Anthony Whitney Norman, Jr. v. State ( 2012 )

Motion Denied and Order filed August 30, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00433-CR
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ANTHONY WHITNEY NORMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1248767
ORDER
On August 10, 2012, appellant, who is pro se in this appeal, filed a motion seeking
recusal of all justices on this court. In the motion, appellant asserted that the justices have
a conflict of interest because the court permitted the State to file its brief late and a
decision on the merits of appellant’s appeal has not been released, even though the cause
was submitted to a panel of justices on May 17, 2012. Alternatively, appellant asks the
court to rule immediately. This court follows the procedures set forth in Texas Rule of
Appellate Procedure 40. We determine appeals in criminal cases at the “earliest possible
time,” considering cases that are given precedence by law. Tex. R. App. P. 40.2.
Rule 16 of the Texas Rules of Appellate Procedure states that the grounds for
recusal are the “same as those provided in the Rules of Civil Procedure.” Tex. R. App. P.
16.2. Rule 18b(2) of the Texas Rules of Civil Procedure identifies the grounds for
recusal. Tex. R. Civ. P. 18b(2); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—
Waco 2001, pet. denied) (order). It provides, among other matters that a judge shall
recuse himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned or he has a personal bias or prejudice concerning a party. Tex.
R. Civ. P. 18b(2)(a), (b).
Rule 16.3 of the Texas Rules of Appellate Procedure prescribes the procedure to
be followed for recusal of an appellate justice or judge:
Before any further proceeding in the case, the challenged justice or judge
must either remove himself or herself from all participation in the case or
certify the matter to the entire court, which will decide the motion by a
majority of the remaining judges sitting en banc. The challenged justice or
judge must not sit with the remainder of the court to consider the motion as
to him or her.
Tex. R. App. P. 16.3(b).
When, as in this case, a party challenges all the members of the court, the motion
is decided by the court under the procedures set forth in Rule 16. See Cannon v. City of
Hurst, 180 S.W.3d 600, 601 (Tex. App.—Fort Worth 2005, no pet.) (order); Resendez v.
Schwartz, 940 S.W.2d 714, 714 (Tex. App.—El Paso 1996, no writ) (applying same
procedure under former rule 15(c)); see also Cameron v. Greenhill, 582 S.W.2d 775, 777
(Tex. 1979) (denying motion to disqualify entire Texas Supreme Court from considering
challenge to State Bar fee assessment).
Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the recusal
motion and prior to any further proceedings in this appeal, each of the challenged justices
of this court considered the motion in chambers. Id. Chief Justice Adele Hedges, Justices
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Kem Thompson Frost, Charles W. Seymore, Jeffrey V. Brown, William J. Boyce, Tracy
Christopher, Martha Hill Jamison, Sharon McCally, and J. Brett Busby each found no
reason to recuse themselves and certified the matter in writing to the remaining members
of the court en banc. See id. This court then followed the accepted procedure set out in
rule 16.3(b). See Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50
S.W.3d at 88. The justices, except for Justice Frost, then deliberated and decided the
motion to recuse with respect to each challenged justice by a vote of the remaining
participating justices en banc. No challenged justice sat with the other members of the
court when his or her challenge was considered. See Tex. R. App. P. 16.3(b); Cannon,
180 S.W.3d at 601.
Having considered the motion to recuse the court as to each challenged justice,
and finding no basis for recusal, the motion to recuse is DENIED, with Justice Frost not
participating in the en banc proceedings.
PER CURIAM
En Banc. (Frost, J. not participating in the en banc proceedings).
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