Gaal, George Anthony

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0516-10

GEORGE GAAL, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

DENTON COUNTY

Cochran, J., delivered the opinion of the unanimous Court .

O P I N I O N

George Gaal appealed his felony conviction for driving while intoxicated, contending

that the trial judge should have been recused for stating-before hearing any evidence-that

the only plea bargain he would accept would be for the maximum sentence. The court of

appeals agreed. It held that by "arbitrarily foreclosing the possibility of any plea bargain

other than one for the maximum punishment," the trial judge had forecast his inability to

consider the full range of punishment and thereby denied appellant due process. (1) The State

challenges the appellate court's interpretation of the facts and its application of the standard

of review. (2) We conclude that the evidence elicited at the recusal hearing supports the recusal

judge's decision-which is itself within the zone of reasonable disagreement.

I.

A. Factual background.

The evidence at trial showed that appellant was involved in a late-night, one-car

accident on a road near Interstate 35. A couple driving by stopped and found appellant on

the ground in front of his truck. He appeared disoriented but declined their assistance. The

couple went to a nearby truck stop and called 911, but then noticed appellant driving away.

They followed him in their car and watched as he slowly drove into a ditch, then sped out of

the ditch and pulled into the truck-stop parking lot, where he stopped. Police officers arrived

and, after performing field tests, determined that appellant was intoxicated. After appellant's

arrest, the officers found hydrocodone, an empty bottle of Crown Royal, and two empty beer

bottles in his truck.

Appellant was charged with felony DWI. For various reasons, the case lingered on

the district court's docket for many months. After appellant had twice violated his pre-trial

bond conditions, as well as changed his mind at a prior plea setting, he requested a second

plea setting on June 30, 2008. (3) At that hearing, however, appellant appeared with new

counsel and once again changed his mind and decided not to plead. The State then retracted

its plea offer, and the trial judge stated, "All right. We're supposed to have a plea here today.

It appears that Mr. Gaal does not want to plea. For the record, I will not accept any plea

bargain in this matter, unless it's for the maximum term of ten years."

The trial judge reset the bond hearing for July 3 rd , but on that date appellant filed a

motion to recuse the judge, based on his statement at the aborted plea hearing three days

earlier. The trial judge forwarded the motion to the presiding judge of the judicial district

to appoint a recusal judge to rule on the motion. On August 1 st , the recusal judge conducted

a hearing. Appellant argued that the trial judge's statement about refusing to accept any plea

bargain for less than the maximum showed that the trial judge had entered into the plea-

bargain process, could not be fair and impartial, and had demonstrated an arbitrary refusal

to consider the entire range of punishment.

The State explained the lengthy and convoluted history of the case to the recusal judge

and told him that appellant was supposed to be entering his guilty plea on June 30 th in

exchange for a two-year jail sentence. (4) Instead, appellant appeared with newly retained

counsel who were unaware of any time limit for a plea bargain. Defense counsel explained

to the recusal judge what happened next.

We were then informed that day of court that Mr. Gaal, it would be necessary

for him to plea that day or the offer would be removed off the table. Mr. Gaal

requested the Court, off the record, to . . . do a bifurcated plea in which he

could plea one day and then come back and have sentencing the next because

he is a business owner and would need to place his assets into receivership

while he was incarcerated.

The trial judge would not agree to postponing the sentencing date, and appellant then refused

to plead. With the State's offer off the table, the trial judge made the remark, "I will not

accept any plea bargain in this matter, unless it's for the maximum term of ten years."

The recusal judge denied appellant's motion to recuse. He first noted that "the trial

judge doesn't have to take a plea bargain." Second, he said that the record did not support

a finding that the trial judge's ruling was arbitrary because the case file showed that appellant

had had four or five violations registered on his interlock device while he was on bond. He

had not stopped drinking and attempting to drive afterwards. (5) The recusal judge stated that

the record before him "doesn't support a position that [the trial judge] had some

preconceived notion other than what was going on in this case, dealing with this defendant

and the defendant's history while the case was going on."

Appellant's jury trial began later in August. He pled guilty to the jury and, after

hearing the evidence, the jury sentenced him to ten years confinement. After the trial judge

denied his motion for new trial, appellant appealed.

