             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00035-CR
     ___________________________

         JESSE SMITH, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 431st District Court
          Denton County, Texas
      Trial Court No. F17-1278-431


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      In two issues, Jesse Smith appeals his conviction for violation of a protective

order. First, he brings a facial constitutional challenge to the statute under which the

protective order was issued. We hold that Smith has not carried his heavy burden to

show the enabling statute operates unconstitutionally in every circumstance.

      Second, Smith contends that his motion to recuse the trial judge should have

been granted. Smith’s case for recusal rests entirely on the trial judge’s harsh comments.

We hold that these remarks do not rise to a level that requires recusal. We therefore

affirm.

                                 I.     BACKGROUND

      On October 14, 2016, police were dispatched to address a report of family

violence at Smith’s apartment. Smith’s wife told police that he had hit her in the legs,

arms, and stomach with a baseball bat. Smith was not at the scene, so police collected

evidence and eventually left.

      On November 5, 2016, police arrested Smith for aggravated assault. A municipal

judge issued an emergency protective order the following morning. Among other

things, the order forbade Smith from committing family violence against Wife and from

going within 1,000 feet of Wife’s residence, which, of course, was also Smith’s residence.

      The order was still active on November 19, 2016, when Wife’s ex-husband came

to check on her. Her ex-husband heard screaming from within Smith’s apartment, so

he called 911.

                                            2
      When an officer was dispatched to the apartment, he heard a female voice scream

for help. The officer broke a window and gained entry into the apartment, where he

found Wife bloodied and tied to the couple’s bed, with Smith tightening her restraints.

As relevant to this appeal, Smith was eventually charged with violation of a protective

order, with an enhancement for a prior felony conviction. 1

      At trial, Wife testified that on November 19, 2016, she had responded to a knock

at the door. Wife testified that as soon as she opened the door, Smith pushed his way

in, threw her onto the floor, and began punching and kicking her. According to Wife,

Smith told her that by calling the police, she had ruined his life, so he was going to take

her life in return. By Wife’s account, Smith then tied her to the bed and began cutting

her with a knife while taunting her.

      After the close of the evidence, the jury found Smith guilty of violating a

protective order, and Smith elected to have punishment tried to the bench. Smith

pleaded true to the enhancement paragraph. The trial judge assessed punishment at

twenty years for the offense in question. Smith appeals.

          II.   CONSTITUTIONALITY OF THE PROTECTIVE ORDER STATUTE

      In his first issue, Smith brings a facial challenge to the constitutionality of the

statute under which the emergency protective order was issued: Article 17.292 of the

Texas Code of Criminal Procedure. Smith asserts that because a protective order issued


      1
       Smith was also charged with and convicted of two offenses of aggravated assault
with a deadly weapon, but those convictions are at issue in separate appeals.

                                            3
under Article 17.292 may temporarily prevent some arrestees from returning to their

homes, without notice or an opportunity for hearing, the article runs afoul of due

process 2 and Texas homestead protections.

      Article 17.292 provides that when a person is arrested for certain offenses such

as family violence, sexual assault, or stalking, a magistrate may issue an emergency

protective order to safeguard the victim of the offense and the victim’s family. Tex.

Code Crim. Proc. Ann. art. 17.292(a). When, as here, the arrest is for family violence

involving the use of a deadly weapon, the magistrate “shall” issue an emergency

protective order remaining “in effect up to the 91st day but not less than 61 days after

the date of issuance.” Id. art. 17.292(b)(2), (j). The statute makes no allowance for

notice and hearing before the protective order is issued.          The magistrate may

incorporate a number of restrictions within the order. Id. art. 17.292(c). As relevant




      2
        In the trial court, Smith argued that the statute does not comport with “due
process,” a reference to the Due Process Clause of the United States Constitution. See
U.S. Const. amend. XIV, § 1. On appeal, however, Smith has instead cited the due
course of law provision of the Texas constitution—a matter he did not preserve in the
trial court. See Tex. Const art. I, § 19. Smith has not suggested that there should be any
“meaningful distinction” between these provisions as they pertain to the issues in this
case. See Fleming v. State, 376 S.W.3d 854, 858 (Tex. App.—Fort Worth 2012) (quoting
Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)), aff’d, 455
S.W.3d 577 (Tex. Crim. App. 2014). Because his due course of law argument would
not be preserved for our review, see Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009), we will give Smith the benefit of the procedural doubt and construe his claim
solely as a due process challenge. See Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim.
App. 2006) (upholding the vitality of unassigned-error review).

