Whitehead v. State , 2008 Tex. Crim. App. LEXIS 760 ( 2008 )

273 S.W.3d 285 (2008)

Charles David WHITEHEAD, Appellant,
v.
The STATE of Texas.

No. PD-0713-07.

Court of Criminal Appeals of Texas.

June 25, 2008. Rehearing Denied September 10, 2008.

Frederick T. Dunbar, Abilene, for Appellant.

Sarah Adams, Assistant District Attorney, Eastland, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

The court of appeals held that the trial court judge was not statutorily disqualified from presiding over appellant's trial. We reverse.

On April 24, 2000, appellant pled guilty before the trial court to the felony offense of indecency with a child.^[1] The trial court assessed appellant's punishment at imprisonment for four years but suspended imposition of that sentence and placed him on community supervision for four years. At some point thereafter—the record does not reflect the precise date—the State filed a motion to revoke appellant's community supervision.

On August 14, 2003, the trial court held an evidentiary hearing on the State's motion to revoke. Among the State's witnesses at that hearing were appellant's probation officer, Mr. Joe Tucker, and appellant's therapist, Ms. Jan Keith. At the conclusion of the hearing, the trial court revoked appellant's community supervision and sentenced him to imprisonment for four years.

On August 15, 2003, appellant, who was incarcerated in the Eastland County Jail awaiting transfer to a state prison, sent a letter to his girlfriend. In the letter, appellant wrote, among other things, "I live to get out and kill that Judge, Mrs. Keith, Tucker, and their families and pets, and rape their women and children in front of them. That will teach them!" A jailer read appellant's letter during her routine monitoring of outgoing, non-privileged inmate mail, and she notified the appropriate authorities of the letter's threatening contents.

On January 15, 2004, an Eastland County grand jury returned an indictment charging appellant with the felony offense of retaliation.^[2] The indictment alleged that, on or about August 15, 2003, in Eastland County, appellant "did then and there intentionally and knowingly threaten to harm another, to-wit: Joe Tucker, by an unlawful act, to-wit: threatening to kill Joe Tucker in retaliation for and on account of the status of Joe Tucker as a witness."

On June 20, 2005, the State brought appellant to trial under the indictment on his plea of not guilty. The evidence presented at the trial, which evidence included a photocopy of appellant's letter, was to the effect that he had threatened Judge Herod, Ms. Keith, and Mr. Tucker because they had participated in the August 14, 2003, revocation hearing. Three times during appellant's trial, Judge Herod was specifically mentioned by name, before the jury, as one of those that appellant had threatened in the letter.

After hearing all of the evidence at the guilt stage, the jury found appellant guilty of retaliation as charged in the indictment. After hearing additional evidence at the punishment stage, the jury assessed appellant's punishment, enhanced by his prior felony conviction for indecency with a child, at imprisonment for fifteen years and a fine of $10,000.

On direct appeal, appellant, citing Article 30.01 of the Texas Code of Criminal Procedure, argued for the first time that the trial court's judgment was void because Judge Herod, as one of those threatened in appellant's letter, had been disqualified from presiding at his trial.^[3] Appellant argued further that Article 30.01 reflected a "compelling policy protecting against the appearance of judicial bias" and that "[s]imply because injury to Judge Herod [was] not alleged [in the indictment did] not diminish the statutory concern that he would be perceived by the public as a biased arbiter of a case arising out of the writing of this letter."

In its reply brief, the State conceded that the statutory disqualification of a trial court judge may be raised for the first time on appeal, but the State argued that "Judge Herod [was] not disqualified from hearing this case" because, "[w]hile appellant [did] threaten Judge Herod in the same manner he threatened Joe Tucker," "[t]he indictment [did] not allege any action of retaliation by appellant towards Judge Herod."

The court of appeals agreed with the parties that the statutory disqualification of a trial court judge may be raised for the first time on appeal, but the court rejected the argument that Judge Herod was disqualified in this case. Whitehead v. State, 220 S.W.3d 171, 174 (Tex.App.-Eastland 2007). The court reasoned that, within the meaning of Article 30.01, a trial court judge, in any particular case, is disqualified from presiding at the trial only if he is a victim named in the indictment. Ibid. "Judge Herod was not disqualified," the court explained, "because he was not an injured party in this case. The injured party in this case was Joe Tucker." Ibid. (emphasis in original).

