                                      PD ________-15              September 9, 2015
                                      PD ________-15
                                      PD ________-15
                                     ________________

                                    IN THE
                          COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                               ________________

                                    RODGER GAMMONS,
                                              Appellant
                                          vs.

                                    THE STATE OF TEXAS,
                                                 Appellee

             APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

   From Appeal No. 06-15-00023-CR, 06-15-00024-CR, and 06-15-00025-CR
                                 out of the
                         Court of Appeals for the
                          Sixth Judicial District at
                             Texarkana, Texas
                           ________________

                      BODKIN NIEHAUS & DICKSON PLLC
                               J. Edward Niehaus
                            State Bar No. 24074812
                          207 W. Hickory St. Suite 309
                             Denton, Texas 76201
                           Telephone: (940)600-1295
                            Jason@BNDLegal.com
                        ATTORNEY FOR APPELLANT
                                                            Oral Argument IS requested




Appellant's Petition for Discretionary Review                                1
                              Identity of Parties and Counsel

       1. Trial Judge: The Honorable Eddie Northcutt presided over the trial of this

case, Presiding Judge of the 8th Judicial District Court of Hopkins County, 110 Main

St. Sulphur Springs, TX 75482.

       2. Appellant: Roger Dale Gammons TDC #01978521, BYRD Unit, 21 FM

247, Huntsville, TX 77320.

       3. Counsel for Appellant:

       a. Trial Counsel: Heath Hyde: 900 Jackson St. Suite 535, Dallas, TX 75202

       b. Direct Appeal & PDR: J. Edward Niehaus, 207 W. Hickory St. Suite 309,

Denton, Texas 76201.

       4. Counsel for the State of Texas:
       a. The State is represented on appeal by and through Will Ramsay, Hopkins
County District Attorney, and Mr. Peter Morgan, Assistance District Attorney, at the
trial court level and on appeal.




Appellant's Petition for Discretionary Review                                2
‘
                                                      TABLE OF CONTENTS

Identity of Parties and Counsel....................................................................................................................... 2
INDEX OF AUTHORITIES ........................................................................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT ................................................................................... 7
STATEMENT OF ABBREVIATIONS ........................................................................................................ 7
STATEMENT OF THE CASE ..................................................................................................................... 7
SUMMARY OF ISSUES ............................................................................................................................... 8
STATEMENT OF PROCEDURAL HISTORY ........................................................................................... 9
GROUND FOR REVIEW ONE .................................................................................................................. 9
    REVISIT PRECEDENT: This Court should reconsider application of the judicial recusal rule modified
    by Hathorne v. State as it applies to prior defense counsel, as the attorney-client relationship is of a
    substantially different nature for a defendant-attorney (i.e. attorney-client) relationship compared to the
    prosecutor-defendant relationship, making unworkable a uniform recusal rule without regard to the nature
    of the prior representation. ......................................................................................................................... 9
GROUND FOR REVIEW TWO................................................................................................................ 16
    RESOLVE CONFLICT: The Court of Appeals erred in finding Appellant waived the trial court’s
    disqualification for having personal knowledge of a fact in issue, specifically personal knowledge of the
    enhancement paragraph where the Court was counsel for Appellant in the case resulting in the enhancement
    paragraph. ................................................................................................................................................ 16
GROUND FOR REVIEW THREE ........................................................................................................... 18
    RESOLVE CONFLICT: The Court is presented with an opportunity to clarify an apparent conflict
    between its rulings in Hathrone v. State and Murphy v. State with regard to when a Judge’s prior involvement in
    a case requires recusal. .............................................................................................................................. 18
PRAYER FOR RELIEF .............................................................................................................................. 20
CERTIFICATE OF SERVICE ................................................................................................................... 21
CERTIFICATE OF COMPLIANCE .......................................................................................................... 21




Appellant's Petition for Discretionary Review                                                                                                      3
                                               INDEX OF AUTHORITIES
Cases
Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998) ................................................... 13, 15
Camper v. State, 146 Tex. Crim. 522, 176 S.W.2d 943 ...................................................................................19
Carr v. Fife, 156 U.S. 494, 15 S. Ct. 427, 39 L. Ed. 508................................................................................20
Chambers v. Hodges, 23 Tex. 104, 105. .............................................................................................................18
Ex parte Hopkins, Tex.Crim.App., 399 S.W. 2d 551 .............................................................................. 16, 20
Ex parte Stubblefield, Tex.Crim.App., 412 S.W.2d 63.....................................................................................14
Ex parte Washington, 442 S.W.2d 391 (Tex. Crim. App. 1969) ....................................................... 12, 17, 19
Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011) .................................................................. 12, 18
Garrett v. State, 155 Tex. Crim. 214, 233 S.W. 2d 498 ........................................................................... 16, 20
Goodspeed v. Beto, 341 F.2d 908; cert. den. 386 U.S. 926, 17 L. Ed. 2d 798, 87 S. Ct. 867; reh. den. 386
  U.S. 969, 18 L Ed 2d 126, 87 S. Ct. 1032 ......................................................................................... 16, 20
Graham v. State, 43 Tex. Crim. 110, 63 S.W. 558 ...........................................................................................19
Gresham v. State, 43 Tex. Crim. 466, 66 S.W. 845 ..........................................................................................17
Hathorne v. State, 459 S.W.2d 826, 828 (Tex. Crim. App. 1970) ....................................................... 9, 12, 14
Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) ..................................................................20
Koenig v. State, 33 Tex. Crim. 367, 26 S.W. 835 ..............................................................................................20
Koll v. State, 143 Tex. Crim. 104, 157 S.W. 2d 377 ................................................................................. 16, 20
Lee v. British-American Mortgage Co. (Tex. Civ. App.), 51 Tex. Civ. App. 272, 115 S.W. 320 .....................18
Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997) .......................................................................13
Muro v. State, Tex.Crim.App., 387 S.W. 2d 674 ...................................................................................... 16, 20
Murphy v. State, 424 S.W.2d 231, 233 (Tex. Crim. App. 1968) ....................................................... 15, 16, 20
Pahl v. Whitt (Tex. Civ. App.), 304 S.W.2d 250 ..............................................................................................18
Pennington v. State, 332 S.W.2d 569 ..................................................................................................................12
Proctor v. State, 967 S.W.2d 840, 844-45 (Tex. Crim. App. 1998) ................................................................13
State v. Herndon, 215 S.W.3d 901, 907-08 (Tex. Crim. App. 2007) ...................................................... 12, 18
State v. Toney, 979 S.W.2d 642, 645-46 (Tex. Crim. App. 1998) (Keller, J., concurring) ................... 13, 14



