Opinion
No. 05-99-01791-CR; No. 05-99-01792-CR; No. 05-99-01793-CR
Opinion issued May 20, 2003 Do Not Publish
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F99-00655-SH, F99-00654-SH, F99-00656-NH. AFFIRMED
Before Justices JAMES, WRIGHT, and RICHTER.
OPINION ON REMAND
Brian Alan Campbell pleaded guilty to two charges of tampering with government documents and one charge of forgery. Appellant pleaded true to the two enhancement allegations in each indictment. Pursuant to a plea bargain, the trial court sentenced appellant to five years' imprisonment and a $1000 fine in each case. Appellant brings one point of error on appeal, contending the administrative judge erred by denying appellant's motion to recuse the presiding judge.
Appellant's amended notice of appeal states he "was given permission by the trial court to appeal a pre-trial motion to recuse the trial judge pursuant to Rule 25.2(b)(3)(B) (C) Texas Rules of Appellate Procedure."
BACKGROUND
At the recusal hearing, appellant complained to the administrative judge that the presiding judge should be recused because of her bias as demonstrated by her conduct in previous hearings. Appellant stated that at a bond hearing on August 25, 1998, the presiding judge told appellant that if she had been the judge who had set appellant's bond, she would have doubled or tripled it. Appellant stated that at a February 1999 hearing, the presiding judge delayed accepting the ten-month plea bargain pending a pre-sentence investigation. During the investigation, the probation officers asked appellant if he was in a gang, and the officers told appellant the judge had directed them to ask appellant that; appellant "felt that was wrong." After reviewing the pre-sentence investigation, the trial court rejected the ten-month plea-bargained sentence. Appellant said the judge told him on the record that he "was part of a crime waive [sic] that hit Texas." Appellant said the judge told him she would accept a two-year sentence, but appellant refused to agree to such a sentence. Appellant "was also informed" the judge instructed the State to investigate appellant further, resulting in appellant being charged with additional counts of tampering with government documents. Appellant subsequently filed a "motion to nullify future indictments," which the judge denied "without consideration." Appellant then filed a complaint with the State Commission on Judicial Conduct about the judge's statement that appellant "was part of a crime waive [sic] that hit Texas." Appellant told the administrative judge, "I feel I would be prejudiced to continue on with her as my Judge, when she's constantly breaking plea agreements and she's demanding, putting demands on the District Attorney as how to proceed with my case. It's like I'm fighting her and the District Attorney at the same time." After hearing appellant's complaint, the administrative judge reviewed the records of the February 24 and 25, 1999 plea hearings where the presiding judge rejected the plea agreement. The record of that hearing shows the plea agreement was for 180 days confinement in the state jail and a $500 fine. In the record of the February 25, 1999 plea hearing, the presiding judge rejected the plea agreement without stating any reason for doing so. This record does not show the presiding judge stated appellant was part of a crime wave or that the judge would accept a two-year plea bargain. Nor do the records of the hearings show the presiding judge instructed the prosecutor to investigate appellant further. After hearing argument from the parties on the motion to recuse, the administrative judge denied the motion. Subsequently, appellant pleaded guilty, signed judicial confessions, and agreed to punishment of five years' imprisonment and a $1000 fine in each case.RECUSAL
In his sole point of error, appellant contends the administrative judge abused his discretion by denying appellant's motion to recuse the presiding judge. The court of criminal appeals has explained the grounds for recusal based on the bias of a trial judge as follows:A trial judge ruling on a motion alleging bias as a ground for disqualification must decide whether the movant has provided facts sufficient to establish that a reasonable man, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge. Bias may be a ground for disqualification only when it is shown to be of such nature, and to such extent, as to deny the defendant due process of law. Moreover, it is beyond rational dispute that before alleged bias becomes sufficient to warrant the disqualification of a judge, it "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).Kemp v. State, 846 S.W.2d 289, 305-06 (Tex.Crim.App. 1992) (citations omitted). The judge hearing the motion to recuse determines the credibility of the witnesses. See Morris v. State, 692 S.W.2d 109, 110 (Tex.App.-El Paso 1984, pet. ref'd). An appellate court will not reverse the denial of a motion to recuse unless the record shows the judge ruling on the motion abused his discretion. Kemp, 846 S.W.2d at 306. A judge's ruling is not an abuse of discretion if it is within the zone of reasonable disagreement. Id. We consider all the evidence elicited during the recusal hearing. Id. In this case, the administrative judge could disbelieve appellant's assertion of the presiding judge's comments during the February 24 and 25 plea hearings because the records of those hearings do not show the presiding judge made the statements. Those records show the presiding judge refused to accept a plea agreement of 180 days in jail and a $500 fine, but the rejection of a plea agreement is not proof of bias. See State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 9 (Tex.Crim.App. 1983) ("Of course, the trial court remains free in every or any case . . . to reject a particular plea bargain entered into by the State and defense."). Appellant cites one case in support of his argument, Norton v. State, 755 S.W.2d 522 (Tex.App.-Houston [1st Dist.] 1988), pet. ref'd, 771 S.W.2d 560 (Tex.Crim.App. 1989) (per curiam). In Norton, the defendant's attorney asked the trial judge before trial if he would accept a plea agreement for deferred adjudication. Id. at 523. The trial judge answered, "No, and if the jury gives her probation, I'll give her jail time." Id. Appellant moved to recuse the trial judge, which was denied following a hearing by another judge. The Houston First District Court of Appeals determined the trial judge's statement was evidence of bias sufficient to require recusal, and the judge ruling on the motion to recuse abused her discretion by ruling otherwise. Id. at 524. In this case, the administrative judge was free to disbelieve appellant's statement that the presiding judge made comments during the February hearings indicating she was biased against appellant because the records of those hearings do not show the presiding judge made the comments. After reviewing all the evidence, we conclude the record does not show the administrative judge abused his discretion by denying appellant's motion to recuse the presiding judge. Even if the administrative judge should have granted the motion to recuse, we may not reverse unless the record shows appellant was harmed by the ruling. See Tex.R.App.P. 44.2. Assuming, without deciding, the error was constitutional, we do not reverse if the record shows beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. Tex.R.App.P. 44.2(a). In this case, appellant's conviction and punishment were determined by his decision to plead guilty and his agreement to the punishment of five years' imprisonment and a $1000 fine in each case. Nothing in the record shows appellant's guilty pleas were involuntary. Accordingly, we conclude the record shows beyond a reasonable doubt that the denial of appellant's motion to recuse the presiding judge did not contribute to appellant's convictions or punishment. We overrule appellant's sole point of error. We affirm the trial court's judgment.