James Alva Elston v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00189-CR
JAMES ALVA ELSTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant James Alva Elston of burglary of a habitation
and unlawful possession of a firearm by a felon and, upon his pleas of true to two
enhancement paragraphs and three habitual paragraphs, assessed his
punishment at ninety-nine years’ confinement for each count. The trial court
sentenced him accordingly. In his sole point, Appellant contends that the trial
judge was biased and should have been recused from trying the case. Because
1
See Tex. R. App. P. 47.4.
we hold that Appellant did not satisfy his burden of proving that the trial judge
was so biased as to deny Appellant due process of law, we affirm the trial court’s
judgment.
We review the denial of a recusal motion for an abuse of discretion.2 We
may not reverse the regional presiding judge’s ruling on a recusal motion as long
as the ruling is within the zone of reasonable disagreement.3 In our review, we
consider the totality of the evidence admitted at the hearing.4 We presume
judicial impartiality.5 Further, “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 reversal.”6 Judicial bias may serve as a ground
for recusal only if it “is shown to be of such a nature and to such an extent as to
deny a defendant due process of law.”7 It is a defendant’s burden to show at the
hearing that the trial judge has such bias.8
2
Tex. R. Civ. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 120–21 (Tex.
Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).
3
Wesbrook, 29 S.W.3d at 120–21.
4
Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992), cert. denied,
508 U.S. 918 (1993).
5
Wesbrook, 29 S.W.3d at 121.
6
Id. (quoting Kemp, 846 S.W.2d at 306).
7
Id.
8
Id.
2
In his April 2010 motion to recuse, Appellant alleged that he believed that
because of his known association with the Aryan Brotherhood, he would not
”receive an impartial, unbiased, and objective trial” with the presiding district
judge and that the presiding district judge’s “impartiality” could “be reasonably
questioned due to the Judge’s personal bias or prejudice concerning gang-
related activities and affiliations.”
Appellant’s sole evidence at the April 30, 2010 hearing was a video
recording of the trial judge discussing in a public interview a 2006 aggravated
assault with a deadly weapon, three perpetrators of which were also members of
the Aryan Brotherhood. The trial judge described the perpetrators as “tough
guys”; he described the Aryan Brotherhood generally as “bad, bad dudes” who
“enjoy that kind of criminal activity, that assaultive, even murderous activity.” The
trial judge continued, “It’s scary [that this crime] happened right here in our
community . . . . [We’re] sleeping with the Aryan Brotherhood.” Even though his
case had been filed in the trial judge’s court more than a year, Appellant put on
no evidence to show that the trial judge had exhibited any bias toward him, nor
did he offer evidence that the trial judge had shown bias toward any other Aryan
Brotherhood members in his court, including those described in the 2006
interview. The State put on no evidence at the hearing.
Additionally, despite Appellant’s argument that the jury pool was tainted,
we see no evidence in the record that the jury knew about the 2006 interview or
that it knew the trial judge’s views of the Aryan Brotherhood. Further, Appellant
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does not contend that the trial court abused its discretion by admitting evidence
concerning the Aryan Brotherhood and his connection to it.
Applying the appropriate standard of review, we hold that the regional
presiding judge did not abuse his discretion by denying Appellant’s motion to
recuse the trial judge. We therefore overrule Appellant’s sole point and affirm the
trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 24, 2011
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