                                            4
here, the magistrate “may” prohibit the arrestee from “going to or near the residence . . .

of the person protected under the order.” Id. art. 17.292(c)(3)(A).

       Smith observes that when the arrestee lives with the victim, a protective order

prohibiting the arrestee from going near the victim’s residence may temporarily prevent

an arrestee from returning to his own home. According to Smith, the statute thus

interferes with an arrestee’s homestead rights under the Texas constitution.

       The State responds that the homestead provisions of the Texas constitution

protect property from forced sale “for the payment of . . . debts,” and these provisions

are therefore irrelevant here. Tex. Const. art. XVI, § 50(a). We agree that the scenario

advanced by Smith has nothing to do with a forced sale for debts. Thus, homestead

protections have no bearing.

       Smith next argues that the enabling statute violates due process because an

emergency protective order may deprive an arrestee of access to his residence without

notice or the opportunity for a hearing before the deprivation occurs. Smith submits

that the statute is therefore facially unconstitutional.

       “An essential principle of due process is that a deprivation of life, liberty, or

property be preceded by notice and opportunity for hearing appropriate to the nature

of the case.” Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S. Ct. 2633, 2648 (2004) (plurality

op.) (cleaned up) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105

S. Ct. 1487, 1493 (1985)). In “rare and extraordinary situations,” deprivation of a

protected interest need not be preceded by opportunity for some sort of hearing, and a

                                             5
postdeprivation hearing will satisfy due process requirements. Greene v. Greenwood Pub.

Sch. Dist., 890 F.3d 240, 243 n.2 (5th Cir. 2018) (quoting Loudermill, 470 U.S. at 542 n.7,

105 S. Ct. at 1493 n.7; Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 n.7, 92 S. Ct.

2701, 2705 n.7 (1972)); see Bell v. Burson, 402 U.S. 535, 542, 91 S. Ct. 1586, 1591 (1971)

(similar as to “emergency situations”); see also Polley v. State, No. 11-03-00340-CR, 2004

WL 2964785, at *2 (Tex. App.—Eastland Dec. 16, 2004, pet. ref’d) (not designated for

publication) (concluding that a different protective order statute satisfied due process

because it afforded the respondent notice and hearing before the issuance of the

protective order).

       Is an arrest for one of the offenses described by Article 17.292 the sort of

extraordinary emergency that justifies a departure from the default rule of due process,

which requires notice and an opportunity for hearing before the deprivation occurs?

At least one Texas court has answered that question in the affirmative. See Ex parte

Flores, 130 S.W.3d 100, 107 (Tex. App.—El Paso 2003, pet. ref’d). The Flores court

concluded that Article 17.292 passed constitutional muster because of “the temporary

and emergency nature” of the orders it provides. Id. The court further reasoned that

the need for prompt assumption of judicial control following a family violence arrest

outweighed the need to minimize risk of error through adversary procedures. Id.

       We need not express any opinion on whether Flores was correctly decided.

Rather, we will assume for the sake of argument that when an emergency protective

order, without notice and opportunity for hearing, deprives a defendant of the ability

                                               6
to enter his home, this would violate due process.           Even operating under this

assumption, Smith has not met his burden to demonstrate that the statute is facially

unconstitutional.

