Guanche, Erik Santana

PD-0190-15

PD-0190-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/30/2015 11:24:43 PM

Accepted 3/31/2015 5:02:41 PM

ABEL ACOSTA

CLERK

NO. _____________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

ERIK SANTANA GUANCHE § DEFENDANT-APPELLANT

§

V. §

§

THE STATE OF TEXAS § PLAINTIFF-APPELLEE

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

NO. 01-13-00851-CR

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT

CAUSE NO. 1869024

IN HARRIS COUNTY CRIMINAL COURT AT LAW NO. 7

J. Ricardo Soliz and Associates, P.L.L.C.

Rick Soliz

Attorney at Law

Texas Bar Number 00785013

P.O. Box 4051

March 31, 2015 Houston, Texas 77210

713-228-1900

jrsoliz@att.net

PRO BONO ATTORNEY FOR

APPELLANT

TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel ………….. 3

Index of Authorities …………………. 3

Statutes and Rules …………………. 3

Statement Concerning Oral Argument …………………. 3

Statement of the Case ……………………………….. 4

Procedural History ……………………………….. 5

Grounds for Review ……………………………….. 6

Argument ……………………………….. 6

Statement of Fact ……………………………….. 6

Ground No. One ……………………………….. 9

Ground No. Two ……………………………….. 10

Conclusion and Prayer ……………………………….. 14

Certificate of Compliance ……………………………….. 14

Certificate of Service ……………………………….. 15

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IDENTITY OF JUDGE, PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 68.4(a), a complete list is provided below.

Trial Court Judge: Honorable Pam Derbyshire

Appellant: Erik Santana Guanche

Counsel for Appellant: Trial and Appeal: Rick Soliz,

P.O. Box 4051, Houston, Texas 77210-4051

Appellee: State of Texas

Counsel for Appellee:

Jessica Akins, Assistant District Attorney on appeal

Brad Means, Assistant District Attorney at trial

1201 Franklin, Suite 600, Houston, Texas 77002

INDEX OF AUTHORITIES

STATUTES AND RULES

Government Code Sec. 57.022 10, 12

Government Code Sec. 57.049 10, 13

Texas Penal Code Sec. 7.02. 12

Texas Rules of Civil Procedure 18b (b)(1) 12

CASES

Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—

San Antonio 2007, pet. ref’d) 10

Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992) 10

Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011) 10

STATEMENT CONCERNING ORAL ARGUMENT

The appellant requests oral argument because of the importance of the issue

presented concerning whether a sitting judge may disregard and violate Texas law

with impunity in the interest of efficiency and to the detriment of the indigent or

racial and ethnic minority defendants.

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Appellant herein, by and through his attorney, Rick Soliz, and pursuant to

TEX. R. APP. P. 68 files this petition for discretionary review and in support thereof,

would show the Court as follows:

Erik Santana Guanche, Appellant in the above entitled and numbered cause,

respectfully requests that this court reverse the ruling, dated December 16, 2014, of

the First Court of Appeals, thereby reversing the judgment in the trial court, and

removing the Honorable Pam Derbyshire, Judge of Harris County Criminal Court

Number Seven from all proceedings associated with this case including any

hearings, trial, supervisory functions during any possible community supervision,

and from retaining jurisdiction within 30 days after any plea bargain or

incarceration that concludes this case.

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I. STATEMENT OF THE CASE

Erik Santana Guanche, Appellant in the above entitled and numbered cause,

filed a Motion to Recuse the Honorable Pam Derbyshire, Harris County Criminal

Court Number Seven. Such motion was “Denied without hearing” by the

Honorable Olen Underwood, Presiding Judge of the Second Administrative

Judicial Region of Texas. A one page form ORDER was signed and submitted to

the County Clerk of the Court and is contained in the Clerk’s short record in this

plea bargained case. Unsubstantiated statements in the Order are contradicted by

facts and statements in the body in the sworn Motion to Recuse. A subsequent and

timely filed Motion to Recuse the Administrative Judge from hearing a Motion for

Reconsideration was ignored by the Administrative Judge. It is also in the clerk’s

record.