B. The direct appeal.

On appeal, appellant argued, in part, that the recusal judge abused his discretion in

denying his motion to recuse. The court of appeals agreed. It relied on Norton v. State (6) and

Jefferson v. State (7) for the proposition that the trial judge had "forecasted his inability to

consider the full punishment range" and denied appellant due process when he stated that he

would consider a plea bargain only for the maximum punishment. (8) The court concluded that

the recusal judge had abused his discretion in denying appellant's motion to recuse. (9)

II.

A. Recusal law.

A Texas judge may be removed from presiding over a case for one of three reasons:

he is constitutionally disqualified; (10) he is subject to a statutory strike; (11) or, he is subject to

statutory disqualification or recusal under Texas Supreme Court rules. (12) "Generally, a

motion to recuse seeks to prevent a judge from hearing a case because of a nonconstitutional

reason, while grounds for disqualification are limited to those identified in the constitution." (13)

Rule 18b(2) of the Texas Rules of Civil Procedure sets out the law concerning recusal and

includes instances in which a judge must step down from hearing a case for reasons other

than the disqualifying grounds listed in the constitution. (14) Rule 18b(2) states, in relevant part,

that "A judge shall recuse himself in any proceeding in which: (a) his impartiality might

reasonably be questioned; [or] (b) he has a personal bias or prejudice concerning the subject

matter or a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding[.]" (15)

There is much overlap between these two subsections but, as one commentator has

noted, "The first basis for recusal provided by Rule 18b(2)-that a judge's impartiality might

reasonably be questioned-appears to be one that parties may use when in doubt as to any

more concrete reason why the judge should not preside." (16) As Justice Kennedy has stated,

a judge's impartiality might reasonably be questioned "only if it appears that he or she

harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set

aside when judging the dispute." (17)

Rule 18b(2)(b) is more specific: It covers how the judge feels and what the judge

knows. (18) A Texas court has held, for instance, that a trial judge's feeling of personal bias

was evidenced by ex-parte communications with the prosecutor that had the "trial court

providing guidance to the prosecutor on the presentation of his case and discussions

regarding the trial court's initial ruling regarding [the defendant's] ongoing request for an

interpreter." (19) A clear instance of "personal knowledge of disputed evidentiary facts"

requiring recusal arose in one unpublished case where, in a suppression hearing, the trial

judge interrupted and announced that he himself had observed the conduct that led to the

defendant's initial detention. (20) Generally, though, recusal is not required when based solely

on judicial rulings, remarks, or actions. These acts

almost never constitute a valid basis for a bias or partiality motion. In and of

themselves . . . , they cannot possibly show reliance upon an extrajudicial

source; and can only in the rarest circumstances evidence the degree of

favoritism or antagonism required . . . when no extrajudicial source is

involved. Almost invariably, they are proper grounds for appeal, not for

recusal. Second, opinions formed by the judge on the basis of facts introduced

or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would make fair judgment

impossible. (21)

Thus, a judge's remarks during trial that are critical, disapproving, or hostile to counsel, the

parties, or their cases, usually will not support a bias or partiality challenge, although they

may do so if they reveal an opinion based on extrajudicial information, and they will require

recusal if they reveal "such a high degree of favoritism or antagonism as to make fair

judgment impossible." (22) On the other hand, "expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the bounds of what imperfect men and women"

may display, do not establish bias or partiality. (23) Thus, a trial judge's ordinary efforts at

courtroom administration do not render him subject to recusal. (24) Although intemperate

remarks may well violate a rule of judicial conduct, such a violation does not necessarily

mean that the judge should be recused. (25)

Recusal has been required, however, when a trial judge revoked a defendant's bond

and put him in jail solely because he decided to invoke his right to a jury trial, (26) or when a

trial judge arbitrarily, without any evidence before him, refused to consider a portion of the

range of punishment. (27) Recusal of the trial judge in a criminal trial was also proper under

the reasonable-person standard where the trial judge's remarks evidenced "a degree of anger

and hostility toward the government that is in excess of any provocation that we can find in

the record," (28) or a personal prejudice against the defendant for successfully appealing his

conviction on the basis of the judge's actions during a prior trial. (29)

B. The standard of review.

An appellate court reviews an order denying a motion to recuse under an abuse of

discretion standard. (30) An appellate court should not reverse a recusal judge whose ruling on

the motion was within the zone of reasonable disagreement. (31) In its abuse-of-discretion

review, an appellate court considers the totality of the evidence and information elicited at

the recusal hearing to see if the record reveals sufficient evidence to support the recusal

judge's ruling that the trial judge was unbiased. (32) With these guiding principles in mind, we

turn to the present case.