Appellant's Petition for Discretionary Review                                                                                             4
Trinkle v. State, 59 Tex. Crim. 257, 127 S.W. 1060 ........................................................................................20
Wood v. State, 166 Tex. Crim. 94, 311 S.W.2d 409.........................................................................................19
Woodland v. State, 147 Tex. Crim. 84, 178 S.W.2d 528 ........................................................................... 17, 19
Woody v. State, Tex.Crim.App., 1902, 69 S.W. 155 ........................................................................................19


Statutes
Tex. Code Crim. Proc. Art. 30.01. .......................................................................................................... 10, 18
Rules
Tex. R. App. P. 43.2(d)........................................................................................................................ 10, 13, 15
Tex. R. App. Pro. 66.3 ....................................................................................................................................... 5
Tex. R. App. Pro. 66.3(c) .......................................................................................................................... 11, 13
Tex. R. App. Pro. 9...........................................................................................................................................16
Tex.R.Civ.P. 18b(b)(3) ........................................................................................................................................ 3

Tex. R. Civ. P. 18b(b)(5)..................................................................................................................................... 5

Treatises
33 Tex.Jur.2d, Judges, Sec. 57, pp. 426, 427 .......................................................................................... 14, 19
Constitutional Provisions
Tex. Const. Art. V, § 11 .............................................................................................................................. 5, 12




Appellant's Petition for Discretionary Review                                                                                                     5
                                      PD ________-15
                                      PD ________-15
                                      PD ________-15
                                     ________________

                                    IN THE
                          COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                               ________________

                                    RODGER GAMMONS,
                                              Appellant
                                          vs.

                                    THE STATE OF TEXAS,
                                                 Appellee

        ________________________________________________________

        APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
       _________________________________________________________


TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

       Appellant, Roger Gammons, respectfully submits this Petition for Discretionary

Review and moves that this Honorable Court grant review of this cause and offers the

following in support thereof:

       The Court of Appeals has decided a question of law that is in conflict with a

decision of this Court. See Tex. R. App. Pro. 66.3(c). The Court is presented the

opportunity to resolve an apparent conflict between two of its decisions. Tex. R. App.

Pro. 66.3.



Appellant's Petition for Discretionary Review                                 6
                STATEMENT REGARDING ORAL ARGUMENT

       If this petition is granted, Appellant requests oral argument. Oral argument may

assist the Court in applying the facts to the issues raised. It is suggested that oral

argument may help simplify the facts and clarify the issues.

                         STATEMENT OF ABBREVIATIONS

       For purposes of clarity, throughout this Petition, Appellant uses the following

abbreviations when referencing the trial court’s records:

       RR refers to the Reporter’s Record;

       CR1 refers to the Clerk Record in 1423872;

       CR2 refers to the Clerk Record in 1423873;

       CR3 refers to the Clerk Record in 1423874

       Cause number 1423872 is referred to as “case 872”

       Cause number 1423873 is referred to as “case 873”

       Cause number 1423874 is referred to as “case 874”

                              STATEMENT OF THE CASE

       Appellant was charged by indictment with possession of a penalty group one

controlled substance, with intent to deliver, in an amount over 4g but less than 200g in

cause number 1423872 (hereinafter “case 872”)(CR1 at 1, 42), with tampering with

physical evidence in cause number 1423873 (hereinafter “case 873”)(CR2 at 1, 41), and

with 4g but less than 200g in cause number 1423874 (hereinafter “case 874”)(CR3 at 1,



Appellant's Petition for Discretionary Review                                   7
42), all of which were pending in the 8th Judicial District Court of Hopkins County,

Texas, the Honorable Eddie Northcutt, Presiding, (RR II 6 – 8). Appellant's

punishment range was enhanceable (RR II 8; CR1 at 29; CR2 at 18; CR3 at 26) and after

hearing on punishment, Appellant was sentenced to incarceration for life, (CR1 at 34 –

35, 39 – 40; CR2 at 31 – 32, 37 – 38; CR3 at 33 – 34, 38 – 39; RR IV 43).

       In the Sixth Court of Appeals, Texarkana, Appellate raised three (3) issues: First,

Appellant's Plea of Guilty was not Voluntarily Entered Where Appellant was

Incompletely Admonished Regarding His Eligibility for Probation. Second, The Court

Erred by Failing to Recuse Himself Where the Court had Personal Knowledge of

Disputed Facts Relating to Appellant's Enhancement Paragraph(s). Third, The Court

Erred by Failing to Recuse Himself After Having Previously Served as Counsel to the

Defendant in Related Criminal Proceedings Relevant to the Case for Which Appellant

Appeared Before the Court.

       The Sixth Court of Appeals, in unpublished opinion, overruled each issue

(Opinion at 1 – 22). This petition follows.

                                  SUMMARY OF ISSUES

       Here, Appellant raises three questions: First, Appellant questions the continued

efficacy of this Court’s decision in Hathorne v. State, 459 S.W.2d 826 (Tex. Crim. App.

1970) specifically as applied to former defense counsel presiding over a new case.

Second, Appellant questions the Court of Appeals ruling that judicial recusal under



Appellant's Petition for Discretionary Review                                    8
Tex.R.Civ.P. 18b(b)(3) is waivable; there is an apparent conflict between the decisions

of this Court and the text of the recusal rule. Third, Appellant requests the Court

resolve an apparent conflict between Murphy v. State and Hathorne v. State with regard to

when a Judge who previously acted as counsel must recuse themselves.

                    STATEMENT OF PROCEDURAL HISTORY

       After Appellant’s plea of guilty and hearing on punishment, Appellant was

sentenced to incarceration for life, (CR1 at 34 – 35, 39 – 40; CR2 at 31 – 32, 37 – 38;

CR3 at 33 – 34, 38 – 39; RR IV 43). As this case did not involve a plea bargain, Appellant

had a right to appeal, (CR1 at 36; CR2 at 34; CR3 at 35).

       On August 11, 2015 the Sixth Court of Appeals at Texarkana, Texas, affirmed

the conviction.      Because the existing precedent from this Court compelled the

conclusion reached by the Court of Appeals, no motion for rehearing was filed,

(Opinion 6).

       This Petition for Discretionary Review is being filed on Friday, September 4, 2015.

