                          NUMBER 13-16-00682-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MARTE C. GUILLEN,                                                           Appellant,

                                           v.

CAMERON COUNTY AND LA FERIA
INDEPENDENT SCHOOL DISTRICT,                                                Appellees.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Rodriguez

      Pro se appellant Marte C. Guillen appeals from a default judgment.          By five

issues, Guillen contends that the judge erred in denying his motion to recuse and that the

default judgment was faulty. We affirm.
                              I.      PROCEDURAL HISTORY

       This is a suit to collect delinquent taxes on property. In 2010, appellees Cameron

County and La Feria Independent School District filed this suit to collect taxes from Delia

Guillen, who was listed as the owner of the property. When it was discovered that Delia

was deceased, appellees amended their petition to sue the known and unknown heirs of

Delia Guillen and any other person having an interest in the property. Guillen answered,

as did other defendants who do not participate in this appeal.

       The case was called for trial on February 26, 2013.        Guillen did not appear.

Judge Janet Leal rendered a default judgment in favor of appellees. Guillen filed a

motion for new trial. He also moved to recuse Judge Leal. Judge Leal granted the

motion for new trial and voluntarily recused herself.

       The case was then assigned to Judge Manuel Bañales, a visiting judge. Guillen

moved to recuse and disqualify Judge Bañales as well.         Judge Bañales denied the

motion.

       The motion to recuse Judge Bañales was referred to Judge Ana Lisa Garza for

further consideration. Judge Garza held an evidentiary hearing, at which Guillen testified

concerning his belief that Judge Bañales could not be impartial. On July 12, 2016, Judge

Garza crossed out the word “GRANTED” on Guillen’s proposed order, wrote “DENIED,”

and signed her name. However, Judge Garza did not cross out the next sentence in the

order—“Therefore, it is hereby decreed that the judge of this Court is hereby recused”—

leaving her order unclear.

       The case was nonetheless returned to Judge Bañales, who rendered a default

judgment after Guillen failed to appear at trial on August 29, 2016.
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       Guillen timely filed a motion for new trial on September 26, 2016. While that

motion was pending, Judge Garza entered an “Order Nunc Pro Tunc” on October 3, 2016,

in which she clarified her order on the motion to recuse Judge Bañales. The Order Nunc

Pro Tunc stated that the motion to recuse was in all respects denied. Judge Bañales

denied the motion for new trial on November 7, 2016.

       Guillen filed his notice of appeal on December 12, 2016.

                                    II.    JURISDICTION

       As an initial matter, appellees question the validity of Guillen’s notice of appeal in

two ways.     First, appellees dispute whether it was timely.     Appellees note that the

judgment was rendered on August 29, 2016, but Guillen did not file his notice of appeal

until December 12, 2016, more than ninety days later. Appellees contend that the notice

of appeal was therefore untimely, even with a motion for new trial. See TEX. R. APP. P.

26.1(a)(1).

       However, if a judgment is modified in any respect while the trial court retains

plenary power, appellate deadlines do not run from the original judgment but “from the

date when the modified judgment is signed.” TEX. R. APP. P. 4.3(a); Arkoma Basin Expl.

Co., Inc. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 390 (Tex. 2008). The appellate

deadlines are restarted by “any change, whether or not material or substantial.” Arkoma

Basin, 249 S.W.3d at 390–91. The Order Nunc Pro Tunc modified the final judgment, in

that the Order Nunc Pro Tunc corrected an earlier interlocutory order that merged into the

final judgment. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 924 & n.10 (Tex.

2011). This modification reset the ninety-day period for filing a notice of appeal. See

Arkoma Basin, 249 S.W.3d at 390–91. Guillen filed his notice of appeal on December
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12, 2016, before the reset ninety-day period expired. See TEX. R. APP. P. 26.1(a)(1).

Thus, contrary to appellees’ argument, the notice of appeal was timely.

       Next, appellees challenge the content of the notice of appeal. Appellees assert

that Guillen failed to satisfy appellate rule 25.1(d)(2), which requires the notice of appeal

to “state the date of the judgment or order appealed from.” TEX. R. APP. P. 25.1(d)(2).

The notice of appeal stated only the date of the final judgment from August 29, 2016; the

notice of appeal did not mention the Order Nunc Pro Tunc that was rendered on October

3, 2016. Appellees contend that because the Order Nunc Pro Tunc was not mentioned

in the notice of appeal, Guillen may not now challenge any issue related to the Order

Nunc Pro Tunc. We disagree.