II. PROCEDURAL HISTORY

Appellant, represented by his pro bono attorney of record on appeal, pled guilty to

the offense of driving while intoxicated on July 2, 2013. The trial court assessed

punishment at 15 days confinement in the county jail. A motion for new trial and

notice of appeal were timely filed. The court of appeals affirmed Appellant’s

conviction in an unpublished opinion issued on December 16, 2014. A copy is

attached hereto. A motion for rehearing and motion for reconsideration en banc

were filed and denied on January 15, 2015 and March 17, 2015 respectively.

This Court granted Appellant an extension of time until March 19, 2015, to

file this petition and until March 30, 2015 to perfect such filing.

III. GROUNDS FOR REVIEW

1. Whether the appellate court erred by refusing to recognize the trial court

erred in refusing to recuse itself after multiple open court efforts by the court to

have defense counsel violate Texas criminal law by interpreting without the

required license, for a previous defendant before the court on issues of bail, and

whether the Presiding Judge of the Administrative Region erred in denying the

same Motion to Recuse and a subsequently filed Motion to Recuse the

Administrative Judge.

2. Whether the appellate court erred in recognizing that appellant’s due

process rights were violated by appearing before a trial court that is openly

hostile to his race, and that has personally violated Texas criminal law hundreds

of times a year, for well over a decade, by promoting unlicensed language

interpretation in formal court proceedings.

IV. ARGUMENT

A. STATEMENT OF FACTS

Harris County Criminal Court Number Seven utilizes illegal procedures

regarding the interpretation of the Spanish foreign language for defendants brought

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before the court. This has the effect of disproportionally affecting mostly indigent

and minority defendants. It is a Class A misdemeanor criminal offense to interpret

before the court without the appropriate license. For well over 10 years, in

contravention of multiple laws and under the risk of creating perpetual criminal

prosecutions, Harris County judges including Court Seven, have supervised and

promoted illegal interpreting by both appointed and retained counsel, sheriff

deputies of earlier administrations, assistant district attorneys, court staff, and

anyone bilingual who happens to be around. Even bilingual judges themselves

have interpreted during formal proceedings without a license. Many law violating

actors, have since risen to other appointed and elected positions and continue to

perpetuate these crimes. No one has been prosecuted or arrested. The courts have

paid appointed attorneys extra public money to violate the law by interpreting

without the approved licenses as well, and by supplementing and enhancing

attorney income on pay vouchers for such illegal interpreting. Those appointed

attorneys who refuse to interpret without a license run the very real risk of not

being called upon again to earn pay in those courts while serving the indigent

through additional appointments.

These facts and similar events affecting the indigent and racial minorities

repeatedly occur in this Court and all 15 Harris County misdemeanor courts in spite

of Tex. Code Crim. Pro. Art. 38.30 requirements to provide an interpreter at County

expense, Attorney General Opinions, the Texas Government Code, Fair Defense Act

requirements (this judge is bound by Harris County’s selected alternative plan that

clearly states licensed interpreters are available 24 hours – this statement is false, but

if it is not, such interpreters are rarely utilized even upon request), antitrust law, due

process violations, State Bar and Judicial Conduct Committee ethical rules regarding

effective assistance of counsel and violations regarding conflicts and violations of

law, equal protection laws, the Americans with Disabilities Act, Civil Rights law

under Title VI of the Civil Rights Act of 1964, conspiracy laws, potential appellate

reversals, whistleblower laws and requirements under Harris County’s own recent

settlement agreement, after litigation, with the Texas Civil Rights Project.

Such settlement agreement requires this judge to provide interpreters upon

request. Yet there has never been a uniform, formal system in place to utilize

licensed and legal interpreters whether they are requested or not. In the rare

circumstance an interpreter is requested and actually scheduled, it is only after

requesting counsel is chastised, rebuked, threatened or otherwise ridiculed. By

contrast, the 22 Harris County criminal District Courts in the same building currently

have licensed interpreters available immediately and at all times for all Courts. Such

plan was implemented after years of violating Texas law in most of those courts as

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well, not out of a sense of justice, but because of appellate reversal(s).

Additionally, unlicensed interpreters are not sworn prior to interpreting as

required. There are various reasons licensed interpreters are required, but

immigrants in particular require them to ensure an understanding of, for example,

the potential consequences of a guilty plea. It is too easy for an unlicensed, biased

(for example, biased because of the want of additional court pay and future court

appointments) interpreter to skim over or leave out altogether immigration

consequences and warnings, even before the bench. In many instances, the court is

clueless as to what occurred before the bench.