Appellant sent this petition by delivering the same to FedEx on Friday, September 4, 2015

to be delivered by overnight delivery to the Court of Criminal Appeals and additionally

has e-filed this petition in accordance with the new e-filing provisions effective January

1, 2014.

                             GROUND FOR REVIEW ONE

       This Court should reconsider application of the judicial recusal rule
       modified by Hathorne v. State as it applies to prior defense counsel,


Appellant's Petition for Discretionary Review                                    9
       as the attorney-client relationship is of a substantially different
       nature for a defendant-attorney (i.e. attorney-client) relationship
       compared to the prosecutor-defendant relationship, making
       unworkable a uniform recusal rule without regard to the nature of
       the prior representation.

       In the Court of Appeals, the Appellant stipulated that this Court’s precedent

compelled adverse ruling on his argument that Judge Northcutt, who represented

Appellant in a case used for purposes of applying the habitual felony enhancement,

should be recused from a case in which that enhancement is “in issue.” See Appellant’s

Br. at 25; Opinion at 1 – 13.

       An adverse ruling from the Court of Appeals was procedurally required to brief

the issue in this Court. Moreno v. State, 294 S.W.3d 594 (Tex. Crim. App. 2009). Appellant

received that adverse ruling, and now contests it.

       The Appellant would submit that review is necessary to improve the

jurisprudence of the State. See Tex. R. App. Pro. 66.3

       Law:

       “No judge … shall sit in any case … where he has been of counsel for the State

or the accused.” Tex. Code Crim. Proc. Art. 30.01.

       “No judge shall sit in any case … when the judge shall have been counsel in the

case.” Tex. Const. Art. V, § 11

       “A judge must recuse in any proceeding in which: the judge participated as

counsel, adviser, or material witness in the matter in controversy…” Tex. R. Civ. P.



Appellant's Petition for Discretionary Review                                    10
18b(b)(5)

          [T]he question is whether the inclusion of a prior conviction (at which time the

trial judge was district attorney) in the State's pleading (the indictment) disqualifies the

judge on the ground he was counsel in the case.” Hathorne v. State, 459 S.W.2d 826, 828

(Tex. Crim. App. 1970).

          Judicial recusal “provisions have been construed as being mandatory and must

be observed.” Pennington v. State, 332 S.W.2d 569, 570, (listing authorities)1 see also Ex

parte Washington, 442 S.W.2d 391 (Tex. Crim. App. 1969).

           Standard of Review:

          Judicial recusal is review for abuse of discretion. Gaal v. State, 332 S.W.3d 448,

456 (Tex. Crim. App. 2011). A trial court abuses its discretion when it acts arbitrarily

and unreasonably, without reference to guiding rules or principles, or when it misapplies

the law to the established facts of the case. See State v. Herndon, 215 S.W.3d 901, 907-08

(Tex. Crim. App. 2007).

          Appellant concedes that the Court’s decision was correct pursuant to the Court’s

ruling in Hathorne. Appellant advocates for a change in the law regarding judicial recusal

when the presiding judge is former defense counsel for the accused. Appellant

recognizes the weight of the burden he bears in requesting this Court depart from its

precedent.

           The doctrine of stare decisis should generally be followed, because it
1
    Overruled on other grounds in Hathorne


Appellant's Petition for Discretionary Review                                      11
       promotes judicial efficiency and consistency, it fosters reliance on judicial
       decisions, and it contributes to the actual and perceived integrity of the
       judicial process. See Proctor v. State, 967 S.W.2d 840, 844-45 (Tex. Crim. App.
       1998). It is often better to be consistent, rather than right. See Malik v. State,
       953 S.W.2d 234, 236 (Tex. Crim. App. 1997). Overruling precedent,
       however, is acceptable under certain circumstances. For example, "when
       older precedent conflicts with a newer decision that is found to be more
       soundly reasoned, we may resolve the inconsistency in favor of the more
       soundly reasoned decision." Awadelkariem v. State, 974 S.W.2d 721, 725
       (Tex. Crim. App. 1998). Another factor to consider is whether the
       reasoning underlying the older precedent has been undercut by the
       passage of time. See id. Further factors that support the overruling of
       precedent include: 1) when the original rule of law is flawed from the
       outset; 2) when the rule produces inconsistency and confusion in the law;
       3) when the rule consistently creates unjust results or places unnecessary
       burdens upon the system; and 4) when the rule creates differences
       between criminal and civil practice when a reason for the difference does
       not exist. See State v. Toney, 979 S.W.2d 642, 645-46 (Tex. Crim. App. 1998)
       (Keller, J., concurring), Hammock v. State, 46 S.W.3d 889, 892-93 (Tex. Crim.
       App. 2001)


       Facts:

       Appellant entered an open plea of guilty to three felony offenses. Appellant’s

prior criminal history subjected Appellant to the habitual felony offender enhancement.

The Judge presiding over Appellant’s open plea had previously served as defense

counsel for the Appellant in one of the cases the State used as an enhancement

paragraph in the instant cases. The Court’s presiding over the plea was not objected to

by Counsel, presumably because Counsel was aware that Hathrone would prohibit

recusal even if an objection were lodged.

       Argument:



Appellant's Petition for Discretionary Review                                          12
       There are three types of relationships between an attorney and the accused that

interplay in the criminal justice system: (1)prosecutor-defendant, (2)judge-defendant

and (3)attorney-defendant (alternatively, attorney-client).

       Appellant contends that the Court’s recusal requirement, as amended by

Hathorne, is unworkable and should be reconsidered. Specifically, Appellant requests

review of his conviction to determine whether this Court’s assertion if it actually does

“logically follow that the same [recusal] rule would have application where the trial judge

had defended the accused at the time of the prior conviction.” Hathorne v. State, 459

S.W.2d 826, 829 (Tex. Crim. App. 1970) citing Ex parte Stubblefield, Tex.Crim.App., 412

S.W.2d 63.

       Appellant requests the Court depart from the above statement of law. In order

to do so, four factors are considered:

       [First] when the original rule of law is flawed from the outset; 2) when the
       rule produces inconsistency and confusion in the law; 3) when the rule
       consistently creates unjust results or places unnecessary burdens upon the
       system; and 4) when the rule creates differences between criminal and civil
       practice when a reason for the difference does not exist. Hammock v. State,
       46 S.W.3d 889, 892-93 (Tex. Crim. App. 2001) quoting State v. Toney, 979
       S.W.2d 642, 645-46 (Tex. Crim. App. 1998) (Keller, J., concurring).

