Waller, Christopher v. State

Opinion issued February 19, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00799-CR

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CHRISTOPHER WALLER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 892640

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MEMORANDUM OPINION

          A jury found appellant, Christopher Waller, guilty of aggravated sexual assault of a child and assessed punishment at nine years’ confinement. In six points of error, appellant contends that the trial court erred in admitting into evidence the results of DNA testing, because such results were not scientifically reliable; and that the administrative judge hearing appellant’s motion to recuse the Honorable Denise Collins erred (1) in denying his motion because appellant made a threshold showing that Judge Collins committed misconduct by participating in an ex parte communication that prejudiced her against appellant; and (2) in quashing appellant’s subpoena of Judge Collins to appear at the recusal hearing, which, in turn, denied appellant’s constitutional right to compel witnesses to attend his criminal trial, to confront witnesses, to cross-examine witnesses, and to due process.

Background

          Appellant was charged by indictment with aggravated sexual assault of a child. Subsequently, the trial court, Judge Denise Collins, held a bond-reduction hearing and lowered appellant’s bond due to his medical condition. At the bond-reduction hearing, appellant appeared to be “writhing in pain,” and unable to sit up. The next day, however, Mary Cone, a probation officer assigned to Judge Collins’s court, observed appellant looking remarkably recuperated, and she immediately conveyed to Judge Collins her impression of the surprising overnight improvement in appellant’s medical condition. As a result, Judge Collins called appellant back to court the following day and reviewed his medical records. According to appellant’s wife, these records were provided because Judge Collins suspected appellant was fabricating his injuries. However, Judge Collins did not raise appellant’s bond.

          Nevertheless, appellant filed a pretrial motion to recuse Judge Collins, alleging that she received ex parte communications regarding appellant, and questioning her impartiality. Judge Collins declined to recuse herself, and the motion was then assigned to Judge George Godwin. Appellant subpoenaed Judge Collins to appear at the recusal hearing and Judge Godwin quashed the subpoena. Ultimately, Judge Godwin denied appellant’s motion to recuse, and Judge Collins presided over appellant’s jury trial.

          At trial, the complainant testified that some of the sexual assault incidents occurred in the family’s garage. Before trial, a Houston Police Department (HPD) Crime Scene Unit officer obtained samples of dried fluid from the garage wall, and also recovered appellant’s blue coveralls from the garage. A serologist from the Houston Police Department Crime lab later determined that both the substances on the wall and from the coveralls were semen. Raynard Cockrell, a DNA analyst with the HPD Crime Lab, determined that appellant’s DNA was consistent with the semen found on the garage wall and coveralls. Cockrell further testified that the complainant’s and an unknown person’s DNA was also detected on the coveralls.          Appellant filed a pretrial motion requesting a Kelly hearing to determine the reliability of Cockrell’s expert scientific testimony. During the trial, outside the presence of the jury, the trial court proceeded with the Kelly hearing. Both sides questioned HPD DNA analyst Cockrell regarding his DNA analysis and technique. On several occasions, the trial court admonished appellant’s counsel to confine his questions to issues relevant to the Kelly hearing. After repeated attempts by the trial court to confine appellant’s counsel to questions relating to the Kelly factors, appellant’s counsel stated, “I’ll pass on the Kelly hearing and we can go directly to his testimony.” (Emphasis added).

          No further testimony was elicited regarding the Kelly issues. The jury returned to the courtroom and the State presented the testimony of its next witness, Dr. Margaret McNeese. Following McNeese’s testimony, Cockrell testified regarding his DNA analysis. During Cockrell’s testimony, appellant’s counsel did not raise any objection regarding the reliability of his testimony. Upon completion of Cockrell’s testimony, however, appellant’s counsel asked the trial court to strike the evidence as being “unscientifically [sic] reliable.” The trial court overruled counsel’s objection.

Discussion

DNA Evidence

          In his first point of error, appellant contends that the trial court erred in admitting the HPD crime lab’s DNA results because such results were not scientifically reliable. However, to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired, and either the trial court must have ruled on the issue, or the complaining party must have objected to the trial court’s failure to rule. Tex. R. App. P. 33.1. Failure to object in a timely and specific manner during trial forfeits appellate complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). This is true even though the error may concern a constitutional right of the defendant. Id.

          Here, the record shows that during the Kelly hearing regarding Cockrell’s anticipated testimony, appellant’s counsel abandoned his objection, stating, “I’ll pass on the Kelly hearing and we can go directly to his testimony.” (Emphasis added). In doing so, appellant waived any ruling on his motion challenging the scientific reliability of Cockrell’s testimony. Because appellant did not procure either a ruling on his Kelly motion, or a refusal to rule to which he objected, appellant has failed to preserve his complaint for appellate review. Tex. R. App. P. 33.1(a)(2)(A-B).

          Even if appellant had not waived ruling on his complaint, he thereafter failed to make any objection challenging the reliability of Cockrell’s testimony at any time during Cockrell’s testimony. Because appellant failed to object at his earliest opportunity, he preserved nothing for our review on this point. See Goldberg v. State, 95 S.W.3d 345, 368 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (To preserve error for appeal, appellant was required to make a timely, specific objection at the earliest possible opportunity.).

          We overrule appellant’s first point of error.

Motion to Recuse

          In his second point of error, appellant argues that the administrative judge who presided over his recusal hearing erred in denying his motion to recuse Judge Collins because appellant made a threshold showing that Judge Collins committed misconduct by participating in an ex parte communication that prejudiced her against him.