       Rule 25.1(d)(2) does not require an appellant to list in the notice of appeal every

ruling that he desires to challenge on appeal.            Human Biostar, Inc. v. Celltex

Therapeutics Corp., 514 S.W.3d 844, 846–47 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied) (cataloging cases). Instead, by stating the date of the original final judgment in

his notice of appeal, Guillen “brought forward the entire case” for consideration on appeal,

including any other, subsidiary rulings. See Gunnerman v. Basic Capital Mgmt., Inc.,

106 S.W.3d 821, 824 (Tex. App.—Dallas 2003, pet. denied).              Appellate courts are

required, after all, to interpret the rules of appellate procedure liberally in order to reach

the merits of an appeal whenever possible. Warwick Towers Council of Co-Owners ex

rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex.

2008) (per curiam); see In re M.D.G., 527 S.W.3d 299, 303 (Tex. App.—El Paso 2017,

no pet.) (overruling a challenge to defects under rule 25.1(d)(2) on this basis). “We have

repeatedly held that a court of appeals has jurisdiction over any appeal in which the
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appellant files an instrument in a bona fide attempt to invoke the appellate court’s

jurisdiction.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997); see Darya, Inc. v.

Christian, 251 S.W.3d 227, 231–32 (Tex. App.—Dallas 2008, no pet.) (overruling a

challenge to defects under rule 25.1(d)(2) on this basis).1

         Construing our appellate rules liberally in favor of jurisdiction, see Warwick, 244

S.W.3d at 839, we conclude that Guillen’s timely notice of appeal concerning the final

judgment was a bona fide attempt to invoke the appellate court’s jurisdiction, which

brought forward the entire case for our review.               See Verburgt, 959 S.W.2d at 616;

Gunnerman, 106 S.W.3d at 824. We therefore proceed to review the merits of Guillen’s

case.2

                                       III.    PLENARY POWER

         In Guillen’s fifth issue, he contends the trial court lacked plenary power when it

entered the Order Nunc Pro Tunc.               Guillen argues that Judge Garza’s initial order

denying recusal on July 12, 2016 was a final judgment. Guillen contends that the trial

court’s plenary power expired thirty days later, and the trial court therefore lacked plenary

power when it attempted to enter a judgment nunc pro tunc on October 3.

         However, when not following a trial on the merits, a judgment is only final if it does

one of two things: (1) expressly disposes of all parties and claims, or (2) includes a clear

and unequivocal finality phrase such as “this judgment finally disposes of all parties and

         1Furthermore, even assuming that our appellate rules were violated, at least one court has held
that no harm flows from a violation of rule 25.1(d)(2) if the parties’ briefing shows that they are able to
discern which orders are the subject of appeal. See In Interest of M.D.G., 527 S.W.3d 299, 303 (Tex.
App.—El Paso 2017, no pet.). Here, appellees’ briefing shows that they are well aware of which orders
are disputed. See id.

         2Appellees filed a motion raising the same arguments concerning the notice of appeal and asking
this Court to dismiss the appeal for want of jurisdiction. We deny the motion.
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all claims.”    In re Elizondo, 544 S.W.3d 824, 826 (Tex. 2018) (per curiam) (orig.

proceeding). The July 12 order did neither. It is therefore not a final judgment. 3 See

id.

        Instead, final judgment was rendered on August 29, 2016. On that date, Judge

Bañales rendered a default judgment which recited that it finally disposed of all parties

and all claims and was appealable, therefore making it a final judgment. See id.

        With the date of the final judgment fixed, the question of whether the trial court

retained plenary power is readily determinable. Ordinarily, the trial court retains plenary

power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty

days after the final judgment is signed. TEX. R. CIV. P. 329b(d). However, if a motion

for new trial is timely filed, the trial court retains plenary power to modify the judgment

until thirty days after all such timely-filed motions are overruled. See id. R. 329b(e).

Guillen timely filed a motion for new trial on September 26, 2016, and that motion had not

been overruled when the Order Nunc Pro Tunc was rendered on October 3, 2016. Thus,

contrary to Guillen’s assertion, the trial court retained plenary power when it rendered the

Order Nunc Pro Tunc.

        We overrule Guillen’s fifth issue.