Finally, it goes without saying that these facts expose a highly hypocritical,

paradoxical daily occurrence - criminal law violations, sponsored by the trial judge in

open court in front of a police officer (bailiff) and representatives of the district

attorney’s office on every occurrence. And another oddity: the District Clerk’s

office resisted efforts to make sure the documents in this trial case were available on

the internet to the public just like any other case.

B. GROUND FOR REVIEW NUMBER ONE

An order denying a motion to recuse is reviewed under an abuse-of-

discretion standard. TEX. R. CIV. P. 18a(j)(1)(A); see Abdygapparova v. State,

243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The court abuses

its discretion if its ruling is outside the “zone of reasonable disagreement” or if it

fails to apply proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289,

306 (Tex. Crim. App. 1992); Abdygapparova, 243 S.W.3d at 197–98.

Texas Rule of Civil Procedure 18(b) provides that a judge must recuse if,

among other things (1) the judge’s impartiality might reasonably be questioned or

(2) the judge has a personal bias or prejudice concerning the subject matter or a

party. TEX. R. CIV. P. 18b(b)(1)–(2). Under Rule 18(b)(1), a judge’s impartiality

might reasonably be questioned if she “harbors an aversion, hostility or disposition

of a kind that a fair-minded person could not set aside when judging the dispute.”

Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011); see TEX. R. CIV. P.

18b(b)(1).

This Texas Rule of Civil Procedure, which apply to Texas criminal case

recusals, state the situations in which a trial judge should be recused from

presiding over a particular case. In this case, the trial judge should be recused from

presiding because: in light of the illegalities, the trial judge’s impartiality may

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reasonably be questioned, the trial judge has a personal bias and prejudice

concerning all subject matter, when a Spanish speaker is involved, and the judge

has no regard for Texas law, thus leading to a strong appearance of impropriety.

C. GROUND FOR REVIEW NUMBER TWO

It is a due process violation of the Constitutions of this country and

state to fail to provide a licensed interpreter. Such is because failing to do so violates

Texas civil and criminal laws as well as federal laws. This judge has placed

efficiency (more and faster guilty pleas), and cost (of a licensed interpreter) over

sound law. How can a judge who does not know right from wrong, legal from illegal

interpreting, or is indifferent to such, sit in judgment in a fair and impartial manner

for any indigent or Spanish dominant, minority member of society. Many in both

categories require interpreters, and the defendant here, a minority, has been exposed

to this systematic illegal activity all around him and at every court setting and is at

risk of related system deficiencies which by their nature discriminate against him, as

a Hispanic. Who is it that requires interpreters the great majority of the time? It is

Hispanics. As an aside, but a point that should be considered: not one of the 15

criminal county judges is Hispanic surnamed, none look or sound Hispanic and none

are Hispanic males. When one compares that to the percentage of Hispanics and

Hispanic males and the racial makeup of Harris County, it is an abysmal

statistic…..one that “piles on” this defendant additional unfairness on top of the fact

that the judges cannot seem to abide by existing law regarding Hispanic defendants

and interpreters. In other words, it’s hard enough to get a fair shake when none of the

appellant’s minority peers are sitting in judgment, but then much harder when

appellant cannot count on the system’s units abiding by the mandatory laws that

should guide them. Such law violations cause problems on so many levels. For

example, how can certain justices or this district attorney’s office be involved in

appeals such as this and rule or argue impartially when they are or were once part of

this very problem that has gone on for more than a decade and a half? They were and

are, at minimum, witnesses to this daily crime and at most, participants in the crimes.

The Texas Law of Parties clearly implicates this judge in every single illegal

interpretation as if she had acted alone. Sec. 7.02. of the Penal Code states the

following: CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.

(a) A person is criminally responsible for an offense committed by the conduct of

another if:

(1) acting with the kind of culpability required for the offense, he

causes or aids an innocent or nonresponsible person to engage in conduct

prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense; or

(3) having a legal duty to prevent commission of the offense and

acting with intent to promote or assist its commission, he fails to make a

reasonable effort to prevent commission of the offense.

Moreover, attached is a letter dated August 16, 2010 from the Civil Rights

Division of the Department of Justice that explains this issue as well.

