANN. § 545.351 (Vernon 1999). Section 38.04 requires that the actor "intentionally flee." The Texas Penal Code does not define the term "flee." We, therefore, look to the common meaning of the term. See TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App. 1996). To "flee" is "to run away." WEBSTER'S NEW COLLEGE DICTIONARY 427 (3d ed. 2001). While certainly we most often associate the term "flee" with speed, we think the definition leaves room for circumstances, such as here, where, although Goodson did not travel at a high rate of speed, his actions during the pursuit demonstrate his reluctance to stop or submit to the officer's authority, to get away from the officers, at least, for the time being. Indeed, here, it seems that Goodson was fleeing detention while he considered what he might do with the contraband in his vehicle. The videotape of the pursuit clearly shows Goodson reaching for items in his truck throughout the pursuit. While the slower speeds at which Goodson drove during the pursuit are some evidence arguably contrary to the jury's finding of guilt, this evidence is not so strong that it would prevent the State from meeting its burden of proof beyond a reasonable doubt. Such a result is consistent with the Texas Court of Criminal Appeals' decision in Hobbs v. State, 175 S.W.3d 777 (Tex.Crim.App. 2005). While the issue in Hobbs varies from the issue here, we consider it instructive in its construction and application of Section 38.04. In Hobbs, the Texas Court of Criminal Appeals was called on to decide whether the defendant, who had fled in his truck from police and then abandoned that truck in a field, had committed burglary when he later hid in a shed on nearby property. See id. at 778. Hobbs argued that the felony evasion was complete at the point at which he abandoned the truck and that, at most, he was committing a misdemeanor offense of evading detention when he hid in the shed. Id. at 778-79. Therefore, he argued, he did not commit the offense of burglary. Id. at 779. The Texas Court of Criminal Appeals disagreed, concluding that the felony offense of evading detention continued even as Hobbs entered the shed on foot and hid. Id. at 781. We note that these two actions, walking and hiding, do not involve high speeds. In fact, Hobbs does not mention, at any point, the speed at which Hobbs fled from the police. Section 38.04(b)(1) makes the offense of evading detention a felony offense if the actor "uses a vehicle" to evade arrest or detention. So, while high speeds during a pursuit is evidence tending to infer the intent to flee, the absence of a high speed chase is not fatal to the State's case since it is clear here that Goodson "used" a vehicle to evade detention as contemplated by Section 38.04(b)(1). (ii) Intent to Flee Can Be Inferred from Facts in the Record To the extent that Goodson argues that his slow speed precludes a finding that he intended to flee, we conclude that the jury could infer from other facts in the record that Goodson intended to flee from the police. See Manrique, 994 S.W.2d at 649. Although the videotape of the pursuit confirms Goodson's low speed, it does show several locations along the route at which Goodson could have safely pulled over. It also shows that, at several points, during the pursuit, Goodson veered out of his lane of traffic as he leaned over reaching for items in the cabin of the truck. In fact, at one point, he leaned over so far reaching for something that he is momentarily not visible through his rear window. Goodson continued to drive and fumble for items in the truck for over five minutes before he finally came to a stop in a grocery store parking lot. So, while Goodson did not commit the traffic violation of speeding, he did perform acts such as fumbling around his truck and veering out of his lane of traffic, from which the jury could infer that he intended to flee the officer. If Goodson maintains that his gestures to the officers demonstrate he did not know the officers wanted him to pull over, the officers' intent certainly would have become clear when Haynes used his public address system to direct Goodson to pull over. Goodson also has suggested that, due to his concern about police misconduct, he was waiting to find a well-lit area in which to stop. Such an argument is significantly weakened by Sears' testimony that there were several areas in which Goodson could have safely stopped. The videotape, too, undermines Goodson's argument by showing there was a wide shoulder on which Goodson could have stopped and by showing he drove on and off that shoulder a number of times as he reached around the cabin of his truck. In light of the previously-discussed legally sufficient evidence, the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt. Nor is the evidence contrary to the verdict strong enough to prevent the State from meeting its burden of proof beyond a reasonable doubt. Giving due deference to the jury's assessment of witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence was factually sufficient and, accordingly, overrule Goodson's evidentiary contentions. (4) Goodson's Complaint Regarding the Excessiveness of His Punishment Was Waived Goodson argues that his punishment, two years' confinement and a $5,000.00 fine, was excessive. We need not address the merits of this point of error because any complaint was waived in the