       Appellant contends that the third consideration is most applicable when

considering the current judicial recusal rule as modified by Hathorne v. State. “The

[judicial recusal] rule consistently creates unjust results” by allowing past counsel with

direct personal knowledge to preside over a case in which that personal knowledge may



Appellant's Petition for Discretionary Review                                     13
be relevant to disposition of the new case. Further, Appellant asserts that the recusal

rule as modified by Hathrone fails to adequately account for the differences inherit in

representing the State versus representing the Accused.

       The nature of the attorney-client relationship with a defense attorney and their

Client is fundamentally different from the prosecutor-defendant relationship. Using a

uniform rule for judicial recusal, without regard to the nature of the previous judge-

fails to recognize the import of the differences. This is even more true when there is

direct participation in the case.2

       Appellant contends that the existing recusal rule, which equates the attorney-

client relationship with the prosecutor-defendant relationship, is fundamentally flawed

because it fails to account for the difference in personal knowledge obtained during the

course of the relationship.

       Another available ground for review of existing precedent, as sought by

Appellant here, is, "when older precedent conflicts with a newer decision that is found

to be more soundly reasoned, we may resolve the inconsistency…" Awadelkariem v. State,

974 S.W.2d 721, 725 (Tex. Crim. App. 1998).

       Appellant is requesting that this Court extend its ruling in Murphy v. State, 424

S.W.2d 231, 233 (Tex. Crim. App. 1968), that “when a judge has actively participated in



2
  The Judge in Hathorne had not personally participated in the case. Contrast Murphy in which the
Court’s direct participation was noted as a ground for disqualification. Note, however, that the Judge
in Murphy did not actively participate, and thus was not disqualified. See Murphy 424 S.W.2d at 233.


Appellant's Petition for Discretionary Review                                               14
any prior conviction alleged for enhancement while he was the prosecuting attorney for

the State, such fact renders him disqualified to sit in the case. An exception to this rule

is that where the judge has not actively participated in the defendant's prior conviction,

he is not disqualified from sitting merely because of his former position, without proof

of his actively taking part in the conviction.” Murphy v. State, 424 S.W.2d 231, 233 (Tex.

Crim. App. 1968) citing Ex parte Hopkins, Tex.Crim.App., 399 S.W. 2d 551; Muro v. State,

Tex.Crim.App., 387 S.W. 2d 674; Garrett v. State, 155 Tex. Crim. 214, 233 S.W. 2d 498;

Koll v. State, 143 Tex. Crim. 104, 157 S.W. 2d 377; and Goodspeed v. Beto, 341 F.2d 908;

cert. den. 386 U.S. 926, 17 L. Ed. 2d 798, 87 S. Ct. 867; reh. den. 386 U.S. 969, 18 L Ed

2d 126, 87 S. Ct. 1032.

       Appellant urges this Court to grant his petition for discretionary review to allow

for full briefing on the interplay between this Court’s decisions in Hathone, Murphy, and

Ex parte Washington.3 Specifically Appellant requests this Court to extend the rulings in

Murphy and Ex parte Washington to defense counsel. Appellant believes this Court will

be able to reconcile those decisions so that Hathrone would remain intact for purposes

of recusing a former prosecutor who later presides over a new accusation but would be

reversed to the extent that it allows prior defense counsel who represented a defendant

to preside over a case raising enhancement allegations in which the Court directly



3
 Ex parte Washington relied upon Pennington and its progeny, which were partially overruled by this
Court in Hathorne. Petitioner seeks clarification as to whether Murphy and Washington can be reconciled
with Hathorne, or if this Court will now conclusively overturn them


Appellant's Petition for Discretionary Review                                                15
participated as Defense Counsel.

       Relief:

       Appellant requests the Court reverse the Court of Appeals, and remand for

further consideration. Tex. R. App. P. 43.2(d)

                             GROUND FOR REVIEW TWO

       The Court of Appeals erred in finding Appellant waived the trial
       court’s disqualification for having personal knowledge of a fact in
       issue, specifically personal knowledge of the enhancement
       paragraph where the Court was counsel for Appellant in the case
       resulting in the enhancement paragraph.

       In the Court of Appeals, Appellant argued that the Court’s personal knowledge

of the truth of an enhancement paragraph disqualified the Judge. The Court of

Appeals ruled that Appellant waived the issue. See Opinion at 9 – 10.

       The Appellant would submit that review is necessary because the Court of

Appeals judgment that recusal can be waived misconstrues the existing case law. See Tex.

R. App. Pro. 66.3(d). Alternatively, the interpretation creates a conflict with existing

precedent this Court is presented with the opportunity to clarify.

       Law:

       "Where a disqualification arises from a constitutional or statutory provision, it

cannot be waived even by consent of the parties litigant." Ex parte Wash., 442 S.W.2d

391, 393 (Tex. Crim. App. 1969) quoting Woodland v. State, 147 Tex. Crim. 84, 178 S.W.2d

528, 529-530. See also Gresham v. State, 43 Tex. Crim. 466, 66 S.W. 845. The



Appellant's Petition for Discretionary Review                                   16
disqualification of a judge is a matter affecting the jurisdiction and power of the court

to act and cannot be waived. See Pahl v. Whitt (Tex. Civ. App.), 304 S.W.2d 250; Lee v.

British-American Mortgage Co. (Tex. Civ. App.), 51 Tex. Civ. App. 272, 115 S.W. 320;

Chambers v. Hodges, 23 Tex. 104, 105.

       Contrast the text of Rule 18b(e): “The parties to a proceeding may waive any

ground for recusal after it is fully disclosed on the record.” Tex. R. Civ. P. 18b(e)

       Standard of Review:

       Judicial recusal is review for abuse of discretion. Gaal v. State, 332 S.W.3d 448,

456 (Tex. Crim. App. 2011). A trial court abuses its discretion when it acts arbitrarily

and unreasonably, without reference to guiding rules or principles, or when it misapplies

the law to the established facts of the case. See State v. Herndon, 215 S.W.3d 901, 907-08

(Tex. Crim. App. 2007).

       Facts:

       The trial court judge, the Honorable Eddie Northcutt, represented Appellant on

a criminal charge for which Appellant pled guilty. That prior guilty plea is among the

allegations which subject Appellant to the habitual offender sentencing enhancement.

Appellant’s trial counsel did not object. The Sixth Court of Appeals found the error to

be waived by trial counsel’s failure to object. Opinion at 11 – 13.