       Whether a statute is facially constitutional is a question of law that we review

de novo.    Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).              When the

constitutionality of a statute is attacked, we usually begin with the presumption that the

statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at

14–15. Generally, a facial challenge to the constitutionality of a statute can succeed only

when it is shown that the law is unconstitutional in all its applications. State v. Johnson,

475 S.W.3d 860, 864 (Tex. Crim. App. 2015). “A facial challenge to a statute is the most

difficult challenge to mount successfully because the challenger must establish that no

set of circumstances exists under which the statute will be valid.” Ex parte Shires, 508

S.W.3d 856, 863 (Tex. App.—Fort Worth 2016, no pet.) (quoting Santikos v. State, 836

S.W.2d 631, 633 (Tex. Crim. App. 1992) (op. on reh’g)).

       Smith argues that the constitutional infirmity lies in circumstances where an

emergency protective order would temporarily prevent an arrestee from returning

home. But several applications of Article 17.292 would not result in this problem. For

one, when the trial court issues an emergency protective order, the statute does not

require the trial court to preclude the arrestee from going near the victim’s home.

Rather, the statute simply provides that the trial court “may prohibit the arrested party

from . . . going to or near the residence . . . of the person protected under the order.”

                                             7
Tex. Code Crim. Proc. Ann. art. 17.292(c) (emphasis added). The word “may” is a

permissive term, and thus a restriction on approaching the victim’s residence is just one

of many measures that the trial court might, in its discretion, include or exclude as the

situation demands. See Fienen v. State, 390 S.W.3d 328, 332 (Tex. Crim. App. 2012).

Even if the arrestee lives with the victim, then, the issuance of an emergency protective

order will not necessarily preclude an arrestee from returning to his residence in every

circumstance.

      For another, when the trial court does include such a restriction in its protective

order, this will not always result in the arrestee’s exclusion from his home, because not

every arrestee lives with his victim. Article 17.292 makes an emergency protective order

available when a defendant is arrested for trafficking of persons, continuous trafficking

of persons, sexual assault, indecent assault, aggravated sexual assault, and stalking. Tex.

Code Crim. Proc. Ann. art. 17.292(a). These offenses could be, and often are,

committed against victims who are not cohabitants with the arrestees.

       The same holds true if we were to limit our consideration to arrests for family

violence, because while in many cases a family violence victim does live with the

offender, there is nothing in the definition of family violence that strictly requires the

offender to cohabitate with the victim. See Tex. Fam. Code Ann. § 71.004. If the

arrestee assaulted a victim with whom he had a dating relationship, for instance, the

definition of family violence would be satisfied even if the arrestee did not live with the

victim. See id. §§ 71.0021(a), 71.004(3). Thus, even within this narrower purview, not

                                            8
every emergency protective order would deprive an arrestee of access to his home. See

Peraza v. State, 467 S.W.3d 508, 520–21 (Tex. Crim. App. 2015) (concluding that even

when narrowly focusing on a segment of a statute that ran a greater risk of

unconstitutionality, the statute was nonetheless safe from facial challenge because some

potential applications of that segment were constitutional).

       Many if not most applications of the statute would not result in the problem of

which Smith complains. See Johnson, 475 S.W.3d at 864. Smith has not argued that due

process might be offended in circumstances when the arrestee is not dispossessed of

his home, see Shires, 508 S.W.3d at 863, and we are under no obligation to construct

such an argument for him. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App.

2011). We therefore conclude that Smith has failed to overcome the presumption that

Article 17.292 is constitutionally sound. See Lo, 424 S.W.3d at 14–15. We overrule

Smith’s first issue.

                                   III.   RECUSAL

       In his second issue, Smith contends that the administrative judge abused his

discretion by not recusing the trial judge, Jonathan Bailey. Smith’s attempt to recuse

Judge Bailey from the case stemmed from multiple occasions when Smith protested the

adequacy of his appointed counsel and demanded a new attorney. On two of these

occasions, Judge Bailey actually granted Smith’s motion and appointed new counsel.

Nonetheless, Smith contends that when granting the second of these motions, Judge



                                           9
Bailey made certain hostile remarks that demonstrate his bias and his status as a witness

in a related grievance case.

