Gamez v. State , 644 S.W.2d 879 ( 1983 )

REEVES, Justice.

Appellant was found guilty of capital murder, and the punishment assessed at life imprisonment. Appellant raises for the first time in a supplementary brief, that Honorable Roy Barrera, Jr., the trial judge, participated in the preparation of this case while serving the State as an assistant criminal district attorney. Although no motion questioning the qualifications of the trial court was brought to his attention, the issue of disqualification of the judge involves the jurisdiction of the court to act and should be considered by us in the interest of justice. Lee v. State, 556 S.W.2d 121, 122 (Tex.Cr.App.1977). The Texas Constitution provides in part, the following:

No judge shall sit in any case ... when he shall have been counsel in the case or....

Tex. Const, art. V, § 11 (Vernon 1955).

In addition, the Code of Criminal Procedure states that:

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.

Tex.Code Crim.Pro.Ann. art. 30.01 (Vernon 1966).

If the trial judge participated in any manner in the preparation and investigation of the case when he was a prosecutor, he would be a counsel for the State and hence disqualified. Lee v. State, 555 S.W.2d 121, 124-25 (Tex.Cr.App.1977); Prince v. State, 158 Tex.Cr.R. 65, 252 S.W.2d 945, 946 (1952).

The transcript reveals that on March 23, 1979, the State made the following announcement:

Now comes the State of Texas by and through its criminal district attorney and announces ready for trial in the above styled numbered cause.

(Signature! Roy R. Barrera. Jr. Assistant Criminal District Attorney Bexar County, Texas

When the State announces ready and there is no challenge to this announcement, it is presumed that the State is adequately prepared and ready for trial. Fraire v. State, 588 S.W.2d 789, 791 (Tex.Cr.App.1979); Barfield v. State, 586 S.W.2d 538, 542 (Tex.Cr.App.1979).

However, the sole indication of the judge’s prior participation in this case is found in the aforementioned State printed announcement of ready form which was filed nine days after appellant was indicted. The court’s docket sheet reflects that the State’s attorneys in the cause were Susan Reed and Paul Canales. The name of still another assistant criminal district attorney, Keith W. Burris, appears on the State’s second motion for psychiatric evaluation of appellant, which was filed April 17, 1979, nearly a month after the State’s announcement of ready.

We simply do not know whether the signature of Judge Barrera is a reflection of “participation in the preparation and investigation of this case” or not, especially in view of the indications in the record that others actually represented the State in this cause.¹ Indeed, the record suggests that the often-heard assertion that the State’s quick announcements of ready in criminal cases are made automatically and without regard to the State’s actual readiness at trial, may sometimes be well founded. This conduct, if true, makes a sham of the Speedy Trial Act, Tex.Code Crim.Pro.Ann. art. 32A.02 (Vernon 1981), and the trial court should not tolerate it.

The appeal is abated and the cause is remanded for an evidentiary hearing, to be conducted by another judge, on the question of Judge Barrera’s disqualification.

1 . Although it cannot be determined conclusively from the copy of the transcript before us, which is in photocopy form, it appears that the signature on the State’s announcement of ready may be a stamped facsimile rather than an original signature.