                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00390-CR
                                 No. 10-15-00391-CR

DAVID MINNIEAR,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                         From the County Court at Law
                            Navarro County, Texas
                  Trial Court Nos. C35884-CR and C35886-CR


                          MEMORANDUM OPINION


       In Cause No. 10-15-00390-CR, David Minniear pleaded guilty to the offense of

aggravated assault of a family member. The jury convicted Minniear of the offense and

assessed punishment at confinement for life. In Cause No. 10-15-00391-CR, Minniear

pleaded guilty to the offense of burglary of a habitation with the intent to commit another

felony. The jury convicted Minniear of the offense and assessed punishment at 60 years

confinement. We affirm.
                                               Background Facts

           David Minniear and Brenda Sotelo were involved in a relationship for many years.

They separated sometime in September of 2014, and Brenda went to live with her brother

and sister-in-law. On the morning of October 14, 2014, Minniear attacked Brenda at her

brother’s home. Brenda suffered multiple stab wounds to her chest and face, and she also

was stabbed in her eyeball and through her skull. Brenda testified at trial that she is still

in pain from the attack and also has loss of vision, memory loss, and speech issues.

                                             Disclosure of Evidence

           In the first issue, Minniear argues that the trial court erred in applying a Brady v.

Maryland1 exculpation requirement to the Michael Morton Act and in refusing to turn

over part of the State’s file to defense counsel. During a pre-trial conference the State

requested that the trial court review documents in-camera to determine if the State had

an obligation to disclose the documents. The following day, the trial court ruled that the

documents were not discoverable and that there was not a Brady issue concerning the

documents.          The trial court reserved the right to change the ruling upon a later

determination that the material was discoverable. The certification of defendant’s right

to appeal signed by the trial court, Minniear, and Minniear’s counsel indicates that

Minniear has a right to appeal only from sentencing. Therefore, the issue of disclosure of

evidence is not properly before us on appeal. We overrule the first issue.


1   Brady v. Maryland, 373 U.S. 83 (1963).
Minniear v. The State of Texas                                                            Page 2
                                    Unanimous Verdict

        In the second issue, Minniear argues that the jury charge allowed the jury to assess

punishment by less than unanimous means.             The charge instructed the jury on

punishment as follows:

        Burden of Proof for Wrongful Acts

               During the trial, you heard evidence that the defendant may have
        committed wrongful acts that did not result in any criminal charges or that
        did not result in criminal convictions. You are not to consider any evidence
        of any particular wrongful act unless you find, beyond a reasonable doubt,
        that the defendant did, in fact, commit that wrongful act. Those of you who
        believe the defendant did the wrongful act may consider it.

Minniear contends that the charge should have stated, “you are not to consider any

evidence of any particular wrongful act unless all of you find, beyond a reasonable doubt,

that the defendant did, in fact, commit that wrongful act.” Minniear did not object to the

charge.

        We review claims of charge error under a two-pronged test. Almanza v. State, 686

S.W.2d 157, 171 (Tex.Crim.App.1984). We first determine whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If error exists, we then evaluate the harm

caused by that error. Id. The degree of harm required for reversal depends on whether

error was preserved in the trial court. If error was not preserved, it must be "fundamental"

error and requires reversal only if it was so egregious and created such harm that the

defendant "has not had a fair and impartial trial." Almanza v. State, 686 S.W.2d at 171.



Minniear v. The State of Texas                                                         Page 3
        Article 37.07, § 3(c) requires the jury to "agree," i.e., agree unanimously, on "the

guilt or innocence of the defendant and the amount of punishment, where the jury finds

the defendant guilty." TEX. CODE CRIM. PROC. ANN. Art. 37.07 § 3 (c) (West Supp. 2016);

Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000).      If the jury does not agree

unanimously, then the trial court must declare a mistrial. Sanchez v. State, 23 S.W.3d at

34. In Sanchez, the Court of Criminal Appeals interpreted a prior version of Article 37.07

§ 3 (c) as requiring the jury to agree unanimously on the issue of sudden passion. See

Sanchez v. State, 23 S.W.3d at 34. If the defendant proves this issue of sudden passion in

the affirmative by a preponderance of the evidence, the offense is reduced from a first-

degree felony to a second-degree felony. TEX. PENAL CODE ANN. § 19.02(d) (West 2011).

