Thus, the provisions of Rule 18a obligating a trial judge to either recuse himself or refer the motion to the presiding judge of the administrative judicial district never come into play unless and until a formal timely, written and verified motion to recuse is filed. Spigener, 80 S.W.3d at 180; Moorhead, 972 S.W.2d at 95; Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd). In Sun Exploration Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex. 1989), Justice Franklin S. Spears stated that Rule 18a does not contemplate the situation in which a party cannot know the basis of recusal until after conclusion of the trial.
We hold that Appellant's motion, filed several days after the trial had commenced, was filed untimely. Thibodeaux v. State, 726 S.W.2d 601, 605 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd); Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet ref'd). There is no applicable rule of criminal procedure setting forth the requirements of a motion to recuse.
Defense testimony consistently labelled him the aggressor in fact. In Limon v. State, 632 S.W.2d 812, 815 (Tex.App. — Houston [14th Dist.] 1982, pet. ref'd), the court sets out the criterion when the evidence is offered for the purpose of showing the deceased was the aggressor: Before any evidence of the deceased's character for violence becomes admissible, however, there must be evidence of some act of aggression by the deceased which the character tends to explain (such as drawing a gun or reaching for a pocket where one is usually carried.)
Failure to comply with the ten day notice provision of Rule 18a bars complaint on appeal of the denial of a separate hearing before another judge on the motion to recuse. Accord: Thibodeaux v. State, 726 S.W.2d 601, 605 (Tex.App. — Houston [14th Dist.] 1987, no pet.); Autry v. Autry, 646 S.W.2d 586, 588 (Tex.App. — Tyler 1983, no writ); Gonzalez v. Gonzalez, 659 S.W.2d 900, 901-902 (Tex.App. — El Paso 1983, no writ); Limon v. State, 632 S.W.2d 812, 815 (Tex.App. — Houston [14th Dist.] 1982, pet. ref'd). Rule 18a obviously presupposes that litigants should not be able to halt judicial proceedings at will by the simple invocation of the mandatory provisions of Article 200a, section 6. See Chastain v. State, 667 S.W.2d 791, 795 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd).
Accordingly, we conclude Appellant did not establish an excuse for his failure to submit the necessary affidavits to support his request for a hearing on his motion. See Limon v. State, 632 S.W.2d 812, 815 (Tex. App.-Houston [14th Dist.] 1982, pet. ref'd) (concluding that trial court did not abuse its discretion in failing to hold hearing on appellant's motion for new trial where motion did not contain facts showing why he was unable to secure the necessary affidavits to support his claim of juror misconduct).
Thus, the provisions of Rule 18a obligating a trial judge to either recuse himself or herself or refer the motion to the presiding judge of the administrative judicial district never come into play unless and until a formal, timely, written, and verified motion to recuse is filed. Spigener, 80 S.W.3d at 180; Moorhead, 972 S.W.2d at 95; Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd). Some issues raised in Kennedy's appellate brief are either unconnected or loosely connected with Kennedy's underlying pleadings.
Thus, the provisions of Rule 18a obligating a trial judge to either recuse himself or refer the motion to the presiding judge of the administrative judicial district never come into play unless and until a formal, timely, written, and verified motion to recuse is filed. Spigener, 80 S.W.3d at 180; Moorhead, 972 S.W.2d at 95; Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd). Thus, if we read his issues to include an attack on the failure to refer the case to the administrative judge, that issue fails.
"The mandatory provisions in Rule 18a . . . never come into play unless and until a timely filed motion to recuse is filed." Beard v. Beard, 49 S.W.3d 40, 51 (Tex.App.-Waco 2001, pet. denied) (op. on orig. submission) (quoting Wright v. Wright, 867 S.W.2d 807, 811 (Tex.App.-El Paso 1993, writ denied)); accord, e.g., Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868 (1995); Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd); but see, e.g., Jamilah v. Bass, 862 S.W.2d 201, 202-203 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding) (even untimely or defective motion should be referred). Leon County's recusal motion was untimely.
Since there was no contested issue as to who was the aggressor, the trial court properly excluded the evidence of Wilson's deferred adjudication since it had no probative value. In Limon v. State, 632 S.W.2d 812, 815 (Tex.App. — Houston [14th Dist.] 1982, pet. ref'd), this court set out the criterion when the evidence is offered for the purpose of showing the deceased was the aggressor: Before any evidence of the deceased's character for violence becomes admissible, however, there must be evidence of some
The statement was at most an unguarded response to Appellant's apparent persistence in continuing to testify about events which the court had previously ruled were irrelevant. See Carrillo v. State, 591 S.W.2d 876, 893 (Tex.Crim.App. 1979); Limon v. State, 632 S.W.2d 812, 815 (Tex.App. — Houston [14th Dist.] 1982, pet. ref'd). We do not find that this comment or any other statement to which we were directed was reasonably calculated to benefit the State or prejudice Appellant.