III.

A. This court has jurisdiction to consider the State's petition.

Appellant raises a threshold issue. He argues that we do not have jurisdiction to

"review" the court of appeals's decision that "granted" appellant's motion to recuse because

Rule 18a(f) of the Texas Rules of Civil Procedure forecloses any method by which this

Court's jurisdiction can be invoked. Rule 18a(f) provides

If the [recusal] motion is denied, it may be reviewed for abuse of discretion on

appeal from the final judgment. If the motion is granted, the order shall not be

reviewable, and the presiding judge shall assign another judge to sit in the

case. (33)

But the court of appeals did not grant or deny appellant's motion to recuse; that was the job

of the recusal judge. The court of appeals found that the recusal judge abused his discretion,

but that is not the same as ruling on the motion itself. Appellant asserts that a failure to

define the mandate of the court of appeals as an "order" within the meaning of Rule 18a(f)

frustrates the rationale for the non-reviewability rule-that an order granting a motion to

recuse "should not be reviewable at any stage" since the litigants cannot be "harmed by

having a case proceed before a judge who is qualified to hear it." (34) Appellant quotes

testimony before the Texas Supreme Court Advisory Committee:

If the motion is granted, it is not a reviewable motion, the way the rule is

drafted, because what harm can come from having a trial by a fair judge, even

though it's not the fair judge you want. If it's granted, I mean if the motion is

granted, it's not reviewable. If it's denied, it is reviewable, but only on appeal

from the final judgment; not on an interlocutory basis. (35)

In this case, the recusal judge denied the motion, so appellant sought review on appeal from

the final judgment. The court of appeals reviewed that denial. And if the court of appeals

could review it, so can this Court. (36) Further, while litigants are not harmed by proceeding

before another judge when a recusal decision is made before trial, the party prevailing at trial

would be harmed by having to start its case all over before another judge when the recusal

judge is reversed on appeal after a full trial. We conclude that the non-reviewability doctrine

of Rule 18a(f) applies only when the recusal motion is granted at the trial-court level, not

when the recusal judge's denial of the motion is reversed on direct appeal. Thus, the decision

by the court of appeals is subject to our review. (37)

B. The recusal judge's denial of the motion to recuse was within the zone of

reasonable disagreement.

As noted above, the court of appeals relied on Norton v. State , (38) and Jefferson v.

State , (39) when it held that the trial judge's remark concerning a future plea bargain denied

appellant due process. (40) But the trial judges' comments in those cases promised, under

certain circumstances, jail time in one instance, and a 20-year sentence in the other. As the

State points out, the judges "unequivocally told the parties what the punishment would

actually be. No interpretation or expansion of the judges' words in those cases was necessary

to forecast an inability to consider the full range of punishment." (41) Two things-both

recognized by the recusal judge-distinguish the present case from those two cases.

First, the trial judge in this case gave no indication as to what sentence he would or

would not impose at a punishment hearing. He stated only that he would not accept a plea

bargain unless for the maximum term of ten years. And, as the recusal judge stated, "unless

they've changed the law . . . the trial judge doesn't have to take a plea bargain." The law has

not changed. A "trial judge may in every case or in any particular case refuse to allow plea

bargaining . . . . The defendant does not have an absolute right to enter into a plea bargain." (42)

As the Fourth Circuit put it,

To be sure, in order to preserve the effectiveness of the plea bargaining system,

courts usually will adopt most or all of the recommendations in a non-binding

plea agreement. Defendants enjoy no entitlement, however: plea bargains

impose obligations on the prosecution, not the courts. Thus, it cannot be an

abuse of discretion to deny a recusal motion predicated on the district court's

rejection of a plea agreement. (43)

The court of appeals noted a trial judge's right to refuse any plea bargain, but held that it

strains reason to believe that under the circumstances of this case-in which the

trial judge reacted against Gaal by foreclosing a plea bargain for all but the

maximum term specifically because he chose not to plead guilty-the judge

would have assessed less than the maximum term if Gaal had nonetheless pled

guilty without a plea bargain before the judge at trial. (44)