       Argument:

       Where a disqualified judge tries a criminal case the proceedings are a nullity and



Appellant's Petition for Discretionary Review                                      17
the judgment is void. Ex parte Wash., 442 S.W.2d 391, 393 (Tex. Crim. App. 1969) citing

Woody v. State, Tex.Crim.App., 1902, 69 S.W. 155; Graham v. State, 43 Tex. Crim. 110, 63

S.W. 558. Article V, Sec. 11, Vernon's Anno. Texas Constitution, note 18; Article 30.01,

V.A.C.C.P., note 12. Where such conviction is void it is subject to collateral attack.

Woodland v. State, supra. (Note, this is not a collateral attack on that conviction.)

       “These [recusal] provisions have application when the trial judge has been of

counsel for the State only in a prior conviction alleged for enhancement in the

indictment.” Ex parte Wash., 442 S.W.2d 391, 393 (Tex. Crim. App. 1969) citing Woodland

v. State, 147 Tex. Crim. 84, 178 S.W.2d 528; Camper v. State, 146 Tex. Crim. 522, 176

S.W.2d 943; Wood v. State, 166 Tex. Crim. 94, 311 S.W.2d 409.

       The above quoted authorities, the current validity of which have been verified

by Counsel, each conflict with Rule 18b(e)’s statement that the Court’s disqualification

may be waived.

       Relief:

       Appellant requests the Court reverse the Court of Appeals, and remand for

further consideration. Tex. R. App. P. 43.2(d)

                           GROUND FOR REVIEW THREE

       The Court is presented with an opportunity to clarify an apparent
       conflict between its rulings in Hathrone v. State and Murphy v. State
       with regard to when a Judge’s prior involvement in a case requires
       recusal.

       The Appellant would submit that review is necessary to clarify its jurisprudence


Appellant's Petition for Discretionary Review                                       18
with regard to when a Judge’s prior involvement in a case requires recusal. See Tex. R.

App. Pro. 66.3.

        Law:

        [W]hen a judge has actively participated in any prior conviction alleged for
        enhancement while he was the prosecuting attorney for the State, such
        fact renders him disqualified to sit in the case. An exception to this rule is
        that where the judge has not actively participated in the defendant's prior
        conviction, he is not disqualified from sitting merely because of his
        former position, without proof of his actively taking part in the
        conviction.4 Murphy v. State, 424 S.W.2d 231, 233 (Tex. Crim. App.
        1968)(internal quotations omitted)

        It is, of course, well settled 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.5 And it would
        logically follow that the same rule would have application where the trial
        judge had defended the accused at the time of the prior conviction.
        Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) citing Ex parte
        Stubblefield, Tex.Crim.App., 412 S.W.2d 63.

        Facts:

        The above quoted holdings appear to be in direct conflict with regard to whether

a Judge is required to recuse himself when he has personal knowledge of an

enhancement paragraph. This Court is presented with the opportunity to clarify the

circumstance in which the Court must recuse himself, and should avail itself of the

4
  Ex parte Hopkins, Tex.Crim.App., 399 S.W. 2d 551; Muro v. State, Tex.Crim.App., 387 S.W. 2d 674;
Garrett v. State, 155 Tex. Crim. 214, 233 S.W. 2d 498; Koll v. State, 143 Tex. Crim. 104, 157 S.W. 2d
377; and Goodspeed v. Beto, 341 F.2d 908; cert. den. 386 U.S. 926, 17 L. Ed. 2d 798, 87 S. Ct. 867; reh.
den. 386 U.S. 969, 18 L Ed 2d 126, 87 S. Ct. 1032. Murphy v. State, 424 S.W.2d 231, 233 (Tex. Crim.
App. 1968)(internal quotations omitted)
5
  Koenig v. State, 33 Tex. Crim. 367, 26 S.W. 835; Trinkle v. State, 59 Tex. Crim. 257, 127 S.W. 1060;
Goodspeed v. Beto, 5th Cir., 341 F.2d 908; 33 Tex.Jur.2d, Judges, Sec. 57, pp. 426, 427; Carr v. Fife, 156
U.S. 494, 15 S. Ct. 427, 39 L. Ed. 508.


Appellant's Petition for Discretionary Review                                                     19
opportunity.

       Argument:

       Granting review to resolve the apparent conflict between Hathorne and Murphy

would promote judicial economy by clarifying the status of the law on this question. By

clarifying the law on this question, the Court would make a definitive statement

regarding when recusal is appropriate. This would assist administrative judges in ruling

on recusal motions, and would ensure Defendants the fair and impartial hearing to

which they are constitutionally entitled.

       Relief:

       Appellant requests the Court reverse the Court of Appeals, and remand for

further consideration. Tex. R. App. P. 43.2(d)

                                  PRAYER FOR RELIEF

       For the reasons stated above, it is respectfully submitted that the Court of

Criminal Appeals of Texas should grant this Petition for Discretionary Review.

                                                Respectfully submitted,


                                                /s/J. Edward Niehaus
                                                J. Edward Niehaus
                                                State Bar No. 24074812
                                                207 W. Hickory St. Suite 309
                                                Denton, Texas 76201
                                                Telephone: 940-600-1295
                                                Jason@BNDlegal.com Email

                                                ATTORNEY FOR APPELLANT


Appellant's Petition for Discretionary Review                                   20
                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Appellant’s Brief

was electronically filed in compliance with the e-filing requirements effective 1-1-2014

with all parties in interest in the case, including Appellant and the Prosecuting

Attorney's Office (information@spa.tx.gov) on Friday, September 4, 2015


                                                /s/J. Edward Niehaus
                                                J. Edward Niehaus


                          CERTIFICATE OF COMPLIANCE

       I hereby certify that the length of this Petition for Discretionary Review is

compliant with the word count limitation contained in Tex. R. App. Pro. 9, with a total

word count of 3,506 and that the document is otherwise in compliance with type face

and font size requirements.


                                                /s/J. Edward Niehaus
                                                J. Edward Niehaus




Appellant's Petition for Discretionary Review                                  21
                   Appendix A: Opinion by Sixth Court of Appeals




Appellant's Petition for Discretionary Review                      22
                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00026-CR



         ROGER DALE GAMMONS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1423872




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           Roger Dale Gammons pled guilty, in Hopkins County, to two counts of possession of more

than four grams but less than 200 grams of a controlled substance and one count of tampering with

physical evidence. Gammons also pled “true” to two prior felony enhancements alleged by the

State, one each in Kaufman and Van Zandt Counties. Treated as a habitual felon,1 Gammons was

sentenced to life in prison for each of the three charges, with the sentences to run concurrently.