                      IV.     AUTHORITY TO CORRECT ORDER SUA SPONTE

        By his second issue, Guillen contends that Judge Garza abused her discretion in

correcting her earlier order sua sponte, without a hearing or motion from any party.



        3 Our rules of procedure make clear that an order denying recusal is not, by necessity, a final

judgment. “An order denying a motion to recuse may be reviewed only for abuse of discretion on appeal
from the final judgment.” TEX. R. CIV. P. 18a(j)(1)(A). This rule makes clear an order denying a motion to
recuse is separate and distinct from a final judgment.
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       However, the court has authority to correct any error in its orders and may do so

sua sponte and without notice while it retains plenary power. Horseshoe Bay Resort

Sales Co. v. Lake Lyndon B. Johnson Imp. Corp., 53 S.W.3d 799, 815 (Tex. App.—Austin

2001, pet. denied); see Perez Bustillo v. State, 718 S.W.2d 844, 848 (Tex. App.—Corpus

Christi 1986, no writ); see also Communicon, Ltd. v. Guy Brown Fire & Safety, Inc., No.

02-17-00330-CV, 2018 WL 1414837, at *9 (Tex. App.—Fort Worth Mar. 22, 2018, no pet.)

(mem. op.); Forest Sun Chancellor, L.P. v. City of Dallas, No. 05-01-01125-CV, 2001 WL

1243460, at *2 (Tex. App.—Dallas Oct. 18, 2001, no pet.) (op.). A motion and a hearing

were therefore not required before the trial court could issue the Order Nunc Pro Tunc.

       Guillen’s second issue is overruled.

                                     V.       RECUSAL

       By his third issue, Guillen contends that Judge Garza erred in denying his motion

to recuse Judge Bañales. Guillen contends that he presented compelling evidence that

Judge Bañales had been unfair and overtly political in his handling of a prior criminal case

against Guillen. He contends that this evidence should have obliged Judge Garza to

grant the motion to recuse.

A.     Testimony in Support of Motion to Recuse

       At the recusal hearing, Guillen testified that he was once employed as a paralegal

with the Willacy County District Attorney’s office. He explained that because of his

involvement in politics, local authorities became hostile to him, and that hostility led him

to be indicted three times in the 1990s.       He believed that one of those cases was

presided over by Judge Bañales. According to Guillen, Judge Bañales’s handling of the



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case was unfair and politically biased in that Judge Bañales refused to hear his

applications for writ of habeas corpus until after a local election had concluded.

       Guillen believed that local bias against him was so pervasive that it was impossible

to receive a fair trial in that locality, even though Judge Bañales was a visiting judge from

another county. Guillen expressed that local police attempted to arrest him without any

authority, that local taxing authorities had also treated him unfairly, and that there had

been attempted kidnappings of his family. He was certain that through some form of

conspiracy, the same sort of bias would be imparted on Judge Bañales as was displayed

in the handling of his arrests and taxes. On cross-examination, Guillen agreed that he

had been disbarred as an attorney, though he maintained that this too was due to bias

and fabricated evidence.

       After considering this evidence, Judge Garza denied Guillen’s motion to recuse.

B.     Standard of Review and Applicable Law

       We review the denial of a motion to recuse under an abuse of discretion standard

on appeal from the final judgment. TEX. R. CIV. P. 18a(j)(1)(A); Lueg v. Lueg, 976 S.W.2d

308, 310 (Tex. App.—Corpus Christi 1998, pet. denied). An abuse of discretion occurs

when a trial court’s ruling is arbitrary and unreasonable, without regard for guiding legal

principles, or without supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d

708, 712 (Tex. 2016) (orig. proceeding). A trial court does not abuse its discretion for

want of evidence if some evidence supports its decision. In re BP Prods. N. Am., Inc.,

244 S.W.3d 840, 848 (Tex. 2008) (orig. proceeding).

       Texas Rule of Civil Procedure 18b provides multiple grounds for recusal. See

TEX. R. CIV. P. 18b(b). Potentially relevant to this case, rule 18b provides that a judge
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must recuse himself in any proceeding in which the judge’s impartiality might reasonably

be questioned or the judge has a personal bias or prejudice concerning the subject matter

or a party. Id.

       Recusal is appropriate if a reasonable member of the public at large, knowing all

the facts in the public domain concerning the judge’s conduct, would have a reasonable

doubt that the judge is actually impartial. Estate of Nunu, 542 S.W.3d 67, 87 (Tex.