We disagree based on this record, the entire history of the case, and the information that both

the trial judge and the recusal judge had before them. The trial judge's comments could quite

logically and reasonably have been a short-hand rendition of a statement that it was time for

the defendant to quit shilly-shallying because he had twice rejected favorable plea

bargains-one the minimum possible jail time-and was continuing to drink in violation of his

bond conditions. Thus, the trial judge would not encourage further delay for more plea

bargaining (after all, who is going to accept a plea bargain for the "maximum"?); it was time

to try this case as soon as possible. The trial judge never intimated, nor is there anything in

the record that would logically support a finding, that he would not fairly consider the entire

range of punishment at trial. His comment, taken in light of the totality of the circumstances,

is more logically construed as an expression of impatience with a defendant who reneges on

his agreements to plead and to abide by the DWI bond conditions. A reasonable person,

based on the totality of the circumstances, would translate the judge's statement as, "I'm not

going to reset this case for any more plea negotiations; we're going to trial." That statement

does not suggest that the trial judge's impartiality might reasonably be questioned, and it is

not a basis for recusal. (45)

Second, this is the apparent conclusion that the recusal judge made based on his

assessment of the record. The recusal judge, who had taken judicial notice of the file and of

the transcript of the June 30 th hearing, noted,

Quite frankly, Counsel, looking at this file and what the Judge said on the

record, it doesn't support a position that he had some preconceived notion

other than what was going on in this case, dealing with this defendant and the

defendant's history while the case was going on.

That is, the judge's remark was based on "facts introduced or events occurring in the course

of the current proceedings, or of prior proceedings," which "do not constitute a basis for a

bias or partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible." (46) And here, they do not. The trial judge, perhaps

inarticulately, cut off plea bargaining. But he gave no indication about what sentence he

might impose at any punishment hearing. And the recusal judge, quite appropriately, refused

to speculate beyond the record before him.

Well, the thing about the statement of facts that you've given me, it

really doesn't give any indication of what was going through [the trial judge's]

mind. Everything you've told me is basically your take on what you thought

he was thinking. And then I'm-what I have to deal with is could there have

been any other reasons, other than the reason you've stated [that it was an

arbitrary and preconceived mindset], for the judge saying what he said . . . And

fortunately you've helped me because you asked me to take judicial notice of

the Court's file and I did.

Appellant sees this remark as encompassing a legal mistake-a reliance on a subjective

standard. Appellant is correct that a party moving for recusal does not have to prove what

is going through the trial judge's mind: he does not have to prove "actual bias." (47)

Under

Rule 18(b)(2)(a), showing that the trial judge's "impartiality might reasonably be questioned"

suffices. Rule 18(b)(2)(b) covers actual bias-"a personal bias or prejudice." The recusal

judge's remark, in context, was simply that there is nothing in the record to rebut the natural

inference that the trial judge's statement was based on appellant's pre-trial behavior-as

reflected in the Court's file. The file contained evidence of delaying tactics and continued

criminality on bond-an objectively reasonable basis to not consider a plea bargain. It was

appellant who speculated about what was going through the judge's mind and read more into

his statement than it fairly conveys.

Appellant also asserts that the recusal judge relied on the extra-judicial source

doctrine. At the recusal hearing, the recusal judge stated,

And under the rules of the case law involving recusals, while a bias or

prejudice is not something that a judge should have, it is permitted as long as

it's not extra-judicial. Meaning, if it's a biased position or an attitude based

upon what is going on in the case he's dealing with, that's okay.

As appellant notes, in Liteky, the Supreme Court narrowed the "extrajudicial source"

rule-which was used to disregard any and all judicial bias or partiality derived from opinions

formed by the judge on the basis of facts introduced or events occurring in the course of the

proceedings. (48) In fact, such bias or partiality may be grounds for a recusal motion, but only

if it displays "a deep-seated favoritism or antagonism that would make fair judgment

impossible." (49) And there was no such showing in this case.