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Additionally, in order to avoid criminal law penalties for many years, including

well over a decade while this trial judge sat hearing cases, Texas Attorney General

Opinions JC-0584 and JC-0579, required interpreters to maintain certain licenses.

Texas Government Code (Chapter 57), which happens to be the essence of these

Opinion(s), requires the interpreter maintain the appropriate interpreter license in

order to be qualified to interpret for any Spanish speaker in any case. Finally, a

Defendant in a trial court requires a licensed interpreter so that counsel may render

effective assistance of counsel.

Along those lines and of note is the fact that thousands of guilty pleas from

those accused, for many recent years, were completed illegally in open court in

Harris County, and this court, without licensed interpreters in direct violation of the

Texas Government Code and criminal law. Such violations were Class A

misdemeanors on every occasion subject to jail time for up to one year. Not one

interpreter or judge has been prosecuted for violations of criminal law during these

years. In fact, some judges authorized extra payment to court appointed counsel in

many instances to interpret and violate such criminal law and the Constitutions of this

land. The judge of this court has violated multiple civil and criminal laws for many

years. The motion to recuse should have been granted when counsel filed such on

the basis, among other things, that he was being drawn into the daily criminal

conspiracy, against his will.

The Department of Assistive and Rehabilitative Services certifies Texas

interpreters. Sec. 57.022 of the Government Code states: The department shall

certify an applicant who passes the appropriate examination prescribed by the

department and who possesses the other qualifications required by rules adopted

under this subchapter.

(b) The executive commissioner of the Health and Human Services

Commission by rule shall provide for:

(1) the qualifications of certified court interpreters;

(2) training programs for certified court interpreters each of which is

managed by the department or by a public or private educational institution;

(3) the administration of examinations;

(4) the form for each certificate and procedures for renewal of a

certificate;

(5) the fees for training, examinations, initial certification, and

certification renewal;

(6) continuing education programs under this subchapter;

(7) instructions for the compensation of a certified court interpreter

and the designation of the party or entity responsible for payment of compensation;

and

(8) administrative sanctions enforceable by the department.

Sec. 57.049 of the Government Code states: PROHIBITED ACTS. A

person may not advertise, represent to be, or act as a licensed court interpreter

unless the person holds an appropriate license under this subchapter.

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Sec. 57.050 states (a) A person commits an offense if the person violates

this subchapter or a rule adopted under this subchapter. An offense under this

subsection is a Class A misdemeanor. And again, the Texas Law of Parties

implicates the judge as if illegally interpreting herself.

Therefore, thousands of Class A misdemeanors have been committed in

open court for years in Harris County. Each court generally disposes of several

cases per day that require a licensed interpreter. This takes into consideration plea

bargains only, and not all other formal proceedings before the bench, which also

criminal violations.

Regarding the ruling from the Administrative Judge of the Region, his

ruling as described in Appellant’s “Motion For Reconsideration Of Denial of

Defendant’s Motion to Recuse Trial Judge Pam Derbyshire” that is part of the trial

court’s record, has absolutely has no rhyme or reason and does not apply to the

facts in the original Motion to Recuse at all. It is as if some form was used to try

and apply boiler plate language to this case. While appellant has no yearning to

make efforts to police the judiciary, particularly since his camp is not being paid

like every other person dealing with this document, something must be done since

things have gotten completely out of hand when laws are flouted in open court

daily by public servants on the public payroll.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

grant discretionary review, order full briefs and oral argument and reverse the opinion of

court of appeals.

CERTIFICATE OF COMPLIANCE

I certify that the above document consists of about 3,121 words.

/S/

/S/ Rick Soliz

CERTIFICATE OF SERVICE

I certify that the above document was served on the State of Texas by delivering

copies, to the Harris County District Attorney’s Office, 1201 Franklin, 6th Floor,

Houston, Texas 77002 and the State Prosecuting Attorney, P.O. Box 13046, Austin,

Texas 78711 on this 19th day of March 2015.

