Opinion
No. 05-02-00152-CR
Opinion Filed November 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F94-55999-QI. AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Reginald Turner appeals his conviction for aggravated sexual assault. After appellant pleaded guilty, the trial court, pursuant to a plea bargain agreement, deferred a finding of guilt and placed appellant on deferred adjudication probation for three years. Later, the term of probation was extended to ten years. Thereafter, the State filed a motion to adjudicate, alleging appellant had violated the terms of his probation. After a hearing, the trial court found appellant had violated the terms of his probation, adjudicated him guilty, and assessed punishment at twenty years' confinement. In three related issues, appellant contends (1) the administrative judge erred by failing to conduct a hearing on his motion to recuse; (2) the trial judge erred by denying his motion to recuse and forwarding the motion to the administrative judge without a written order of referral; and (3) he did not receive the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgment. To recuse a judge, any party may file a motion stating why the judge before whom the case is pending should not sit in the case. See Tex.R.Civ.P. 18a; Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App. 1993) (rule 18a applies in criminal cases). The motion must be filed at least ten days before the date set for trial or other hearing, must be verified, and must state with particularity the grounds for recusal. Tex.R.Civ.P. 18a. In criminal cases, the trial judge may make the initial determination about whether the recusal motion conforms with rule 18a. Arnold, 853 S.W.2d at 544-45. When, as here, an appellant fails to comply with the ten-day notice provision, any complaint about the denial of an opportunity to have their motions heard by a judge other than the one assigned to the case is waived. Arnold, 853 S.W.2d at 544-45. There are two exceptions to the ten-day notice requirement: (1) if a party did not know the grounds for recusal prior to ten days before the trial date or hearing, see Martin v. State, 876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.); or (2) if the motion for recusal is based on the constitutional disqualification of the trial judge. Soderman v. State, 915 S.W.2d 605, 608 n. 4 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd, untimely filed). The Texas Constitution prohibits a judge from sitting in any case in which they (1) have a financial interest; (2) are related to any of the parties; or (3) have been counsel in the case. Tex. Const. art, V, § 11; Soderman, 915 S.W.2d at 608 n. 4. Here, appellant filed his motion to recuse on April 11, 2001, the day before his adjudication hearing was scheduled. According to appellant, the trial judge's impartiality was in question because the trial judge "had discussion by telephone with the individuals (sic) that will serve as the main witness" against him. On April 13, 2001, the trial judge signed an order denying appellant's motion to recuse as untimely and resetting the adjudication hearing for April 19, 2001. In that order, the trial judge notes that appellant's counsel had "been aware of the facts forming the basis of his motion since March 23, 2001." After appellant failed to appear at the April 19th setting, the adjudication hearing was again reset and was conducted on April 27, 2001. Thus, the record shows appellant did not comply with the ten-day notice requirement of rule 18a and that neither exception to the ten-day notice requirement applies. Consequently, appellant has waived his right to complain about the denial of an opportunity to have his motion heard by a judge other than the one assigned to the case. See Arnold, 853 S.W.2d at 544-45. We overrule appellant's first and second issues. In his third issue, appellant contends his trial counsel was ineffective by failing to timely file a recusal motion. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001) ; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813-814. Here, appellant asserts his trial counsel was ineffective for failing to timely file a motion to recuse the trial judge. Appellant did not file a motion for new trial on ineffective assistance of counsel grounds; thus, the record provides no explanation of the motivation behind counsel's decisions. Because the record is silent, appellant has not shown there is no plausible basis for counsel's failure to timely file the motion for recusal. Further, there is no evidence in the record regarding the complained-of conversation. Thus, he has not shown a reasonable probability the result of the proceeding would have been different had he filed a timely motion to recuse. See Wesbrook v. State, 29 S.W.3d 103, 120 (Tex.Crim.App. 2000) (trial judge's ex parte conversations with prosecutors did not disqualify her from sitting because defendant failed to show she possessed bias of such a nature and to such an extent as to deny defendant due process); Madden v. State, 911 S.W.2d 236, 241 (Tex.App.-Waco 1995, pet. ref'd) (failure to file motion to recuse is not categorically deemed ineffective assistance of counsel). We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.
The motion to recuse does not identify the witness. At trial, the only witness called by the State was Peter Henschel, a clinical psychologist with a background in treating sex offenders. Henschel testified appellant was discharged from his court-ordered sex offender counseling program for failing to comply with the treatment plan.