          Rule 18a of the Texas Rules of Civil Procedure governs a motion for recusal in trial courts. Tex. R. Civ. P. 18(a); Bruno v. State, 916 S.W.2d 4, 7 (Tex. App.—Houston [1st Dist.] 1995, no pet.). Rule 18b outlines the grounds for disqualification and recusal of judges. Tex. R. Civ. P. 18b. Under rule 18b, a judge must recuse herself in any proceeding in which her impartiality might be reasonably questioned, or in which she has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. Tex. R. Civ. P. 18b(2)(a-b).

          We review a ruling denying a defendant’s motion to recuse for abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000) (citing Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992)). Such a ruling should not be reversed if it is within the zone of reasonable agreement. Wesbrook, 29 S.W.3d at 120-21. The Court of Criminal Appeals has determined that “mere violations of the Code of Judicial Conduct alone, do not constitute reversible error . . ., and [u]nethical conduct is not necessarily a legal ground for a reversal.” Id. at 121 (quoting Kemp, 846 S.W.2d at 305). A reversal is warranted only in those cases in which the bias is shown to be of such a nature and extent as to deny a defendant due process of law. Id; see also Kemp, 846 S.W.2d at 305 (Recusal is appropriate if the movant has provided enough facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court, but only when the bias is of such a nature and extent as to deny the movant due process of law.).

          During appellant’s recusal hearing, Cone, a probation officer assigned to Judge Collins’ court, testified that she informed Judge Collins of her observation of appellant, and her impression that appellant’s condition appeared remarkably improved as compared to his debilitated appearance during his bond-reduction hearing on the previous day. At the bond hearing, Judge Collins had lowered appellant’s bond due to his medical condition. Following Cone’s report, Judge Collins required appellant to return to court the next day and to present his medical records for her review.

          Appellant’s wife testified that she understood Judge Collins was accusing appellant of fabricating his injuries. She further testified that she overheard Judge Collins tell appellant “that she did not like being hoodwinked and lied to, . . . [and that] she was going to keep an eye on him.” Nonetheless, after reviewing appellant’s medical records, Judge Collins allowed appellant to remain free on bond, and she did not reinstate the original amount of appellant’s bond.

          Appellant asserts that these facts show that Judge Collins participated in an ex parte communication that clearly prejudiced her against appellant. However, appellant has failed to provide enough facts that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the court. Kemp, 846 S.W.2d at 305. At most, appellant has shown that Judge Collins expressed skepticism regarding the validity of appellant’s medical condition. See Roark v. Mother Frances Hosp., 862 S.W.2d 643, 647 (Tex. App.—Tyler 1993, writ denied) (“healthy skepticism is not the equivalent of hostility, nor is indicative of bias or prejudice.”). There is no evidence, however, that Judge Collins’ suspicions transformed into a bias against appellant sufficient to deny him due process of law. Wesbrook, 29 S.W3d at 121.

          On the contrary, the evidence reflects that, after reviewing appellant’s medical records, Judge Collins neither revoked appellant’s bond, nor reinstated the original bond. Because appellant failed to meet his burden to show that Judge Collins possessed any bias, much less sufficient bias to interfere with his due process rights, we conclude that the administrative judge did not abuse his discretion in denying appellant’s motion to recuse Judge Collins. Wesbrook, 29 S.W3d at 121.   

          We overrule appellant’s second point of error.

Motion to Quash

          In his remaining four points of error, appellant contends that the administrative judge presiding over his recusal hearing erred in quashing his subpoena to have Judge Collins appear at the hearing. Specifically, appellant argues that the order quashing the subpoena denied his constitutional right to compel witnesses to attend his criminal trial, to confront witnesses, to cross-examine witnesses, and to due process by denying him his right to present a comprehensive case for recusal.

          Criminal defendants have a constitutional right to “compulsory process for obtaining witnesses.” Tex. Const. art. I, § 10. The right to compulsory process, however, is not absolute; rather, it is left to the trial court’s discretion. Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987) (citing United States v. Nixon, 418 U.S. 683, 702, 94 S. Ct. 3090, 3104 (1974), and Ross v. Estelle, 694 F.2d 1008, 1010 (5th Cir. 1983)).   

          In order to compel a judge to testify regarding her mental processes in arriving at a decision, appellant must show extraordinary circumstances that would justify compelling the judge to testify. Tate v. State, 834 S.W.2d 566, 569-70 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d); Thomas v. Walker, 860 S.W.2d 579, 582 (Tex. App.—Waco 1993, no writ). For example, when no substitute for a judicial witness is available, the demands of justice may require the testimony of a judge. Joachim v. Chambers, 815 S.W.2d 234, 238-39 (Tex. 1991). We do not face such circumstances in this case. The facts at issue here involve the communication Judge Collins received from probation officer Cone. During the recusal hearing, Cone testified regarding the substance of her communication to Judge Collins, and the subsequent hearing to review appellant’s medical records. Additionally, appellant’s wife and an acquaintance provided their own eyewitness-testimony regarding the events that transpired during appellant’s second bond hearing. Thus, the facts at issue were substantiated in ways other than the direct examination of Judge Collins. Thomas, 860 S.W.2d at 581.

          Accordingly, absent a threshold showing of improper conduct on the part of Judge Collins that would justify compelling her to testify, an inquiry into her mental processes in arriving at a decision would be improper. Tate, 834 S.W.2d at 569-70. Appellant has not shown bias or prejudice on the part of Judge Collins. Instead, the evidence shows that, despite any plausible suspicions regarding appellant’s representations of his medical condition, Judge Collins did not revoke appellant’s bond, nor reinstate the original amount of the bond. Because appellant has not shown any extraordinary circumstances that would justify compelling Judge Collins to testify, we find no error in the administrative judge’s ruling quashing the subpoena.  

          Accordingly, we overrule appellant’s four remaining points of error.

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Higley.

Do not publish. Tex. R. App. P. 47.2(b).