       Our account begins in July 2017, when Smith filed a motion to dismiss his first

appointed counsel, Derek Adame. Smith alleged that Adame was deficient on several

fronts: failing to provide Smith with important case documents, lying to Smith, and

openly sharing evidence with the prosecution, among other misdeeds. Judge Bailey

heard the motion in August 2017. Smith indicated that he had filed a grievance against

Adame with the State Bar of Texas. Judge Bailey patiently explained that he believed

the motion was “tenuous” but that “out of an abundance of caution and deference to

your request, Mr. Smith, I’m going to give you the benefit of the doubt and I am going

to substitute a new attorney to represent you.” However, Judge Bailey cautioned Smith

that he may not be afforded the same treatment if he subsequently filed another motion

to discharge his second appointed counsel. Smith said he understood. Judge Bailey

appointed a second counsel, J. Edward Niehaus.

       Smith’s trial was set for March 19, 2018. However, four days before trial, Smith

filed a motion to discharge Niehaus. Smith alleged that, like his first counsel, Niehaus

was dishonest, refused to share discovery, and caused Smith to withhold information

for fear that Niehaus would share it with the prosecution. Smith alleged a litany of

other problems as well. He asked for Niehaus to be discharged and for a third counsel

to be appointed.



                                           10
      Judge Bailey heard Smith’s motion on March 19, 2018—the morning trial had

been set to begin. Smith informed the judge that he had filed a grievance against

Niehaus. Judge Bailey reminded Smith that he gave Smith the benefit of the doubt at

an earlier hearing. In the judge’s view, Smith’s untimely motion was “merely a ploy to

delay the trial, because none of this was brought to the Court’s attention at the time of

the pretrial hearing that we just had a couple of weeks ago.” He informed Smith that

based on the court’s file, it appeared that Niehaus “has worked harder than frankly I

have ever seen an attorney work for someone outside of a death penalty case. Your

attorney has provided you, from what I can observe in the court’s record, a Cadillac

level defense.” Judge Bailey asked Smith whether there were any specific acts or

omissions that justified a grievance against Niehaus.

      Smith’s complaints were manifold, but for each complaint, Niehaus offered a

thorough response. For example, Smith testified that he had wanted to develop

evidence about how an investigating officer had falsified his report. In response,

Niehaus explained that he had looked into the matter extensively and reviewed over

200 pages of Brady materials concerning the officer, but he had found nothing relevant.

At another point, Smith testified that Niehaus had failed to timely allow him to review

discovery in the case. Niehaus disputed this as well, stating that he had spent twenty-

four hours at the jail with Smith and given him close to 2,500 pages of discovery to

review.   As support, Niehaus offered into evidence his billing records, which



                                           11
documented 168.51 hours of work on the case, including many notations concerning

jail visits in which Niehaus reviewed the evidence and trial strategy with Smith.

      After hearing the complaints and responses, Judge Bailey declared that Smith

was mistaken to believe that Niehaus had done anything to deserve a grievance or

motion to discharge:

      THE COURT: . . . And it seems to me that your ignorance of the law
      and your ignorance of procedure is what is causing half of the problems
      between you and counsel. Instead of trusting a good attorney to do their
      job for you, you are simply second guessing them, second guessing them
      based on your own ignorance.
      So what else? So far you have told me zero that would provide a good
      faith basis to file a grievance against counsel, much less to discharge him
      or continue your trial.
Judge Bailey expressed his “irritation” that Smith had not raised any of his complaints

at the pretrial hearing. The judge then made the comments about which Smith

complains on appeal:

      THE COURT: . . . So my question to you is, are you ready to represent
      yourself?
      THE DEFENDANT: I would not want to—
      THE COURT: Because I wouldn’t want to waste any more of our tax
      dollars on an attorney when all you’re gonna do is pick a fight with them
      and make complaints about them and thwart the entire process.
      THE DEFENDANT: No, sir, I do not want to represent myself. And
      if I were to get an attorney, I would know, if there was a disagreement, to
      work on it immediately instead of hoping that things were going to change.
      THE COURT: Well, there better not be a disagreement. Because at some
      point, if there’s a problem between you and counsel, and that problem
      persists with a second or a third lawyer, at some point it’s simply clear that