Appellant later filed a petition for discretionary review, which we granted. See Tex.R.App. Proc. 66.3(d). In his petition and accompanying brief, appellant contends that the court of appeals interpreted Article 30.01 too narrowly, and that Judge Herod was, in this case, an injured party within the meaning of the statute even though he was not a victim named in the indictment. Appellant argues further that the purpose of Article 30.01 is to "disqualify the [trial court] judge in certain select situations where the public might think the judge is too close to the incident in question," and that "[r]eading the plain language of the statute in its entirety unambiguously disqualifies a judge who may have been injured in the same [criminal] transaction as the victim alleged in the indictment." "To hold otherwise," appellant continues, "would mean that the purpose of this vital statute could be easily thwarted by artful pleading on the State's part." In its reply brief, the State continues to insist that Judge Herod was not, in this case, an injured party within the meaning of the statute because he was not the victim named in the indictment.

Article 30.01 provides:

"No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code."

The earliest version of this statute was enacted in 1879, and it was identical in all pertinent respects to the present version. See January v. State, 36 Tex. Crim. 488, 38 S.W. 179, 179 (1896).

As we have noted, the court of appeals held that, within the meaning of Article 30.01, a trial court judge, in any particular case, "may be the party injured" only if he is a victim named in the indictment. We must determine whether the court of appeals interpreted the statute correctly.

When we interpret a statute such as Article 30.01, our constitutional duty is to determine and give effect to the apparent intent of the legislators who voted for it. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In determining this apparent legislative intent, we focus our attention on the text of the statute and ask ourselves, how would ordinary legislators have understood that text? Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 (Tex.Crim.App.1993).

Focusing on the text of Article 30.01, we think it apparent that the legislators who voted for it intended to ensure that criminal justice was administered free from bias or the appearance of bias. Certainly, a trial court judge who was a victim of the defendant might be biased against him or at least appear to be so, and allowing such a judge to preside over the defendant's trial would threaten the fair administration of justice and bring disrepute upon the judiciary. The legislators who voted for Article 30.01 may also have been trying to avoid the spectacle of having a trial court judge preside over a trial in which he, as a victim, might be called as a witness. See Tex.R. Evid. 605.

Although we are reasonably certain of the apparent intent underlying Article 30.01, we are somewhat less certain of the statute's exact meaning. It seems to us that the statute's first clause, the one in question today, commanding that "[n]o judge or justice of the peace shall sit in any case where he may be the party injured," is fairly susceptible to two interpretations. One could read that clause as the court of appeals did and conclude that a judge, in any particular criminal prosecution, "may be the party injured" only if he is a victim named in the indictment. Under that interpretation, both the judge and the parties would know before trial that he was statutorily disqualified and could conduct themselves accordingly. On the other hand, if one bore in mind the apparent intent underlying Article 30.01 and the fact that the opening clause of the statute contains the language "may be the party injured" and not "may be the party named in the indictment," one could read the opening clause as appellant does and conclude that a judge, in any particular criminal prosecution, "may be the party injured" if the evidence shows that he was among the defendant's victims in the criminal transaction or episode at issue.

Given this ambiguity in the statute, we may legitimately consider, in arriving at a sensible interpretation, such extratextual factors as legislative history or the probable consequences of a particular interpretation. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d at 587. Unfortunately, we know of no existing legislative history. Nevertheless, we conclude that the interpretation of the statute suggested by appellant will better advance the apparent intent of the legislators who voted for the statute. Thus, we interpret the opening clause of Article 30.01 to mean that a trial court judge, in any particular criminal prosecution, "may be the party injured," and is therefore disqualified from presiding, if the evidence shows that he was among the defendant's victims in the criminal transaction or episode at issue, such that a reasonable person would harbor doubts as to the judge's impartiality.

Because the evidence adduced at appellant's trial showed that Judge Herod was one of appellant's victims in the criminal transaction at issue (appellant's letter of August 15, 2003), such that a reasonable person would harbor doubts as to his impartiality, Judge Herod was statutorily disqualified from presiding at appellant's trial, and the resulting judgment of conviction was a nullity. We sustain appellant's ground for review.

It is not our intent, by this holding, to cast a shadow upon the trial judge. We have no doubt that his integrity is of the highest and that he would have recused himself had a motion for recusal been filed.

We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.

JOHNSON, J., also filed a concurring opinion, in which COCHRAN, J., joined.

KELLER, P.J., filed a dissenting opinion, in which KEASLER and HERVEY, JJ., joined.

JOHNSON, J., also filed a concurring opinion, in which COCHRAN, J., joined.

I join the majority opinion because the view it expresses appears to conform to the current state of the law. However, the current state of the law may not represent an accurate reading of precedent.

Our case law has long said that an issue of the disqualification of the trial judge was jurisdictional and could be raised for the first time on appeal.^[1] It has also been long true that the actions of a judge who is statutorily disqualified, and therefore without authority to act, are void.^[2] The difficulty is that the case law seems to confound authority and jurisdiction. In Davis v. State, 956 S.W.2d 555 (Tex.Crim.App. 1997), this Court addressed that difficulty.