           Here, Gammons appeals from his conviction on the first count of possession of more than

four grams but less than 200 grams of a controlled substance.2 He contends that an incomplete

admonishment regarding his eligibility for community supervision rendered his guilty plea

involuntary, that the trial judge should have recused because the court had personal knowledge of

disputed facts relating to the enhancement paragraph(s), and that the trial court should have recused

because the judge previously served as Gammons’ counsel in related criminal proceedings.

           We affirm the trial court’s judgment because (1) Gammons has not demonstrated that his

plea of guilt was involuntary, (2) no error was preserved regarding any knowledge of the trial judge

regarding any enhancement allegation, and (3) the trial judge did not serve as Gammons’ counsel

regarding either offense used for enhancement in this case.




1
    See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
2
 In companion cases also decided this date, bearing our cause numbers 06-15-00027-CR and 06-15-00028-CR, we
affirm the trial court’s judgments as to the other two convictions.

                                                       2
(1)    Gammons Has Not Demonstrated that His Plea of Guilt Was Involuntary

       Gammons contends that his plea of guilty was not voluntary because the trial court’s

admonishments regarding his eligibility for community supervision were inaccurate. We disagree.

       In determining the voluntariness of a plea, we consider the totality of the circumstances,

viewed in light of the entire record. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986);

Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.—Corpus Christi 2002, no pet.); Lopez v. State, 25

S.W.3d 926, 928 (Tex. App.—Houston [1st Dist.] 2000, no pet.). “Prior to accepting a plea of

guilty . . . , the court shall admonish the defendant of . . . the range of punishment attached to the

offense . . . .” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2014). “In admonishing

the defendant . . . , substantial compliance by the court is sufficient, unless the defendant

affirmatively shows that he was not aware of the consequences of his plea and that he was misled

or harmed by the admonishment of the court.” TEX. CODE CRIM. PROC. ANN. art. 26.13(c) (West

Supp. 2014); see VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007); Seagraves

v. State, 342 S.W.3d 176, 183 (Tex. App.—Texarkana 2011, no pet.). The court may make the

admonitions either orally or in writing. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (West

Supp. 2014). If the court gives written admonitions, the court “must receive a statement signed by

the defendant and the defendant’s attorney that he understands the admonitions and is aware of the

consequences of his plea.” Id.

       There is a presumption of regularity of the judgment and the proceedings. Lopez, 25

S.W.3d at 928. Thus, if the record reflects that Smith was properly admonished, it presents a prima

facie showing that the guilty plea was made knowingly and voluntarily, shifting the burden to the

                                                  3
defendant to demonstrate that his or her plea was involuntary. Martinez v. State, 981 S.W.2d 195,

197 (Tex. Crim. App. 1998). “Once a defendant has pled guilty and attested to the voluntary nature

of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of

voluntariness.” Ybarra, 93 S.W.3d at 925.

            Article 26.13 does not require that the trial court admonish the defendant regarding his or

her eligibility for community supervision.3 See Ex parte Williams, 704 S.W.2d 773, 775 (Tex.

Crim. App. 1986); Hampton v. State, 435 S.W.3d 303, 307 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d). “However, if the trial court volunteers an admonishment on [community supervision],

the court has a duty to admonish the defendant accurately.” Hampton, 435 S.W.3d at 307; see

Williams, 704 S.W.2d at 775. This is because a guilty plea is involuntarily induced if it is shown

that: (1) the trial court volunteered an admonishment that included information on the availability

of community supervision, thereby creating an affirmative duty to provide accurate information

on the availability of community supervision; (2) the trial court provided inaccurate information

on the availability of community supervision, thereby leaving the defendant unaware of the

consequences of the guilty plea; and (3) the defendant made an objective showing of being misled




3
    Article 42.12, Section 2(2) provides:

            “Community supervision” means the placement of a defendant by a court under a continuum of
            programs and sanctions, with conditions imposed by the court for a specified period during which:

            (A)      criminal proceedings are deferred without an adjudication of guilt; or

            (B)       a sentence of imprisonment or confinement, imprisonment and fine, or confinement and
            fine, is probated and the imposition of sentence is suspended in whole or in part.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2) (West Supp. 2014).
                                                             4
or harmed by the inaccurate admonishment. Williams, 704 S.W.2d at 776–77; Tabora v. State, 14

S.W.3d 332, 334 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

       When an admonishment error is claimed under Article 26.13(a), the claim is not

constitutional, because those admonishments are not constitutionally required. The purpose of

Article 26.13(a) admonishments is to assist the trial court in ensuring that the guilty plea is

knowingly and voluntarily entered. Thus, the claimed error is subject to a harm analysis. TEX. R.

APP. P. 44.2(b); Aguirre-Mata v. State, 992 S.W.2d 495 (Tex. Crim. App. 1999).

       Here, before accepting Gammons’ respective pleas of “guilty” and “true,” the trial court

admonished Gammons as follows:

               THE COURT: In our practice around here, these are what are commonly
       referred to as open pleas; that is, that you would be acknowledging, both verbally
       in front of the Court today and in writing, that you understand what your rights are
       and that you would be giving up certain rights and entering a plea of guilty to the
       indictments without the benefit of a plea of -- without a plea-bargained agreement,
       meaning that if I follow all of this, I would -- well, any number of things.

               I could find that the evidence submitted is sufficient to find you guilty, and
       almost assuredly would at least do that, because if you plead guilty in anticipation
       of what we believe and these paperwork -- these documents contain what are called
       judicial confessions, that’s sufficient for me to find you guilty.

               I could find that it’s in the best interest of society and you and defer further
       proceedings without actually finding you guilty and place you on community
       supervision. We commonly call that a deferred adjudication probation. I could
       find you guilty, sentence you to some period of imprisonment of 10 years or less
       but then suspend the imposition of that sentence and place you on probation. The
       rules of probation would be the same as they are for deferred.

               Or I could find you guilty and sentence you to some term of imprisonment
       for 25 to life, if I follow all that they do here, meaning when I said 10 or less, that
       would be assuming that I did not go forward with the enhanced punishment range
       that the State seeks.

