Affirmed and Opinion Filed March 10, 2015




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01562-CR

                            PAUL ANGELO ESCOBAR, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 204th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1262912-Q

                                            OPINION
                            Before Justices Lang, Brown, and Whitehill
                                   Opinion by Justice Whitehill
       The issue raised in this aggravated robbery case is whether the trial judge should have

been disqualified because of alleged bias stemming from an extrajudicial source. Assuming

without deciding that a common law disqualification for bias can be raised for the first time on

appeal, we conclude the trial judge’s comments do not reflect an extrajudicial bias that resulted

in the denial of due process. We therefore affirm the trial court’s judgment.

                                     I. FACTUAL BACKGROUND

       Appellant robbed Stacy Foreman at gunpoint. Foreman, an intake worker at a residential

drug rehabilitation facility, was sitting at her desk in her office talking to a client when appellant

entered and handed her a note. The note read, “Don’t scream; give me your jewelry or I’ll

shoot.” When Foreman looked up, appellant was pointing a .22 pistol about eight inches from her
face. Foreman gave appellant her jewelry. Although Foreman chased appellant as he departed,

she did not apprehend him.

            An arrest warrant was issued for appellant in this case while he was in jail for another

offense.1 The police interviewed appellant on video, but he declined to give a statement. After

the video camera was turned off, appellant said, “I should have just killed the bitch instead of

robbing them.”

            Appellant was charged with aggravated robbery with a deadly weapon. Appellant entered

an open plea of guilty to the charge, and a plea of true to the enhancement paragraph alleging a

prior felony conviction for burglary of a habitation.2 Prior to the commencement of testimony in

the plea hearing, the trial judge afforded appellant and his counsel the opportunity to seek her

recusal by informing them that she was acquainted with Foreman through the STAR Court

program.3 The judge stated:

                        I have, in the past, placed STAR Court clients, or people on probation at
                        [Foreman’s] home, so I’ve had dealings with her in that regard. If
                        something comes up, if somebody’s gonna get kicked out or conditions at
                        the home are not like we want them, then we’ve had conversations with
                        her, but it’s not gonna affect how I rule in this case.

            After providing appellant and his counsel the opportunity to confer, the court asked

whether they wished to proceed or ask that she be recused. Defense counsel replied, “I have had

an opportunity to discuss with my client, Your Honor, and we’re gonna proceed as planned.”

            During the hearing, twenty three year old appellant testified that he had been addicted to

drugs, mainly heroin, since his late teens. Previously, he had been on deferred adjudication for

burglary of a habitation, but his probation was revoked and he served eleven months of a two-


     1
         The other offense was possession of heroin over one gram but less than four (the “Heroin Case”).
     2
       At the plea hearing, appellant also pled guilty to the Heroin Case and to another charge; possession of methamphetamine of less than one
gram (the “Meth Case”). Both the Heroin Case and the Meth Case were charged under separate cause numbers, and are not at issue in this appeal.
     3
         “STAR” stands for Strengthening, Transition and Recovery. The STAR Court is a specialty court for felony prostitution.



                                                                       –2–
year sentence in prison. Appellant told the court that he has two young children and his girlfriend

was pregnant with his third child. Appellant lived at home with his mother, his children, and his

girlfriend. He kept his heroin stash in the bathroom.

          Appellant testified that his family begged him to stop using drugs, supported him

financially, and helped him get a job. During the pendency of this case and the Heroin Case, his

family hired a lawyer and posted a $50,000 bond to get him out of jail. But after he was released

on bond, he was “picked up” on the Meth Case, and remained in jail through the time of the plea

hearing.

          Appellant testified that his mother and father were hard-working people, and no one in

his family had a substance abuse problem. Appellant blamed all of his conduct on his addiction.

He requested that the judge place him in a year-long treatment facility rather than send him to

jail, and assured the judge that this time he was ready to address his addiction.

          Appellant’s father testified that he loved appellant and had tried to help him. He and the

rest of the family had tried to convince appellant to stop using drugs. Appellant’s sister testified

that she worried about appellant and had given him money for detox medication and had taken

him to get treatment for his addiction.

          At the conclusion of the hearing, the trial judge sentenced appellant to twenty years’

imprisonment on the aggravated robbery charge at issue here.4 Appellant did not object, and

when the trial judge asked if there was any reason appellant should not be sentenced, his counsel

replied “No.” Although appellant filed a motion for new trial, the motion asserted only that “The

verdict [was] contrary to the law and evidence.” Appellant subsequently perfected this appeal.




   4
       Appellant was also sentenced to two years in the state jail on the Meth Case and ten years’ imprisonment on the Heroin Case.