App.—Houston [14th Dist.] 2017, pet. denied); Drake v. Walker, 529 S.W.3d 516, 528

(Tex. App.—Dallas 2017, no pet.). “‘[J]udicial rulings alone almost never constitute a

valid basis for a bias or partiality motion,’ and opinions the judge forms during a trial do

not necessitate recusal ‘unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible.’” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240

(Tex. 2001) (per curiam) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

C.     Application

       Guillen testified that in the 1990s, Judge Bañales presided over the early stages

of a criminal prosecution in which he was the defendant. He testified that Judge Bañales

delayed ruling on his applications for habeas corpus until it was politically expedient to do

so. Guillen contends that this delay shows Judge Bañales’s bias against him.

       However, Guillen’s testimony concerning Judge Bañales’s delay fails to establish

an abuse of discretion. Even if Judge Garza believed this testimony, she could have

reasonably determined that Judge Bañales’s delay was not a manifestation of bias, but

an impartial exercise of the court’s “inherent power to control the disposition of cases ‘with

economy of time and effort for itself, for counsel, and for litigants.’” See id. (quoting

Landis v. North Am. Co., 299 U.S. 248, 254 (1936)) (rejecting a claim of bias based on
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time management). These past “judicial rulings alone” do not suggest the sort of deep-

seated favoritism or antagonism that would constitute a valid basis for a motion to recuse.

See id.

       Guillen also testified concerning his assumption that Judge Bañales would fall prey

to coercion from local forces. However, we start with the opposite assumption of a

judge’s character: “we accept the notion that the conscientious judge will, as far as

possible, make himself aware” of possible biases and “nullify their effect.” See Liteky,

510 U.S. at 562 (Kennedy, J., concurring) (internal quotations omitted). “The acquired

skill and capacity to disregard extraneous matters is one of the requisites of judicial office.”

Id. From that starting point, the movant bears the burden of proving recusal is warranted.

Drake, 529 S.W.3d at 528.         Guillen’s testimony concerning a far-flung conspiracy

involving his taxes, criminal charges, and disbarment did not carry that burden. See

Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 375 (Tex. App.—Dallas 2005, no pet.)

(rejecting recusal claim where appellant presented no evidence, other than his own

testimony, that judge was part of a cult that was conspiring against him).

       We conclude that Judge Garza did not abuse her discretion in denying Guillen’s

motion to recuse Judge Bañales. We therefore overrule Guillen’s third issue.

                           VI.     APPEAL OF DEFAULT JUDGMENT

       By his first and fourth issues, Guillen challenges the default judgment on its merits.

However, Guillen failed to preserve error because he did not raise these issues in a

motion for new trial to set aside the default judgment. Rule 324 provides that a point in

a motion for new trial is a prerequisite to a complaint on appeal on which evidence must

be heard. See TEX. R. CIV. P. 324(b)(1). As examples of such complaints, rule 324
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identifies complaints involving the “failure to set aside a judgment by default.”     Id.;

McAllen Med. Ctr. v. Rivera, 89 S.W.3d 90, 94 (Tex. App.—Corpus Christi 2002, no pet.).

      Guillen makes factual assertions in his brief which “underscore the need for an

evidentiary hearing.”   See Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—

Houston [14th Dist.] 2016, no pet.).      Guillen contends that for several years, local

authorities have been taxing him on two properties that do not belong to him, one of which

is a local cemetery. Guillen contends, without any record citation, that each year the

county’s “clerks would assure Appellants that just pay that one year and Appellants’

names would be removed from the tax rolls.” Guillen alleges that the promised removal

never occurred, and, instead, his taxes increased. These sorts of factual conflicts must

be resolved in the trial court before we, the appellate court, can address them. See id.

Because Guillen never called for an evidentiary hearing or presented these issues in a

motion for new trial, he has preserved nothing for appellate review. See id.; see also

Castillo v. Zorrilla, No. 13-12-00777-CV, 2013 WL 4715113, at *3 (Tex. App.—Corpus

Christi Aug. 30, 2013, no pet.) (mem. op.) (same).

      We overrule Guillen’s first and fourth issues.

                                   VII.   CONCLUSION

      We affirm the judgment of the trial court.



                                                              NELDA V. RODRIGUEZ
                                                              Justice

Delivered and filed the 15th
day of November, 2018.



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