He could also begin with a motion to dismiss. See Degarmo v. State, 922 S.W.2d 256, 266 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). But "a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant[] and may sometimes attenuate the strength of his claim."
The trial court has the task of acting as fact-finder on the venue question. Degarmo v. State, 922 S.W.2d 256, 262 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd); see also Hathorn v. State, 848 S.W.2d 101, 109 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 932 (1993). The trial court's decision will not be disturbed so long as it is within the realm of reasonableness.
To preserve error on appeal, the defendant must (1) use all of the defendant’s peremptory strikes, (2) ask for additional peremptory strikes and be denied them, (3) show that the defendant was forced to take an identified objectionable juror whom the defendant would not have accepted had the trial court granted the defendant’s challenge for cause or granted the defendant additional strikes. Degarmo v. State , 922 S.W.2d 256, 263 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). We review the trial court’s overruling of a challenge for cause, under an abuse-of-discretion standard.
When bias is alleged as a ground for recusal, a trial judge ruling on the motion must decide whether the movant has provided facts sufficient to establish that a reasonable person knowing all the circumstances involved would harbor doubts about the impartiality of the trial judge. See Kemp v. State, 846 S.W.2d 289, 305 (Tex.Crim.App. 1992); Degarmo v. State, 922 S.W.2d 256, 267 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The refusal of a defendant's motion for recusal is reviewable only for abuse of discretion.
However, his conviction was overturned, and, in 1994, a second jury convicted him of capital murder but sentenced him to life in prison where he remains. Degarmo v. State, 922 S.W.2d 256, 260 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). DeGarmo, 691 S.W.2d at 661.
Therefore, because the trial judge's recusal does not involve any intentional or negligent act by the State, we conclude that this delay had a valid, yet unknown, reason and should not weigh against either party. See, e.g., Degarmo v. State, 922 S.W.2d 256, 267 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd) (discussing recusal of trial judge in criminal case).
Failure to object at trial to the identification procedure, however, constitutes waiver. Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986) ("[W]e find and hold that the failure of the appellant to complain or object in the trial court about the out of court identification procedure or the in court identifications constituted a procedural default under our law, and, by failing to complain or object, for purposes of appeal, he waived the error."); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). We have searched the record and found no motion to suppress the pretrial identification on the ground that the procedure used was impermissibly suggestive.
See Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App.1986) (requiring defendant to complain or object in the trial court to preserve argument that pretrial identification was suggestive); see also Haq v. State, 01–11–01057–CR, 2013 WL 1890260, at *6 (Tex.App.-Houston [1st Dist.] May 7, 2013, no pet.); Degarmo v. State, 922 S.W.2d 256, 268 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).
Appellant did not preserve error on his objection to the pretrial identification by Norma.See Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986) (requiring defendant to complain or object in the trial court to preserve argument that pretrial identification was suggestive); see also Haq v. State, 01-11-01057-CR, 2013 WL 1890260, at *6 (Tex. App.—Houston [1st Dist.] May 7, 2013, no pet.); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). Accordingly, we address only appellant's complaints regarding his pretrial identifications by Mendiete and Johnson.
TEX. R. CIV. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000); Degarmo v. State, 922 S.W.2d 256, 267 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Judges have an obligation to decide the actionable matters properly within the jurisdiction of their courts; therefore, they should not recuse themselves unless a reasonable, disinterested person, cognizant of the circumstances, would consider recusal appropriate.