C. Conclusion.

Because the trial judge's remark went only to plea bargaining and was supported by

facts introduced or events occurring in the course of the proceedings, the recusal judge did

not abuse his discretion in denying appellant's motion to recuse. We reverse the court of

appeals and remand the case to that court to consider appellant's remaining issues. (50)

Delivered: March 2, 2011

Publish

1. Gaal v. State, No. 2-08-382-CR, 2010 WL 323574 *3 (Tex. App.--Fort Worth Jan. 28,

2010) (not designated for publication).

2. The State's two grounds for review read as follows:

(1) Whether the court of appeals erred in holding that the recusal judge abused his discretion

where the court of appeals attached an additional meaning to the trial judge's statement

beyond its plain meaning, even though the recusal judge refused to speculate on other

meanings of the trial court's statement.

(2) Whether the court of appeals erred by failing to consider the totality of the evidence

elicited at the recusal hearing, thereby misapplying the appropriate standard of review that

required the court of appeals to affirm the recusal judge's ruling if it was within the zone

of reasonable disagreement.

3. Appellant was scheduled to plead guilty on April 7th, but he changed his mind and

requested a jury trial. The judge then reset the case for trial on August 19th. But on June 8th, the

State filed a second motion to revoke bond after appellant's SCRAM alcohol-detection device

alerted to alcohol consumption and an attempt to tamper with the device. The trial judge set the

State's motion to revoke bond hearing for July 11th, but, before that date, appellant's original

attorney requested another plea setting on June 30th-before the hearing on the motion to revoke

bond hearing. Understandably, he wanted his client to plead before his bond was revoked.

4. The prosecutor stated,

. . . State versus Gaal, has been bouncing around this courthouse for some time.

It's an older case. In this particular court it's gone through multiple settings. . . .

Part of his conditions of bond, first one, included that he have a vehicle that was

outfitted with an ignition interlock device. There were some results from that

instrument that indicated that he had been drinking. The State and myself,

specifically, filed a Motion to Hold Bond Insufficient. Rather than go through

[with] that hearing, [trial counsel] and I agreed to go ahead and put the SCRAM

device on the defendant. Again, we had some issues with the SCRAM device,

whether or not it was on properly, whether or not he was making attempts in

accordance with the Court's order to be outfitted with this device properly.

Based on those violations, I filed a second Motion to Hold Bond

Insufficient and also to revoke his bond if [the trial judge] deemed it necessary.

That was the initial motion we were going to hear on the [30 th ] of June . . . I was

just coming off vacation myself. While I was on vacation a week prior to that,

[trial counsel] got ahold of me and said, Look, I can probably get him to

understand the reasons behind taking two years. If we'd agree to go ahead and do

that, we wouldn't have to worry about this bond hearing. I told [trial counsel],

That's fine with the State. The offer was three, and I'm not going to quibble over

a year. If he wants to take two, we can do that. So when I rolled back into town

in the end of June, that's what I was expecting to do on June 30 th , was plea him

out. That's what the Court was expecting.

5. Appellant's initial bond conditions required him to install an interlock device in his car

and to consume no alcoholic beverages. The interlock report appended to the State's first motion

to find bail insufficient showed "4 alcohol fails." Appellant's conditions were then modified to

prohibit him from driving altogether and to require him to wear a "SCRAM" device. The

SCRAM report attached to the State's second motion to find bail insufficient showed "1 alcohol

consumption event" and "1 tamper event."

6. 755 S.W.2d 522, 523-24 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). In Norton ,

the trial judge, answering a question about whether he would accept a plea bargain for deferred

adjudication, stated, "No, and if the jury gives her probation, I'll give her jail time." Id. at 523 .

7. 803 S.W.2d 470, 471-73 (Tex. App.--Dallas 1991, pet. ref'd). The trial judge in

Jefferson told the defendant at a deferred adjudication hearing that if he violated his probation in

any way he would give him a "20-year sentence, and he advised the probation man to make a

record of it." Id. at 471 .

8. Gaal , 2010 WL 323574 at *3.

9. Id .

10. Tex. Const. art. 5, § 11. Three situations have been held to rise to this level under the

federal Due Process Clause: 1) when the judge has a financial interest in the case; 2) when the

judge had acted as a one-man grand jury to bring charges in the case he is trying; and 3) "when a

person with a personal stake in a particular case had a significant and disproportionate influence

in placing the judge on the case by raising funds or directing the judge's election campaign when

the case was pending or imminent." Caperton v. A.T. Massey Coal Co., Inc. , 129 S.Ct. 2252,

2259-64 (2009).