                                                  5
       You have been indicted for possession -- possession with intent to deliver 4
grams or more but less than 200. That is the same as delivery, and it is a first-
degree felony. I want to make sure everybody is listening and I’m getting this right.
[…]
       Possession -- possession with intent to deliver methamphetamine, 4 grams
or more but less than 200, possession of that is a second-degree felony. Possession
with intent to deliver is a first-degree felony. I’m going to get into some
enhancement paragraphs here in just a moment. That’s the first numbered
paragraph ending in 872.

         The case ending in 873 is a tampering with physical evidence case. That by
itself is a third-degree felony unenhanced. And then the case number ending in
874, which there’s some discussion here, it, too, is a possession with intent to
deliver methamphetamine, 4 grams or more but less than 200 grams, alleged to have
occurred on or about the same date as the one two indictments before it.

       But both of those unenhanced would be first-degree felonies.

       ....

       The State had -- has long since, as I think in previous pretrials, I’ve been
made aware, indicated verbally to [Defense Counsel] that the State would be
intending to seek a -- an enhancement of the applicable punishment ranges to that
of what we refer to as the habitual -- Penal Code does, too -- habitual-felon statute,
meaning that if they can prove, in addition to the alleged offenses, that before the
commission of those offenses you had been twice convicted of non-state-jail-felony
offenses, that they were done consecutive to one another; that is, this scenario. You
get convicted, you go to the penitentiary; you get out, commit a new offense, get
convicted, go to the penitentiary. They can’t be the same pen trip. Two separate
pen trips, and they do have to result in pen trips, not successfully completed
probated sentences.

         If the State can prove all that, then it would, in fact, enhance the punishment
range to 25 to life. If the State could prove only one of those convictions and pen
trip, it would bump it up. The first-degrees would be bumped up where the
minimum term of confinement would go to 15 instead of 5, and -- and then the
third-degree would become a second-degree.

       You understand all that, right, Mr. Gammons?

       [Defendant]: Yes.

                                           6
               THE COURT: I thought you did.

After the court explained to Gammons the charges he faced and the available punishment ranges,

Gammons entered a plea of guilty to each of the three individual charges as well as a plea of true

to the enhancements alleged by the State. The trial court then reiterated its warnings regarding the

consequences of pleading true to the enhancements:

              THE COURT: Okay. You’re -- so essentially you’re pleading true to those
       two enhancement paragraphs which would apply in each of the three cases, correct,
       understanding, of course, that if the Court finds that true and then finds you guilty,
       that would subject you to a punishment range of no less than 25 years nor more
       than 99 years or a term of life in the penitentiary. You understand that?

               [Defendant]: Yes, sir.

Based on Gammons’ pleas and the signed plea documents, including a judicial confession, the trial

court found that “the evidence submitted today is sufficient for me to find you guilty in each case

and enhance you accordingly in each case.”

       Here, Gammons cannot demonstrate that his plea was involuntary. Under Article 26.13,

the trial court admonished Gammons that he could be sentenced to ten years or less and receive

community supervision or deferred adjudication. Written admonishments further describing the

specific ranges of punishment were signed by Gammons. We find this sufficient to present a prima

facie showing that the guilty plea was made knowingly and voluntarily in accordance with Article

26.13. Martinez, 981 S.W.2d at 197.

       Gammons now bears the burden of lack of voluntariness. He seeks to fulfill his burden by

complaining that he relied on community supervision being an available remedy when he “rejected

a plea bargain offer of twenty-five years confinement” in order to attempt to pursue a sentence of

                                                 7
community supervision where he “failed to recognize the distinction between” the available

remedy of deferred adjudication community supervision and the unavailable remedy of “straight

probation.”

       While the trial court volunteered an admonishment regarding community supervision,

Gammons must show that the court’s information on the availability of community supervision

was inaccurate. See Williams, 704 S.W.2d at 776. The trial court informed Gammons that it could

place him on deferred adjudication community supervision and “defer further proceedings without

actually finding [him] guilty,” or possibly sentence him to “10 years or less but then suspend the

imposition of that sentence and place [him] on [community supervision] . . . assuming that [the

court] did not go forward with the enhanced punishment range that the State seeks.” Before

Gammons entered his pleas, the court warned him that, if the State proved the two enhancements,

it would “enhance the punishment range to 25 to life.” Gammons said he understood and pled

guilty to the charges and true to the enhancements. The court again warned him that, if it found

him guilty, his pleas of true “would subject [him] to a punishment range of no less than 25 years.”

Given these facts, the court’s admonishments adequately explained the difference between

deferred adjudication community supervision and regular community supervision and made clear

that receiving community supervision was conditioned on the court’s findings regarding the

enhancement allegations. Further, despite pleading true to the enhancement allegations, Gammons

was still eligible for deferred adjudication community supervision, and, on appeal, Gammons twice

argues that he rejected a plea bargain offer “in order to attempt to obtain deferred [community

supervision].”

                                                8
        After reviewing the totality of the circumstances in this case, we conclude that Gammons

has failed to show that his pleas were involuntary or unknowing. Therefore, we overrule this point

of error.

(2)     No Error Was Preserved Regarding any Knowledge of the Trial Judge Regarding any
        Enhancement Allegation

        Gammons also argues that the trial judge should have recused himself because he had

personal knowledge of disputed facts relating to the enhancement allegations in this case.

        Under Rule 18b(b) of the Texas Rules of Civil Procedure,

        A trial judge must recuse in any proceeding in which:

               ....

        (3)    the judge has personal knowledge of disputed evidentiary facts concerning
        the proceeding;

               ....

        (5)     the judge participated as counsel, adviser, or material witness in the matter
        in controversy, or expressed an opinion concerning the merits of it, while acting as
        an attorney in government service;

        After the plea hearing, but before the adjudication of guilt and sentencing, the trial judge,

the Honorable Eddie Northcutt, discovered that he had previously represented Gammons in a

criminal matter in Rains County, Texas, and he dutifully informed the parties. The judge stated

that, while Gammons’ Rains County case was pending, he was incarcerated due to charges in “Van

Zandt or Kaufman, but it was one of the two counties.” In the Rains County matter, Gammons

“pled guilty to the offense in exchange for a five-year sentence which ran concurrently with



                                                  9
whatever [sentence] [he] had.” The judge asked if either the State or Gammons had an objection

to him hearing the case, and both replied, “No objection.”

         Gammons contends that the trial judge should have recused under Rule 18b(b)(3) and (5)

because the judge had direct, personal knowledge that Gammons had served at least one sentence

in the penitentiary and that at least one of the alleged enhancement paragraphs was true. “The

parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record.”