Respectfully submitted,

J. Ricardo Soliz and Assoc., P.L.L.C.

/S/________________________

/S/ Rick Soliz,

T.B.N. 00785013

P.O. Box 4051

Houston, Texas 77210

713-228-1900

jrsoliz@att.net

Pro Bono Attorney for Appellant

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Opinion issued December 16, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-13-00851-CR

———————————

ERIK SANTANA GUANCHE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Case No. 1869024

MEMORANDUM OPINION

Pursuant to a plea agreement with the State, appellant Erik Santana Guanche

pleaded guilty to a Class B misdemeanor DWI as a first offender. See TEX. PENAL

CODE ANN. § 49.04 (West Supp. 2014). In accordance with the terms of the plea

bargain, the trial court sentenced Guanche to 15 days in the Harris County Jail with

4 days’ credit and imposed a $500 fine. The trial court certified that this is a plea

bargain case, but that matters were raised by written motion filed and ruled on

before trial from which Guanche had the right to appeal. Guanche appeals the

denial of his motion to recuse the trial court judge, requesting that we reverse the

judgment and the denial of the motion to recuse. We affirm.

Background

Guanche was charged by information with Class B misdemeanor DWI as a

first offender. Guanche was released on bond and, as a condition of his release,

was ordered to install an ignition interlock device on his vehicle. After his bond

supervision officer filed a violation report stating that Guanche had failed to pay

administrative fees and tested positive for drug use, the trial court revoked

Guanche’s bail, raised it to $4,000, and amended the conditions of bail to make

them stricter. Guanche’s bond supervision officer later filed a second violation

report stating that Guanche had (1) failed to pay administrative fees, (2) on April

15, 2013, Guanche’s breath alcohol level was measured at 0.040, and (3) Guanche

had attempted to bribe a urinalysis technician with $100. The trial court revoked

Guanche’s bail for a second time, raised it to $8,000, and amended the terms of

bail to make them even stricter.

Guanche then filed a verified motion to recuse the trial court on the grounds

that her “impartiality might be reasonably questioned, [she] has a personal bias or

2

prejudice concerning the subject matter, defense counsel or a party, or the judge

has no regard for Texas law, and there is a strong appearance of impropriety.” The

ground for the motion was that the trial court had tried to “coerce” Guanche’s

counsel to interpret for his Spanish-speaking client in an unrelated matter.

According to Guanche’s counsel, he represented that client in a bond matter before

the trial court, and when Guanche refused to interpret for his client, the trial court

became upset, mocked counsel, and asked counsel why he had not made the

request for an interpreter earlier. Guanche argued that “hundreds, if not thousands,

of guilty pleas from those accused, for many recent years, were completed illegally

in open court in Harris County, and this court, without licensed interpreters, in

direct violation of the Texas Government Code and criminal law.” Thus, Guanche

argued, “the judge is not fit to hear this case regarding this Spanish surnamed

defendant who has retained this same counsel in the current case.”

The trial court declined to recuse herself and referred the motion to the

Presiding Judge of the Second Administrative Judicial Region, Olen Underwood.

Presiding Judge Underwood denied the motion. Guanche pleaded guilty before a

different trial court judge and was sentenced in accordance with his plea

agreement.

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Discussion

In his sole issue on appeal, Guanche urges us to reverse the judgment on the

grounds that the trial court and Presiding Judge Underwood erred in denying his

motion to recuse.

A. Standard of Review

We review an order denying a motion to recuse under an abuse-of-discretion

standard. TEX. R. CIV. P. 18a(j)(1)(A); see Abdygapparova v. State, 243 S.W.3d

191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The court abuses its

discretion if its ruling is outside the “zone of reasonable disagreement” or if it fails

to apply proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289, 306

(Tex. Crim. App. 1992); Abdygapparova, 243 S.W.3d at 197–98.

B. Applicable Law

Texas Rule of Civil Procedure 18(b) provides that a judge must recuse if,

among other things (1) the judge’s impartiality might reasonably be questioned or

(2) the judge has a personal bias or prejudice concerning the subject matter or a

party. TEX. R. CIV. P. 18b(b)(1)–(2). Under Rule 18(b)(1), a judge’s impartiality

might reasonably be questioned if she “harbors an aversion, hostility or disposition

of a kind that a fair-minded person could not set aside when judging the dispute.”

Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011); see TEX. R. CIV.

P. 18b(b)(1). “Rule 18(b)(2) is more specific: It covers how the judge feels and

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what the judge knows,” such as when a judge has personally observed the conduct

that led to a defendant’s detention. Gaal, 332 S.W.3d at 453; see TEX. R. CIV.