                                           12
      the problem isn’t with the lawyer, the problem is with you. And, frankly,
      based on what you have told me, the problem here is with you. It is not
      with your attorney. Your ignorance and failure to trust your attorney’s
      guidance is the problem here. And, yes, it irritates the hell out of me.
      We will be selecting a new trial date. I’ll be appointing a new attorney to
      represent you. You will get that information this morning before you’re
      sent back over to the jail. Your trial is cancelled because we cannot
      proceed at this point based upon your filing of a grievance. I am ordering
      you not to file any further grievances against any further attorneys without
      this Court’s permission. You are enjoined from filing any grievances with
      any other entity without this Court’s permission.
      So in the future, if you care to make a complaint about an attorney
      representing you, you are to submit that complaint to this Court for this
      Court to make a prima facie threshold determination of whether or not
      you should be permitted to file that complaint with the State Bar or any
      other entity, because it seems to me that you are doing nothing but
      standing in the way of the process. You’re engaging in gamesmanship to
      simply delay your trial, and I’m not gonna tolerate it. Go with the sheriff.
      (Defendant excused.)
      THE COURT: Mr. Niehaus, you’re dismissed. I’m happy to not only
      provide you the record if you need this relative to defending the grievance,
      but to the extent this Court needs to make any findings, formally or
      informally, simply extending my opinions on your behalf, please don’t
      hesitate to ask.
Judge Bailey then appointed Heather Fisher to represent Smith.
      Smith filed a pro se motion to recuse Judge Bailey based on his comments at the

March 2018 hearing. The motion to recuse was referred to the presiding administrative

judge, who denied the motion.

      Later, Smith also made multiple attempts to discharge Fisher and have a fourth

counsel appointed. Judge Bailey denied the requests and explained that Smith’s only

choices were to represent himself or to proceed with Fisher. After extensive back and


                                          13
forth, Smith ultimately decided that he wanted Fisher to represent him. Smith then

went to trial with Fisher and was convicted.

      On appeal, Smith advances two theories as to why his motion to recuse should

have been granted. First, he argues that when Judge Bailey offered to make findings in

favor of Niehaus for purposes of defending the grievance, Judge Bailey effectively

became a fact witness for Niehaus in regard to the grievance proceeding. Second, Smith

asserts that Judge Bailey’s antagonistic comments at the March 2018 hearing reveal his

bias against Smith. Smith asserts that the judge’s bias and status as a witness should

have rightfully prevented him from presiding over the case.

      We review an order denying a motion to recuse under an abuse of discretion

standard. Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011). We will not reverse

a ruling that falls within the zone of reasonable disagreement. Id. A Texas judge may

be removed from presiding over a case for one of three reasons: he is constitutionally

disqualified, he is subject to a statutory strike, or he is subject to statutory

disqualification or recusal under Texas Supreme Court rules. Id. at 452. Rule 18b(b) of

the Texas Rules of Civil Procedure sets out the applicable law concerning recusal and

includes instances in which a judge must step down from hearing a case for reasons

other than the disqualifying grounds listed in the constitution. Id. at 453.

      Under Rule 18b, one ground for recusal occurs when the judge has been a

material witness concerning the proceeding. Tex. R. Civ. P. 18b(b)(4). Smith submits

that Judge Bailey should have been recused because he became a material witness when

                                           14
he offered to render findings in favor of Niehaus. To be clear, though, Smith has not

asserted that Judge Bailey actually rendered findings, let alone testified.         Rather,

according to Smith, the offer to render findings is enough to qualify the judge as a

material witness and require recusal. For two reasons, we disagree.