"Jurisdiction in its narrow sense, is something possessed by courts, not by judges. The judge is merely an officer of the court, like the lawyers, the bailiff and the court reporter. He is not the court itself." Ex parte George, 913 S.W.2d 523 (Tex.Crim.App. 1995). "The authority and powers of a judge are incident to, and grow out of, the jurisdiction of the court itself." 48A C.J.S. Judges Section 54 (1981). Strictly speaking then, jurisdiction encompasses only the power of the tribunal over the subject matter and the person....

Similar to the tendency to confuse jurisdiction with authority is the practice in legal vernacular of referring to both the institution and the person presiding over it as the "court." Either or both of these common misconceptions led the Spindler [v. State, 740 S.W.2d 789 (Tex. Crim.App.1987)] plurality to reason "The question of the jurisdiction of the convicting court, or in this instance the jurisdiction or authority of the magistrate to act, may be raised at any time because judicial action without jurisdiction is void." Spindler, 740 S.W.2d at 791 (emphasis added). Spindler was relying on Gallagher [v. State, 690 S.W.2d 587 (Tex.Crim.App.1985)], which held, "The question of the jurisdiction of the convicting court may be raised at any time." However, Gallagher was a true jurisdictional issue. It dealt with the subject matter jurisdiction of the tribunal, which is constitutionally mandated. Spindler, on the other hand, dealt neither with the tribunal nor its constitutional jurisdiction. It dealt with the authority of a magistrate. Therefore, Spindler failed to perceive a difference between jurisdiction and authority and between the institution of the court and person acting for it.

In addition to equating these distinct concepts without analysis, Spindler's extension of Gallagher is wrong because a judge's lack of power or authority to act over a case has not always been held to be a question of jurisdiction, or mote precisely, has not always resulted in a holding that the conviction was void and subject to collateral attack....

While our case law has called the authority of the judge to preside a jurisdictional issue, we now disavow that characterization, because as we have explained, jurisdiction or judicial power is vested in courts, not individuals.

Id. at 557-59.

It appears to me that, after Davis, the authority of a judge to act, as opposed to the jurisdiction of the court, is not a jurisdictional question and must therefore be raised in the court; it may not be raised for the first time on appeal. The issue in this case revolves around the authority of a judge to act when he is statutorily disqualified. Perhaps it is time to reconsider this issue and hold that Davis overruled a claim of statutory disqualification of the presiding judge as a jurisdictional issue that may be raised for the first time on appeal. Alas, the parties have not raised this issue.

KELLER, P.J., dissenting in which KEASLER, and HERVEY, JJ., joined.

Until the jury sentenced him to fifteen years and a $10,000 fine, appellant seemed perfectly content for Judge Herod to preside over his trial. Appellant has now decided that he wants another crack at acquittal or a lesser sentence, and the Court gives him one. The Court has "no doubt" that the trial judge would have recused himself if appellant had filed a motion asking him to do so.^[1] Yet because one was not filed, the Court now overturns the conviction after the parties, the judge, and the jury have gone through the time and expense of a trial, and after appellant has gotten to weigh his present sentence against the chance of a better one from a different jury. Although some prior cases do say that the statutory disqualification of the trial judge can be raised for the first time on appeal,^[2] those cases are inconsistent with the Court's current trend regarding fundamental error.^[3] We should revisit the issue.

The rationale of these prior cases is that the trial judge's disqualification renders any judgment in the proceeding "void"^[4] or a "nullity,"^[5] subject to challenge at any time,^[6] even on habeas corpus.^[7] At least part of the articulated rationale for this conclusion was that the judge's lack of qualification affected the jurisdiction of the court.^[8]

But the validity of these propositions, which underlie the exception to the usual requirement to object, has eroded with the passage of time. Fifteen years ago, in Marin v. State, our "piecemeal" fundamental error jurisprudence was replaced by a three-category approach that, in some cases, changes whether complaints can be brought for the first time on appeal.^[9] Then in Davis v. State, we held that the trial judge's qualification to preside over a case was really a matter of authority rather than jurisdiction.^[10]

Finally, in Ex parte Richardson, we held that a claim of judicial disqualification— even of constitutional dimension—could not be brought for the first time on habeas corpus.^[11] We said there that the defendant could have raised his claim of a constitutional disqualification at trial and, if it was rejected there, complain on appeal.^[12]

I would abide by Texas Rule of Appellate Procedure 33.1.^[13] At least where the alleged judicial disqualification is based solely on statute—as in this case^[14]—the complaint should be brought to the trial court's attention in a timely fashion before relief can be obtained on appeal. Such a rule would give the trial judge the opportunity to correct the situation without the wasteful time and expense of trial and appeal.