                                                                     –3–
                                II. ISSUE ON APPEAL AND STANDARD OF REVIEW

           In a single issue, appellant contends the trial judge “should have been disqualified for

bias.” According to appellant, comments made by the trial judge demonstrate bias from an

extrajudicial source, and the bias was of such a character that it deprived him of due process of

law.5 Appellant does not assign error to the sentence he received, nor does he explain how his

due process rights may have been implicated. There is also no argument that the case involves

fundamental error.6 Instead, appellant simply argues that the judge’s remarks made her bias

“obvious.”

           When an appellant claims judicial bias, we review the record to see if it shows the

judge’s bias denied him due process of law. Armstrong v. State, No. 05–10–01245–CR, 2011

WL 6188608, at *5 (Tex. App.—Dallas Dec. 14, 2011, no pet.) (not designated for publication).

The terms “bias” and “prejudice” do not encompass all unfavorable rulings towards an

individual, but instead must “connote a favorable or unfavorable disposition or opinion that is

somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon

knowledge that the subject ought not to possess . . . or because it is excessive in degree.” Liteky

v. United States, 510 U.S. 540, 550 (1994).

                                                                  III. ANALYSIS

A. Grounds for Disqualification.

           Grounds for disqualification of a judge are set forth in the Texas Constitution and the

Texas Code of Criminal Procedure. Specifically, the Constitution provides that a judge is


     5
       In his conclusion, appellant also references due course of law under the Texas Constitution. See TEX. CONST. Art. I §19. But, appellant
does not argue that the Texas Constitution provides any greater protection than the U.S. Constitution, so we address these claims in tandem.
     6
       To the extent appellant is attempting to argue that the denial of due process constitutes fundamental error, he forfeited this argument due
to inadequate briefing. See TEX. R. APP. P. 38.1(i); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (constitutional claims waived by
inadequate briefing).




                                                                      –4–
disqualified if the judge has an interest in the case, is related to a party within the prohibited

degree, or when he was counsel in the case. See TEX. CONST. art. V, §11. The code of criminal

procedure contains similar provisions. See TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 2006).

Bias is thus not a ground for disqualification under the Texas Constitution or the Code of

Criminal Procedure.7

           The Court of Criminal Appeals, however, recognizes judicial bias as an additional

common law ground for disqualification when the bias is of such character that it denies a

defendant due process. McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983),

overruled in part on other grounds by DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App.

2004). Before an alleged common law bias becomes sufficient to warrant the disqualification of

a judge, it “must stem from an extrajudicial source and result in an opinion on the merits on

some basis other than what the judge learned from his participation in the case.” United States v.

Grinnell Corp., 384 U.S. 563, 583 (1966) (quoted in Kemp v. State, 846 S.W.2d 289, 306 (Tex.

Crim. App. 1992)).

           Here, appellant for the first time on appeal raised common law bias as a basis for

disqualification.

B. Can common law bias be raised as a basis for disqualification for the first time on appeal?

           We assume without deciding that appellant’s issue can be addressed for the first time on

appeal. Appellant acknowledges that he did not move to disqualify or recuse the trial judge, but

asserts that disqualification can be raised for the first time on appeal. See Gamez v. State, 737

S.W.2d 315, 318 (Tex. Crim. App. 1987) (considering whether constitutional disqualification


     7
        Although impartiality and bias are proper grounds for recusal under TEX. R. CIV. P.18b (2)(a), (b), recusal and disqualification are distinct
terms. See id. Regardless, the procedures for recusal and disqualification found in the civil rules are applicable to criminal cases. DeBlanc v.
State, 799 S.W.2d 701, 705 (Tex. Crim. App. 1990).




                                                                       –5–
can be waived, and stating, “The disqualification of a judge may not be waived even by consent

of the parties.”); Elam v. State, 841 S.W.2d 937, 940 (Tex. App.—Austin 1992, no writ)

(considering common law judicial bias and citing Gamez as holding disqualification can be

raised at any time); McKenna v. State, 221 S.W.3d 765, 767 (Tex. App.—Waco 2007, no pet.)

(considering constitutional basis for disqualification and noting that “unlike recusal,

disqualification cannot be waived.”).

           The State replies that, while the grounds for recusal or disqualification stated in the Code

of Criminal Procedure or the Texas Constitution cannot be waived, common law bias is subject

to waiver. In support of its argument, the State relies on our unpublished decision in Norman v.

State, No. 05-95-00010-CR, 1996 WL 743762, at *1 (Tex. App.—Dallas Dec. 30, 1996, no pet.).

But, the Norman decision is not controlling here. In Norman, the appellant relied on the Texas

Code of Criminal Procedure to assert the trial judge was disqualified because of bias. Id. After

concluding there was no evidence to support disqualification on the ground appellant had raised,

we further observed that there is a common law basis for disqualification due to bias. In so

doing, we noted that appellant had not raised that issue on appeal. Specifically, this court stated:

                      Appellant does not argue common law judicial bias and we note that
                      appellant failed to object at the trial court level that the court was biased.
                      Appellant did not file a motion for disqualification or a motion to recuse.
                      Therefore, appellant waived any error.

