              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. PD-0713-07

                        CHARLES DAVID WHITEHEAD, Appellant

                                                v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE ELEVENTH COURT OF APPEALS
                           EASTLAND COUNTY

      K ELLER, P.J., filed a dissenting opinion in which K EASLER, and H ERVEY, JJ.,
joined.

       Until the jury sentenced him to fifteen years and a $10,000 fine, appellant seemed perfectly

content for Judge Herod to preside over his trial. Appellant has now decided that he wants another

crack at acquittal or a lesser sentence, and the Court gives him one. The Court has “no doubt” that

the trial judge would have recused himself if appellant had filed a motion asking him to do so.1 Yet

because one was not filed, the Court now overturns the conviction after the parties, the judge, and

the jury have gone through the time and expense of a trial, and after appellant has gotten to weigh

his present sentence against the chance of a better one from a different jury. Although some prior


       1
           See Court’s op. at 7.
                                                                      WHITEHEAD DISSENT – 2

cases do say that the statutory disqualification of the trial judge can be raised for the first time on

appeal,2 those cases are inconsistent with the Court’s current trend regarding fundamental error.3 We

should revisit the issue.

        The rationale of these prior cases is that the trial judge’s disqualification renders any

judgment in the proceeding “void”4 or a “nullity,”5 subject to challenge at any time,6 even on habeas

corpus.7 At least part of the articulated rationale for this conclusion was that the judge’s lack of

qualification affected the jurisdiction of the court.8

        But the validity of these propositions, which underlie the exception to the usual requirement

to object, has eroded with the passage of time. Fifteen years ago, in Marin v. State, our “piecemeal”

fundamental error jurisprudence was replaced by a three-category approach that, in some cases,

changes whether complaints can be brought for the first time on appeal.9 Then in Davis v. State, we


        2
         Johnson v. State, 869 S.W.2d 347, 349-50 (Tex. Crim. App. 1994)(probate judge had no
criminal jurisdiction); January v. State, 36 Tex. Crim. 488, 491-92, 38 S.W. 179, 179-80
(1896)(owner of stolen animal was brother of the judge).
        3
          They also often reflect a failure to distinguish between statutory and constitutional
disqualification.
        4
            Johnson, 869 S.W.2d at 350.
        5
            January, 36 Tex. Crim. at 491, 38 S.W. at 179.
        6
            Johnson, 869 S.W.2d at 350.
        7
           Ex parte Vivier, 699 S.W.2d 862, 863 (Tex. Crim. App. 1985)(judge disqualified by
constitution and statute); Ex parte Miller, 696 S.W.2d 908, 910 (Tex. Crim. App. 1985)(same),
overruled by Ex parte Richardson 201 S.W.3d 712 (Tex. Crim. App. 2006).
        8
         Johnson, 869 S.W.2d at 349-50; Vivier, 699 S.W.2d at 863; January, 36 Tex. Crim. at
491, 38 S.W. at 179.
        9
          Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002)(discussing Marin v.
State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)).
                                                                        WHITEHEAD DISSENT – 3

held that the trial judge’s qualification to preside over a case was really a matter of authority rather

than jurisdiction.10

        Finally, in Ex parte Richardson, we held that a claim of judicial disqualification – even of

constitutional dimension – could not be brought for the first time on habeas corpus.11 We said there

that the defendant could have raised his claim of a constitutional disqualification at trial and, if it was

rejected there, complain on appeal.12

        I would abide by Texas Rule of Appellate Procedure 33.1.13 At least where the alleged

judicial disqualification is based solely on statute – as in this case14 – the complaint should be

brought to the trial court’s attention in a timely fashion before relief can be obtained on appeal. Such

a rule would give the trial judge the opportunity to correct the situation without the wasteful time and

expense of trial and appeal.

Filed: June 25, 2008
Publish




        10
             956 S.W.2d 555, 557-59 (Tex. Crim. App. 1997).
        11
             201 S.W.3d at 713-14.
        12
             Id. at 714.
        13
         T EX . R. APP . P. 33.1 provides in part: “As a prerequisite to presenting a complaint for
appellate review, the record must show that . . . the complaint was made to the trial court by a timely
request, objection, or motion that . . . stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.”
        14
        See TEX . CONST . Art. V, § 11 (no reference to “party injured” language found in TEX .
CODE CRIM . PROC. 30.01).