11. A party to a civil case has the right to object to a visiting judge sitting on a case by

assignment. Tex. Gov't Code § 74.053.

12. Arnold v. State , 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding that Tex. R.

Civ. P. 18a "applies to criminal cases absent 'any explicit or implicit legislative intent indicating

otherwise.'").

13. 47 Tex. Jur. 3d Judges § 70 (2007) (citing Gulf Maritime Warehouse Co. v. Towers ,

858 S.W.2d 556, 559-60 (Tex. App.-Beaumont 1993, writ denied) & Mosley v. State , 141

S.W.3d 816, 833 (Tex. App.--Texarkana 2004, pet. ref'd)). Tex. R. Civ. P. 18b(1) deals with

disqualification and provides that "Judges shall disqualify themselves in all proceedings in

which: (a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they

previously practiced law served during such association as a lawyer concerning the matter; or (b)

they know that, individually or as a fiduciary, they have an interest in the subject matter in

controversy; or (c) either of the parties may be related to them by affinity or consanguinity within

the third degree." These are "irrebuttable" bases for disqualification. 48B Robert P. Schuwerk &

Lillian B. Hardwick, Texas Practice Series: Handbook of Texas Lawyer and Judicial

Ethics § 40:21 at 742 (2010) ("once the objective fact . . . underlying each [disqualification]

basis is demonstrated, the judge is disqualified.").

14. 47 Tex. Jur. 3d Judges § 69 (2007).

15. Tex. R. Civ. P. 18b(2)(a) & (b).

16. Schuwerk & Hardwick, supra , note 13 § 40:23 at 750; see also Ludlow v. DeBerry , 959

S.W.2d 265, 282 (Tex. App.--Houston [14 Dist.]1997, no writ) ("Rule 18b(2)(a) provides a

broad ground, regarding reasonable questions as to the judge's impartiality. This broad ground

may encompass actions other than those specifically enumerated in sections (b)-(g).").

17. Liteky v. United States , 510 U.S. 540, 558 (1994) (Kennedy, J., concurring).

18. Schuwerk & Hardwick, supra , note 13 § 40:35 at 817.

19. Abdygapparova v. State , 243 S.W.3d 191, 208-10 (Tex.App.--San Antonio 2007, pet.

ref'd) (ex-parte communications "extended beyond the realm of courtroom administration and

etiquette, for which the trial judge has control, and became strong evidence of bias and

partiality"; communications suggested, "at a minimum, a 'chumminess' between the prosecutor

and the trial court from which the jury could interpret that the trial court was 'taking sides.'").

But see Wesbrook v. State , 29 S.W.3d 103, 120-21 (Tex. Crim. App. 2000) (trial judge's pretrial

ex-parte meetings with prosecutors concerning the ongoing solicitation investigations involving

appellant did not require disqualification as a matter of due process).

20. Gentry v. State , No. 06-05-00237-CR, 2006 WL 932057 (Tex. App.--Texarkana April

12, 2006, no pet.) (not designated for publication) (counsel suggested judge should recuse

himself; judge was altogether disqualified). The trial judge stated,

You can stop. Because I'm going to be honest with you, I remember this day. I

live on that road. This Motion is going to be denied because I'm one of them that

almost hit them. I'm going to deny this Motion to Suppress. I'm not so sure that I

wasn't one of them who called Officer Dreesen to be honest with you. I remember

this day and I remember the situation. I'm going to deny the Defendant's Motion

today; it's not going to be granted.

. . . .

Like I say, I've got firsthand knowledge of the situation . . . and I believe he has

the right to do this [search the defendant].

Id. at *1.

21. Liteky v. United States , 510 U.S. 540, 555 (1994) (internal cite omitted).

22. Id. The four-justice concurrence in Liteky rejected the "impossibility of a fair

judgment" test as bearing "little resemblance" to the objective standard-whether the judge's

"impartiality might reasonably be questioned"-set out in the federal recusal statute. Id. at 563-64

(Kennedy, J., concurring). "There are bound to be circumstances where a judge's demeanor or

attitude would raise reasonable questions concerning impartiality but would not devolve to the

point where one would think fair judgment impossible." Id. at 564 (Kennedy, J., concurring).