Id. Therefore, because the issue of common law disqualification was not raised in the Norman

court, the case does not inform our decision here.8

           We need not determine here whether there is a distinction between the preservation of

error requirements when the case involves common law bias rather than the automatic grounds



     8
       In support of its waiver argument, the State also relies on Jennings v. Garner, 721 S.W.2d 445, 446 (Tex. App.—Tyler 1986, no pet.).
Jennings did not involve disqualification based on an alleged common law bias, but rather the failure to raise impartiality as a “disability” under
TEX. R. CIV. P. 18a(a) in a motion to recuse.



                                                                      –6–
for disqualification in the statute and the constitution because even had the issue been raised, the

record does not support disqualification.

B. Was the trial judge disqualified because of extrajudicial bias?

       We conclude the trial judge was not disqualified because of an extrajudicial bias. An

extrajudicial source is one arising outside the courtroom or the functioning of the court system.

Roman v. State, 145 S.W.3d 316, 321 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

Conversely, if a judge’s remarks arise from the case proceedings, they are not deemed to arise

from an extrajudicial source. See Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex. App.—

Houston [14th Dist.] 1997, no pet.). As the Supreme Court observed:

       The judge who presides at a trial, may, upon completion of the evidence, be
       exceedingly ill disposed towards the defendant, who has been shown to be a
       thoroughly reprehensible person. But the judge is not thereby recusable for bias or
       prejudice, since his knowledge and the opinion it produced were properly and
       necessarily acquired in the course of the proceedings, and are indeed sometimes
       (as in a bench trial) necessary to completion of the judge’s task.

Liteky, 510 U.S. at 550–51.

       Courts enjoy a presumption of impartiality. Ex parte Ellis, 275 S.W.3d 109, 115–17 (Tex.

App.—Austin 2008, no pet.). The presumption results from the well-accepted notions that

conscientious judges will nullify the effect of any potential bias by making themselves aware of

those possible biases and that they understand “their duty to render cases upon a proper record

and to disregard” extraneous matters. Liteky, 510 U.S. at 562 (Kennedy, J., concurring). When

partiality is at issue, the complainant must provide facts sufficient to establish that a reasonable

person, knowing all the circumstances involved, would harbor doubts as to the judge’s

impartiality. See Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992).

       Appellant identifies the following comments as evincing the trial judge’s “obvious” bias:

(1) “Wow, you really are a family guy. You got drug dealers coming over to your house. You’re

making drug deals there at your Mom’s house;” (2) “I know plenty of heroin addicts that would
                                                –7–
never think of using a gun against somebody;” (3) “If you want to do that, that’s fine. You sure

have loyalty to some guy that gives you a gun. Too bad you don’t have that same loyalty to your

family;” and (4) “Instead of telling your family, you know what Family, I’ve taken enough

money from you, just leave me here in jail, don’t bond me out, don’t hire me lawyer, I’m going

to take what I deserve. You didn’t do that. You kept asking for more and more. And then you

screwed them over by violating the condition of bond.” Appellant’s argument, however, requires

the consideration of these comments in a vacuum, and this we decline to do.

       Placed in the appropriate context, the trial judge’s comments were made in response to

the testimony developed at the plea hearing. The testimony established that appellant kept using

drugs and conducting drug transactions in the home where his young children reside. The

testimony also showed that appellant blamed his conduct on drugs rather than taking

responsibility for his actions. When the trial judge asked appellant where he obtained the gun

used in the robbery, appellant declined to name the individual who had given him the gun,

stating only that the person was someone he had done drugs with. The testimony further

established that although appellant’s family had posted bond to get him out of jail, he

immediately committed another drug offense. None of the judge’s comments were based on an

extrajudicial source. Instead, they were based on facts the judge learned at the hearing.

       In closing argument, the State argued that appellant’s actions demonstrate that he does

not care about anyone. When the trial judge pronounced the sentence, she agreed with the State.

Specifically, the judge stated, “Everybody your whole life has been trying to help you . . . And

here you are yet again, making your family cry. . . I agree with the State. You don’t care about

anybody, not your children, not your family, nobody . . . .”

       Under these circumstances, appellant has failed to demonstrate that a reasonable person

would harbor doubts as to the judge’s impartiality. See Kemp, 846 S.W.2d at 305. Because the

                                                –8–
trial judge’s comments do not reflect an extrajudicial bias that resulted in the denial of due

process, we affirm the trial court’s judgment.


                                                       /Bill Whitehill/
                                                       BILL WHITEHILL
Do Not Publish                                         JUSTICE
TEX. R. APP. P. 47
131562F.U05




                                                 –9–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

PAUL ANGELO ESCOBAR, Appellant                    On Appeal from the 204th Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01562-CR       V.                       Trial Court Cause No. F-1262912-Q.
                                                  Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                      Justices Lang and Brown participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 10, 2015.




                                           –10–