P. 18b(b)(2).

Recusal generally is not required when the judge is accused of a personal

bias based solely on her judicial rulings, remarks or actions. See Gaal, 332 S.W.3d

at 453–54. However, when the judge’s remarks reveal an opinion based on an

extra-judicial source (sometimes referred to as “personal” bias), recusal could be

warranted. See id. at 453–54. In either case, if the comments or actions reveal

“such a high degree of favoritism or antagonism as to make fair judgment

impossible,” then recusal is required. See id. at 454 (quoting Liteky v. United

States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)).

The party seeking recusal must establish that a reasonable person, knowing

all the circumstances involved, would have doubts as to the impartiality of the

judge. See Kemp, 846 S.W.2d at 305; Abdygapparova, 243 S.W.3d at 198. The

evidence must be sufficient to overcome the presumption of judicial impartiality.

See Kemp, 846 S.W.2d at 306; Abdygapparova, 243 S.W.3d at 198–99. Further,

the bias must be “of such nature, and to such extent, as to deny the defendant due

process of law.” Kemp, 846 S.W.2d at 305; see also Abdygapparova, 243 S.W.3d

at 199 (noting that this is a “high standard”). In order to meet the standards for a

recusal motion, the motion, among other things, must include verified allegations

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that “if proven, would be sufficient to justify recusal . . . .” TEX. R. CIV.

P. 18a(a)(4)(C).

C. Analysis

On appeal, Guanche argues that the trial court violated Texas Code of

Criminal Procedure article 38.30, the Texas and U.S. Constitutions, various Texas

and federal statutes and common law doctrines, ethics rules, attorney general

opinions, Harris County’s “settlement agreement . . . with the Texas Civil Rights

Project,” and “potential appellate reversals.” App. Br. 6–7. He does not specify

how any of these were violated, but the gravamen of his complaint is that the trial

court violated Texas law in an unrelated proceeding by trying to coerce Guanche’s

counsel to interpret for his Spanish-speaking client in that case. In his point of

error, he asserts that “[t]he trial court erred in refusing to recuse itself after multiple

open court efforts by the court to have defense counsel violate Texas criminal law

by interpreting for the defendant, before the court, on issues of bail, without the

required license; and the Presiding Judge of the Administrative Region erred in

denying the related Motion to Recuse.” We reject Guanche’s argument that the

trial court erred in refusing to recuse and that Presiding Judge Underwood abused

his discretion in denying Guanche’s motion to recuse.

Guanche’s motion alleged that the trial court was required to recuse herself

in his case because he has a Spanish surname. However, Guanche did not connect

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the allegations in his motion regarding the trial court’s alleged remarks and actions

with respect to an interpreter in the unrelated case to anything in his own case. On

appeal, he argues that failure to provide a licensed interpreter is a due process

violation. But although he alleged in his motion to recuse that recusal was required

because he had a Spanish surname, he did not represent that he was not fluent in

English or ever required, let alone had been denied, the assistance of an interpreter.

In short, even if the trial court had illegally denied a Spanish-speaking defendant

the use of an interpreter in another case, the mere fact that Guanche has a Spanish

surname does not support a claim that the trial court was biased against him or

could not impartially judge his case. Thus, he alleged nothing to show that the trial

court “harbor[ed] an aversion, hostility or disposition of a kind that a fair-minded

person could not set aside when judging [his] dispute.” Gaal, 332 S.W.3d at 453

(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”) (emphasis added). Likewise, his

allegations do not demonstrate bias “of such nature, and to such extent, as to deny

[him] due process of law,” because they do not suggest that the trial court had an

opinion about the merits of Guanche’s case that stemmed from an improper source.

Kemp, 846 S.W.2d at 305–06 (for alleged bias to properly form basis for recusal, it

“must stem from an extrajudicial source and result in an opinion on the merits on

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some basis other than what the judge learned from his participation in the case”).

Thus, his motion did not contain facts that “if proven, would be sufficient to justify

recusal.” TEX. R. CIV. P. 18a(a)(4)(c). Accordingly, we hold that the trial court did

not err in refusing to recuse and that Presiding Judge Underwood did not abuse his

discretion in denying the motion to recuse. See TEX. R. CIV. P. 18a(j)(1)(A);

Kemp, 846 S.W.2d at 306.

We overrule Guanche’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

Justice Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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

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