23. Id. at 555-56 .

24. Id. at 556 . For example, calling the defendant a "thoroughly corrupt police officer" did

not meet the recusal threshold when the trial judge had ample evidence of the defendant's

conduct on which to base his comment. United States v Pulido , 566 F.3d 52, 62-63 (1st Cir.

2009) ("This is not a close case. . . . Here, the district court had the benefit of the West trial,

which discussed Pulido's criminal activities extensively, the guilty pleas of Pulido's

co-defendants, Pizarro and Carrasquillo, the three days of Pulido's interrupted trial, and Pulido's

own change of plea colloquy, to support its statement that he was a 'thoroughly corrupt police

officer.'"), cert. denied , 131 S.Ct. 632 (2010). See Rocha v. State Bar of Texas , No.

04-95-00158-CV, 1996 WL 364823 *2 (Tex. App.--San Antonio July 03, 1996, writ denied)

(not designated for publication) ("Although we do not condone a trial judge's reference to a

litigant as a troublemaker, we conclude [the recusal judge] exercised proper discretion in denying

the motion to recuse.").

Similarly, telling "dismissed jurors they had delivered 'the worst verdict that he had heard

in eight and a half years,'" did not meet the recusal standard, at least not where the statement

emanates from the judge's opinion based on his perception of the evidence presented. See

Ludlow v. DeBerry , 959 S.W.2d 265, 269-71 (Tex. App.--Houston [14th Dist.] 1997, no writ)

(not an abuse of discretion for recusal judge to deny Ludlow's motion to recuse; "Although we

do not condone [the trial judge's] outbursts, all of the actions complained about by Ludlow arose

during the pendency of the trial court proceedings. None of the actions by [the trial judge]

indicate such a 'high degree of favoritism or antagonism as to make fair judgment impossible.'")

(quoting Liteky , 510 U.S. at 555 ).

25. Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000). See Tex. Code Jud.

Conduct, Canon 3, reprinted in Tex. Gov't Code, tit., 2, subtit. G, app. B ("(4) A judge shall

be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom

the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff,

court officials and others subject to the judge's direction and control.").

26. In Kniatt v. State , 239 S.W.3d 910, 911 (Tex. App.--Waco 2007, order) (per curiam),

disp. on merits , 255 S.W.3d 311 (Tex. App.--Waco 2008, no pet.) (per curiam), the trial judge

had stated,

State versus Nathan Kniatt set for trial Monday morning. As I understand from the

attorneys they thought they had a plea agreement. In fact they had a plea

agreement, and today the defendant has reneged on that, doesn't want the

agreement. I've also been informed he wants to fire the lawyer. All that's okay

with me. I'll take all this up. Defendant's bond is revoked. He's going to jail

pending trial. Have a seat over there, sir. We'll set your trial when we get around

to it.

A recusal judge ultimately agreed with Kniatt that, a reasonable person might question the trial

judge's impartiality.

A reasonable member of the public at large, witnessing [the trial judge's] words

and acts on December 7, 2001, and knowing all the facts in the public domain

concerning the judge and the case, would have reasonably believed he revoked

Mr. Kniatt's bond and incarcerated him either to punish him for not pleading

guilty or to intimidate and coerce him into an involuntary plea of guilty, and

would have caused such person to reasonably question, and to have a reasonable

doubt about, [the trial judge's] impartiality and objectivity towards Mr. Kniatt in a

subsequent hearing . . . .

Schuwerk & Hardwick, supra note 13, § 40:26 at 770 (quoting Findings of Fact and Conclusions

of Law, State v. Kniatt , No. 25704-CR (40th Dist. Ct., Ellis County, Tex. Jan. 20, 2008)); Kniatt

v. State , 255 S.W.3d 311, 312 (Tex. App.--Waco 2008, pet. ref'd) (vacating order denying writ

of habeas corpus on the voluntariness of the plea and remanding the cause to another trial judge

for a new hearing on appellant's motion to recuse).

27. See Ex parte Brown , 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (a trial court's

arbitrary refusal to consider the entire range of punishment in a particular case violates due

process).