The Court found that the jurors must be unanimous in determining either that the

defendant did act under the immediate influence of sudden passion or that the defendant

did not act under the influence of sudden passion. Id.

        In the present case, the charge instructed the jury not to consider any evidence of

any particular wrongful act unless finding beyond a reasonable doubt, that the defendant

did, in fact, commit that wrongful act. The jury was not required to make an affirmative

finding to determine the range of punishment as in Sanchez. The charge further instructed

the jury that to reach a verdict, all twelve must agree and that the verdict must be

unanimous. We find that the trial court did not err in its charge to the jury.




Minniear v. The State of Texas                                                        Page 4
        Moreover, the evidence does not show harm so egregious that Minnear "has not

had a fair and impartial trial." Almanza v. State, 686 S.W.2d at 171. After the jury returned

its verdict in the aggravated assault of a family member cause, the trial court inquired

whether the verdict was unanimous. The presiding juror indicated that the verdict was

unanimous. The trial court then polled the jury with each juror indicating that it was his

or her verdict. In the burglary of a habitation cause, the trial court inquired whether the

verdict was unanimous. The presiding juror indicated that the verdict was unanimous.

The parties did not wish to have the jury polled for that cause.

        We overrule the second issue.

                                     Judicial Recusal

        In the third issue, Minniear argues that the trial judge should have recused herself

because she previously represented him in a prior case. During a pre-trial hearing, the

State informed the trial court that she previously represented Minniear on a family

violence case in 2009. Minniear’s defense counsel stated, “There’s no objection, the

defense doesn’t have an issue with it.” The trial court then stated, “I can honestly tell

both of y’all that I don’t remember. Okay. As long as there’s no objection from either

side. Okay.”

        In Hathorne v. State, the Court of Criminal Appeals held that the mere fact that the

trial judge personally prosecuted the appellant in past cases does not disqualify him from

presiding over a trial where a new offense is charged. Hathorne v. State, 459 S.W.2d 826,


Minniear v. The State of Texas                                                         Page 5
829 (Tex. Crim. App. 1970). Minniear argues on appeal that Williams v. Pennsylvania,

recently decided by the United States Supreme Court, effectively overrules Hathorne v.

State and its progeny.

        In Williams v. Pennsylvania, the Supreme Court of Pennsylvania vacated the

decision of a postconviction court, which had granted relief to a prisoner convicted of

first-degree murder and sentenced to death. Williams v. Pennsylvania, __ U.S. __ , 136 S.Ct.

1899, 1903,195 L.Ed.132, 138 (2016). One of the justices on the State Supreme Court had

been the district attorney who gave his official approval to seek the death penalty in the

prisoner’s case. Id. The justice in question denied the prisoner’s motion for recusal and

participated in the decision to deny relief. Id. The Court held that under the Due Process

Clause there is an impermissible risk of actual bias when a judge earlier had significant,

personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

Williams v. Pennsylvania, __ U.S. __ , 136 S.Ct. 1899, 1905,195 L.Ed.132, 141 (2016).

        The case before us is distinguishable from Williams v. Pennsylvania. Williams v.

Pennsylvania involved a prosecutor who gave approval for seeking the death penalty in a

case and then acting as a judge on that same case voted to deny relief and reinstate the

death penalty sentence. The judge also denied a motion to recuse him from the case. In

the present case, Minniear did not seek recusal of the trial court, and in fact, stated that

he had no objection and no problem with the trial court remaining on the case. Further,

the trial judge did not have personal involvement in a critical decision in prosecuting


Minniear v. The State of Texas                                                          Page 6
Minniear’s case that was before the court at that time. Rather, the trial court was defense

counsel in a previous case six years prior to the present case. We decline to hold that

Williams v. Pennsylvania overrules Hathorne v. State. We find that the holding in Williams

v. Pennsylvania does not require recusal of the trial court under the facts of the case before

us. We overrule Minniear’s third issue.

                                        Conclusion

        We affirm the trial court’s judgments.




                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 16, 2016
Do not publish
[CRPM]




Minniear v. The State of Texas                                                          Page 7