NOTES

[1] The Honorable Steven R. Herod, judge of the 91st District Court, presided at all the trial court proceedings discussed herein.

[2] Texas Penal Code § 36.06(a) provides, in pertinent part, that "[a] person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant, witness, prospective witness, or informant." It is no defense to prosecution under this statute that the party threatened was not present when the threat was made. Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App. 1983).

[3] We have long recognized, and held, that if a trial court-judge is disqualified under Article 30.01 from presiding at a trial, then any resulting judgment is a nullity and may be challenged for the first time on appeal. See Wilson v. State, 977 S.W.2d 379, 380 n. 3 (Tex. Crim.App.1998); Davis v. State, 956 S.W.2d 555, 559 (Tex.Crim.App. 1997); Johnson v. State, 869 S.W.2d 347, 348-349 (Tex.Crim. App.1994); Gamez v. State, 737 S.W.2d 315, 318 (Tex.Crim.App. 1987); Ex parte Vivier, 699 S.W.2d 862, 863 (Tex.Crim.App. 1985); Lee v. State, 555 S.W.2d 121, 124 (Tex.Crim.App. 1977); Gresham v. State, 43 Tex. Crim. 466, 66 S.W. 845, 845 (1902); January v. State, 36 Tex. Crim. 488, 38 S.W. 179, 180 (1896); G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 42.259 (2nd ed.2001). The dissent concedes that these "prior cases do say that the statutory disqualification of the trial judge can be raised for the first time on appeal" but argues that "[w]e should revisit the issue" despite the fact that in the instant case, the State has never questioned the correctness of this line of cases, the court of appeals did not address it, and we did not grant review to consider it. We reject the dissent's argument. We are a reviewing court, and it is neither proper nor our usual practice to consider issues that have not been presented to and addressed by the court of appeals. See G. Dix & R. Dawson, 43A Texas Practice: Criminal Practice and Procedure §§ 44.21 & 44.24 (2nd ed. 2001 & Supp. 2007-2008) and cases cited therein.

[1] See, e.g., Johnson v. State, 869 S.W.2d 347, 348-49 (Tex.Crim.App. 1994); Gamez v. State, 737 S.W.2d 315, 318(Tex.Crim.App.1987); Lee v. State, 555 S.W.2d 121, 124 (Tex.Crim. App.1977); Ex parte Washington, 442 S.W.2d 391, 393 (Tex.Crim.App. 1969).

[2] See, e.g., Johnson v. State, 869 S.W.2d 347, 348-49 (Tex.Crim.App. 1994); Ex Parte Vivier, 699 S.W.2d 862, 863 (Tex.Crim.App. 1985); Lee v. State, 555 S.W.2d 121, 124 (Tex.Crim. App.1977); January v. State, 36 Tex. Crim. 488, 38 S.W. 179, 180 (Tex.Crim.App. 1896).

[1] See Court's op. at 289.

[2] Johnson v. State, 869 S.W.2d 347, 349 (Tex.Crim.App. 1994)(probate judge had no criminal jurisdiction); January v. State, 36 Tex. Crim. 488, 491-92, 38 S.W. 179, 179-80 (1896)(owner of stolen animal was brother of the judge).

[3] They also often reflect a failure to distinguish between statutory and constitutional disqualification.

[4] Johnson, 869 S.W.2d at 349.

[5] January, 36 Tex.Crim. at 491, 38 S.W. at 179.

[6] Johnson, 869 S.W.2d at 349.

[7] Ex parte Vivier, 699 S.W.2d 862, 863 (Tex. Crim.App.1985)(judge disqualified by constitution and statute); Ex parte Miller, 696 S.W.2d 908, 910 (Tex.Crim.App. 1985)(same), overruled by Ex parte Richardson 201 S.W.3d 712 (Tex.Crim.App.2006).

[8] Johnson, 869 S.W.2d at 349; Vivier, 699 S.W.2d at 863; January, 36 Tex.Crim. at 491, 38 S.W. at 179.

[9] Saldano v. State, 70 S.W.3d 873, 887-89 (Tex.Crim.App.2002)(discussing Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993)).

[10] 956 S.W.2d 555, 557-59 (Tex.Crim.App. 1997).

[11] 201 S.W.3d at 713-14.

[12] Id. at 714.

[13] Tex.R.App. P. 33.1 provides in part: "As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context."

[14] See Tex. Const. Art. V, § 11 (no reference to "party injured" language found in Tex.Code Crim. Proc. 30.01).