DocketNumber： 06-08-00127-CR
Filed Date： 7/1/2008
Status： Precedential
Modified Date： 9/7/2015
Richard King has filed an attempted interlocutory appeal from an order by an appointed judge denying his motion to recuse the sitting judge in the prosecution against him.
The procedures for recusal of judges set out in the Texas Rules of Civil Procedure apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding Rule 18a applicable to criminal cases). (1)
As a general rule, an appellate court may consider appeals by criminal defendants only after conviction. See Ex parte Shumake, 953 S.W.2d 842, 844 (Tex. App.--Austin 1997, no pet.). Intermediate appellate courts have no jurisdiction to review interlocutory orders absent express authority. See Tex. R. App. P. 25.2(b)(2); Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.--Fort Worth 1996, no pet.).
In this case, we have no authority to consider such an interlocutory appeal, and Rule 18a(f) of the Texas Rules of Civil Procedure states that a denial of the motion may be reviewed by appeal from the final judgment. See Tex. R. Civ. P. 18a(f). We do not have jurisdiction to review the propriety of a denial of a motion to recuse via interlocutory appeal. See Tex. R. Civ. P. 18a(f); Rio Grande Valley Gas Co. v. City of Pharr, 962 S.W.2d 631, 638 (Tex. App.--Corpus Christi 1997, writ dism'd w.o.j.).
We dismiss the appeal for want of jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 30, 2008
Date Decided: July 1, 2008
Do Not Publish
1. The refusal of a defendant's motion to disqualify is reviewable only for abuse of discretion. Tex. R. Civ. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000).
ause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003).
Under current law, sudden passion is a mitigating circumstance at punishment that can reduce the level of the offense. Tex. Penal Code Ann. § 19.02(c), (d) (Vernon 2003). Before a defendant is entitled to a jury instruction on sudden passion, he or she must prove that there was an adequate provocation; that a passion or an emotion such as fear, terror, anger, rage, or resentment existed; that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide. McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).
A jury should receive a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino, 100 S.W.3d at 238. However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id.
Johnson directs us to a DVD recording of an interview of her shortly after the stabbing as evidence showing her state of mind. She argues this shows Arnold provoked an emotional reaction in Johnson when he did not leave despite being told to do so, when he verbally abused her, and when he pursued her for sexual favors.
Although Arnold's behavior apparently did cause an emotional response in Johnson, the position she consistently took in the recorded videotaped interview, in her own live testimony, and in her written statement was that the stabbing was accidental, not the result of an emotionally provoked intentional act. While that does not end the inquiry, the lack of evidence of sudden passion does end it.
Although an accident defense during the guilt phase of the trial does not preclude a sudden-passion instruction at punishment, there must be some evidence to indicate that the appellant acted under the influence of sudden passion, even if that evidence is contrary to other evidence in the case.
McKinney, 179 S.W.3d at 571. The trial court ruled in McKinney that, when the provocation included only yelling at and pushing the defendant, those actions did not "rise to the level of adequate cause" and there was no evidence the verbal abuse and physical pushing "produced a degree of anger, rage, resentment, or terror . . . sufficient to render [defendant's] mind incapable of cool reflection." Id. at 570.
Here, there is no evidence--not in Johnson's live testimony, her recorded interview, or her written statement--that Arnold's provocative behavior provided adequate cause for the stabbing or that the provocation produced in Johnson sufficient emotions to have rendered her mind incapable of cool reflection. Under these facts, we cannot conclude the trial court erred by failing to give the jury an instruction on the issue of sudden passion at punishment.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 7, 2006
Date Decided: January 8, 2007
Do Not Publish
McKinney v. State , 2005 Tex. Crim. App. LEXIS 1967 ( 2005 )
Wesbrook v. State , 2000 Tex. Crim. App. LEXIS 86 ( 2000 )
Ex Parte Shumake , 1997 Tex. App. LEXIS 5118 ( 1997 )
Apolinar v. State , 1991 Tex. Crim. App. LEXIS 150 ( 1991 )
McKown v. State , 1996 Tex. App. LEXIS 177 ( 1996 )
De Leon v. Aguilar , 2004 Tex. Crim. App. LEXIS 69 ( 2004 )
Rio Grande Valley Gas Co. v. City of Pharr , 962 S.W.2d 631 ( 1997 )