TEX. R. CIV. P. 18b(e). Here, Judge Northcutt fully disclosed the circumstances of his prior

representation of Gammons, and Gammons stated that he had no objection to the judge continuing

to preside over his case. By failing to file a motion to recuse and stating that he had no objection,

Gammons waived this issue. See TEX. R. CIV. P. 18b(e).

(3)      The Trial Judge Did Not Serve as Gammons’ Counsel Regarding Either Offense Used for
         Enhancement in this Case

         Gammons further contends that the trial judge was disqualified from presiding over his

case.4 See TEX. CONST. art. V, § 11. Specifically, Gammons claims that Judge Northcutt served

as his counsel in the Rains County case, a related criminal proceeding relevant to the case for

which he appeared before the court, and therefore, the judge was disqualified and his conviction

and sentence should be reversed and remanded.5


4
 Disqualification under Article V, Section 11 of the Texas Constitution may be raised at any time. Johnson v. State,
869 S.W.2d 347, 348–49 (Tex. Crim. App. 1994). Although the Court of Criminal Appeals has questioned whether a
preservation requirement should be imposed, it has not yet overruled the “line of cases holding that a judge’s
disqualification may be raised for the first time on appeal.” Lackey v. State, 364 S.W.3d 837, 842–43 n.19 (Tex. Crim.
App. 2012).
5
 A disqualified judge may perform a ministerial act, but “is prohibited from performing any and all acts that call for
the exercise of judicial discretion.” Koll v. State, 157 S.W.2d 377, 379 (Tex. 1941) (concluding disqualified judge’s
order transferring venue was void). Thus any discretionary orders or judgments by a disqualified judge are void. See
Whitehead v. State, 273 S.W.3d 285, 289 (Tex. Crim. App. 2008) (if trial judge disqualified under Article 30.01 of
                                                         10
         “Since Texas became a state in 1845, judicial disqualification has always been a matter of

constitutional dimension.” Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 551 (Tex.

2006).

         No judge shall sit in any case wherein the judge may be interested, or where either
         of the parties may be connected with the judge, either by affinity or consanguinity,
         within such a degree as may be prescribed by law, or when the judge shall have
         been counsel in the case.

TEX. CONST. art. V, § 11.

         No judge or justice of the peace shall sit in any case where he may be the party
         injured, or where he has been of counsel for the State or the accused, or where the
         accused or the party injured may be connected with him by consanguinity or affinity
         within the third degree, as determined under Chapter 573, Government Code.

TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 2006).6

         There is no contention in the brief that the trial judge was interested in the outcome or

related to the parties in this case. Gammons confusingly argues that Judge Northcutt participated

in a portion of the matter in controversy because the five-year sentence Gammons served for the

Rains County conviction “was one of the alleged enhancement paragraphs in the instant case.”

While the Rains County five-year sentence was served concurrently with the sentence Gammons




Texas Code of Criminal Procedure, conviction is nullity). Therefore, if Judge Northcutt was disqualified from
Gammons’ case, the acceptance of Gammons’ pleas, the adjudication of his guilt, and the court’s sentence would be
void, and this case would be remanded for new proceedings.
6
 Rule 18b(a) of the Texas Rules of Civil Procedure and Article 30.01 of the Texas Code of Criminal Procedure clarify
when a judge is disqualified, but these statutes “expound rather than expand the Constitution.” Tesco Am., Inc., 221
S.W.3d at 553. Therefore, regardless of whether disqualification is discussed in terms of Rule 18b(a) or Article 30.01,
disqualification is a constitutional issue in this case. See id.; see also Kilgarlin & Bruch, Disqualification and Recusal
of Judges, 17 ST. MARY’S L.J. 599, 602 (1986) (discussing “constitutional statutory provisions” that embody Article
V, Section 11 of Texas Constitution).
                                                           11
was serving at the time, the State’s enhancement allegations involved convictions in only Kaufman

and Van Zandt Counties.

       “It has been held . . . that to come within the meaning of ‘counsel in the case’ in the statute

prescribing qualifications of judges, it must appear that the judge acted as counsel [i]n the very

case before him.” Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970); see Madden

v. State, 911 S.W.2d 236, 240 (Tex. App.—Waco 1995, pet. ref’d) (citing Gamez v. State, 737

S.W.2d 315, 318 (Tex. Crim. App. 1987)). “A judge is not disqualified simply because he has

prosecuted or defended the accused in past cases.” Kuykendall v. State, 335 S.W.3d 429, 432 (Tex.

App.—Beaumont 2011, pet. ref’d). In support of this determination, the Kuykendall court relied

on Hathorne, in which the Texas Court of Criminal Appeals wrote:

       If the State or defense offers prior convictions as part of that “record” where the
       trial judge served as prosecutor or defense counsel, does this result in an automatic
       disqualification of the judge and cause a mistrial? Certainly not, even though
       evidence of such conviction may, in the discretion of the judge or jury, result in an
       increased or enhanced penalty.

Hathorne, 459 S.W.2d at 830. Gammons contends that Hathorne should be applied differently

depending on whether the presiding judge represented the defendant as counsel for the State or the

defense. However, Hathorne’s holding states,

       We hold that the mere inclusion in the indictment or information of allegations as
       to prior convictions (for the enhancement of punishment only) does not disqualify
       the trial judge because he was of counsel in such prior conviction or convictions for
       either the State or the defense, not being within the purview of the statutory or
       constitutional prohibition of being “counsel in the case.”

               ....

       To hold otherwise would mean that a judge is not disqualified in a case by the fact
       he previously prosecuted or defended an accused in another case, or that such prior
                                                 12
        conviction was used for impeachment purposes or used as a part of the accused’s
        “prior criminal record” but the mere allegation of such conviction for the purpose
        of enhancement only would work an automatic disqualification. Such would be an
        illogical result, particularly considering the nature and purpose of the allegation of
        the prior conviction, it not being a part of the substantive offense, and taking into
        account our present bifurcated trial system. To permit the disqualification to be too
        easy could cause the cost and the delay of the administration of criminal justice to
        go out of bounds.

Id. at 833.

        Here, Judge Northcutt was not statutorily or constitutionally disqualified. His service as

Gammons’ counsel in the Rains County case did not come within the meaning of “counsel in the

case” as used in the Texas Constitution, in Article 30.01 of the Texas Code of Criminal Procedure,

or by Texas courts. We overrule this point of error.

        We affirm the trial court’s judgment.



                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:        July 8, 2015
Date Decided:          August 11, 2015

Do Not Publish




                                                 13