trial court when, in response to the trial court's question whether there was any reason this sentence should not be formally pronounced, Goodson stated, "None at law, your Honor." Before we can address the issue of disproportionate sentencing on the merits, it must be preserved for our review. In Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.), we held that a defendant is required to raise in the trial court at the time the sentence is imposed any objection that it is disproportionate. Here, Goodson did not present this issue to the trial court by any means, objection or otherwise; but, in fact, affirmatively indicated that he did not have a complaint regarding the imposition of sentence. He, therefore, failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a); Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.-Texarkana 2002, no pet.); Jackson, 989 S.W.2d at 844. Even if Goodson would have preserved error with respect to his contention, we first note that two years' confinement is within the applicable range of punishment for a state-jail felony. We, therefore, could not say that Goodson's punishment was excessive. Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983). In Jackson, 989 S.W.2d at 845, this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex.App.-Texarkana 2000, pet. ref'd). In terms of the constitutional prohibition against grossly disproportionate sentences, Goodson also failed to demonstrate on appeal that this punishment is excessive. In Solem v. Helm, 463 U.S. 277, 290-92 (1983), the United States Supreme Court enunciated three factors for evaluating the proportionality of a sentence: (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Goodson does not demonstrate to this Court any of the above considerations. Therefore, even if Goodson were to have preserved the issue for our appeal, we would have overruled his contentions. We affirm the trial court's judgment.
This is not a new argument for Goodson. In an unpublished case, the Twelfth District Court of Appeals in Tyler concluded Khoury was disqualified from presiding over a revocation proceeding for having represented the State in the 1979 conviction for which probation was imposed. See Goodson v. State, No. 12-85-0086-CR, 1985 Tex. App. LEXIS 12769 (Tex.App.-Tyler Dec.10, 1985, no pet.). The prosecution of the 1979 case does not require Khoury's disqualification here since there is no claim or proof that the 1979 case is the same case as is currently before us.
Although not specifically raised in Goodson's brief, his disqualification argument has a constitutional basis as well. See TEX. CONST. art. V, § 11. If a trial judge is disqualified under the constitution, he or she is absolutely without jurisdiction in the case. See Lee v. State, 555 S.W.2d 121, 124 (Tex.Crim.App. 1977). A separate issue, recusal occurs when "a judge voluntarily steps down and those instances in which a judge is required to step down on motion of a party for reasons other than those enumerated as disqualifying in the constitution." See Degarmo v. State, 922 S.W.2d 256, 267 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).
There exists an exception to this rule when, through no negligence of his own, the defendant was not aware of the facts that would support his motion for recusal. See Barron v. State, 108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.). That exception is not applicable here since the record shows that Goodson knew of the facts on which he later sought recusal as much as five months before trial. And this exception does not relieve Goodson of his duty to comply with Rule 18a's other requirements. See id.
Had Goodson's motion complied with Rule 18a's requirements, the trial judge would have been required either to recuse himself or to refer the recusal motion to the presiding judge of the administrative region for assignment to another judge for hearing and disposition. See TEX. R. CIV. P. 18a(c); De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004).
Counsel indicates this other case was dismissed on conviction in the instant case.
A person commits the offense of burglary "if, without the effective consent of the owner, the person either (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation." TEX. PEN. CODE ANN. § 30.02(a)(1), (2) (Vernon 2003). In Hobbs, the State used the felony evading detention with a vehicle as the requisite felony element of the offense of burglary.
Evading detention, ordinarily a class B misdemeanor, becomes a state-jail felony when the State proves that the defendant used a vehicle in the commission of the offense. See TEX. PEN. CODE ANN. § 38.04(b). Goodson was, therefore, subject to a sentence from 180 days to two years and a fine of up to $10,000.00. See TEX. PEN. CODE ANN. § 12.35 (Vernon 2003).
The United States Supreme Court revisited this matter in Harmelin v. Michigan, 501 U.S. 957 (1991). Both the Fifth Circuit and the Dallas Court of Appeals have noted that, in Harmelin, five members of the Supreme Court rejected application of the three-factor test, although seven of the justices support an Eighth Amendment prohibition against grossly disproportionate sentences. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992); Davis v. State, 905 S.W.2d 655, 665 (Tex.App.-Texarkana 1995, pet. ref'd); Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.-Dallas 1994, pet. ref'd).