28. In re United States , 614 F.3d 661, 665-66 (7th Cir. 2010) ("When the government filed

its initial interlocutory appeal, the district judge without adequate grounds accused the

government of appealing for the sole purpose of delaying the trial, and implied, again without

basis in the record, that the government had acted in bad faith by not complying with the judge's

discovery order. After the trial began, he told the jury that the government was responsible for

the numerous delays in the case and he threatened to tell the jury that it 'should consider the case

based upon everything that has happened in the courtroom, presented in the courtroom, including

the delays that have taken place.' No reasonable person would fail to perceive a significant risk

that the judge's rulings in the case might be influenced by his unreasonable fury toward the

prosecutors."), petition for cert. filed , 54 U.S.L.W. 3146 (Oct. 28, 2010) (No. 10-590).

29. United States v. Holland , 655 F.2d 44, 45 (5th Cir. 1981) (trial "judge commented on

his belief that Holland had 'broken faith' with the court at his first trial by consenting to the

judge visiting the jury room but then raising the issue on appeal. . . . The judge then stated for

the record that he intended to increase Holland's sentence because of the incident which he had

described.").

30. Wesbrook v. State , 29 S.W.3d 103, 120-21 (Tex. Crim. App. 2000); Kemp v. State , 846

S.W.2d 289, 306 (Tex. Crim. App. 1992); Tex. R. Civ. P. 18a(f) ("If the motion is denied, it may

be reviewed for abuse of discretion on appeal from the final judgment. If the motion is granted,

the order shall not be reviewable, and the presiding judge shall assign another judge to sit in the

case.").

31. Wesbrook, 29 S.W.3d at 120-21 ; Kemp , 846 S.W.2d at 306 .

32. Kemp , 846 S.W.2d at 306 ("[A]n appellate court should not reverse a trial judge whose

ruling on the [recusal] motion was within the zone of reasonable disagreement. . . . In

undertaking an abuse of discretion analysis, we consider the totality of the evidence elicited at the

disqualification hearing.").

33. Tex. R. Civ. P. 18a(f).

34. 13D Wright, Miller, Cooper & Freer, Federal Practice and Procedure § 3552 at

146 (3d ed. 2008).

35. Appellant's Brief on the Merits at 8 (quoting Minutes, Advisory Committee for the

Supreme Court of Texas , 204 ("November 16-17, 1979")).

36. Tex. R. App. P. 66.1 ("The Court of Criminal Appeals may review a court of appeals'

decision in a criminal case on its own initiative under Rule 67 or on the petition of a party under

Rule 68.").

37. Id.

38. 755 S.W.2d 522 (Tex. App.--Houston [1st Dist] 1988, pet. ref'd).

39. 803 S.W.2d 470 (Tex. App.--Dallas 1991, pet. ref'd).

40. Gaal , 2010 WL 323574 at *3.

41. State's Brief on the Merits at 7.

42. Morano v. State , 572 S.W.2d 550, 551 (Tex. Crim. App. 1978).

43. United States v. Gordon , 61 F.3d 263, 267 (4th Cir. 1995) (citing Santobello v. New

York , 404 U.S. 257, 262 (1971)).

44. Gaal , 2010 WL 323574 at *4 (footnote omitted).

45. See Gordon , 61 F.3d at 267 .

46. Liteky v. United States , 510 U.S. 540, 555 (1994).

47. See U.S. v. Couch , 896 F.2d 78, 81 (5th Cir. 1990) ("As this and several other circuits

have recognized, section 455 [requiring disqualification where "impartiality might reasonably be

questioned"] establishes a statutory disqualification standard more demanding than that required

by the Due Process Clause.").

48. Liteky, 510 U.S. at 551 ("It is wrong in theory . . . to suggest, as many opinions have,

that 'extrajudicial source' is the only basis for establishing disqualifying bias or prejudice. It is

the only common basis, but not the exclusive one, since it is not the exclusive reason a

predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can

also deserve to be characterized as 'bias' or 'prejudice' because, even though it springs from the

facts adduced or the events occurring at trial, it is so extreme as to display clear inability to

render fair judgment."). Although our 1992 decision in Kemp quoted an earlier Supreme Court

decision that had stated that only "extrajudicial sources" of bias or prejudice may serve as a basis

for disqualification or recusal, it was superceded by the 1994 Liteky decision.

49. Id. at 555 .

50. Gaal, 2010 WL 323574 at *4 ("Having sustained his fourth point, we will not address

his first three points.").