       First, rendering judicial findings is far different than giving testimony. To

“testify” means to give evidence as a witness. Nzewi v. State, 359 S.W.3d 829, 842 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d). A “finding” is a decision upon a question

of fact reached as the result of a judicial examination or investigation by a court or jury.

Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985); see Finding of Fact, Black’s Law

Dictionary (11th ed. 2019) (“A determination by a judge, jury, or administrative agency

of a fact supported by the evidence in the record . . . .”). Thus, one is the act of giving

evidence, upon which a judicial determination might rest; the other is the judicial

determination itself. We therefore fail to see how rendering findings could qualify Judge

Bailey as a material witness. And an offer to render findings is yet another step removed

from what Smith must prove in order to recuse Judge Bailey as a witness.

       Second, even assuming arguendo that Judge Bailey served as a material witness at

a grievance proceeding against Smith’s counsel, this is not the sort of fact that demands

recusal by necessity and in every case. Rule 18b provides for recusal when a judge has

been a material witness concerning “the proceeding,” presumably meaning that recusal

is required when the judge is a witness in the same proceeding over which he would

otherwise preside. Tex. R. Civ. P. 18b(b)(4). But a grievance case would have been a

                                            15
different proceeding than the criminal trial over which Judge Bailey presided. See

Sommers v. Concepcion, 20 S.W.3d 27, 42 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied) (concluding that a judge’s recusal from a suit was not required simply because

he testified in a separate grievance proceeding). Many risks justify recusal when a judge

proposes to testify in the same case over which he is presiding, but those risks are not

present when the judge testifies in a different proceeding before another tribunal:

      A judge may assume the witness chair like anyone else, but he does not so
      easily lay aside robe and gavel. His testimony may appear to be more than
      mere opinion and may be mistaken for a judicial pronouncement.
      Moreover, when a judge testifies as a witness, a lawyer who regularly
      appears before the judge may be placed in the awkward position of cross-
      examining the judge. That is, the relationship that develops between a
      judge and the lawyer who cross-examines him may influence the judge’s
      conduct or judgment in other cases in which the attorney must appear
      before the judge.
      Not only are jurors likely to be influenced in their decision by the
      testimony of a judge on one party’s behalf, they will see a judge appearing
      to take sides. The entrance of a judge into the litigation arena in aid of a
      combatant impacts not only the outcome of that conflict but the very idea
      of judicial impartiality.
Id. at 42–43 (cleaned up) (quoting Joachim v. Chambers, 815 S.W.2d 234, 237–39 (Tex.

1991) (orig. proceeding)). The textual and policy reasons for recusal are absent when a

judge testifies in a grievance proceeding before another tribunal. We therefore hold

that Judge Bailey’s offer to render findings did not require recusal, even supposing that

such an offer could qualify him as a material witness in a grievance proceeding.




                                           16
      Next, we consider Smith’s argument that Judge Bailey’s annoyed remarks at the

March 2018 hearing demonstrate bias against Smith. Again, during the hearing, Judge

Bailey variously referred to his “irritation” that Smith had not raised any of his concerns

until just days before trial, his view that the motion was “gamesmanship” and a “ploy”

to delay trial, his frustration that the motion was founded on “ignorance” about the

quality of the representation, and his concern that appointing another counsel to

represent Smith would be a “waste” of “tax dollars” because Smith would simply pick

a fight with the third appointed counsel as well. Smith argues that these remarks reveal

a lack of impartiality, to the point that Judge Bailey was very nearly “adversarial.”

      A judge must recuse if he has a personal bias or prejudice concerning a party.

Tex. R. Civ. P. 18b(b)(2). Generally, recusal is not required when based solely on

judicial rulings, remarks, or actions. Gaal, 332 S.W.3d at 454. An intemperate judicial

remark

      can only in the rarest circumstances evidence the degree of favoritism or
      antagonism required when no extrajudicial source is involved. . . . Thus,
      a judge’s remarks during trial that are critical, disapproving, or hostile to
      counsel, the parties, or their cases, usually will not support a bias or
      partiality challenge, although they may do so if they reveal an opinion based
      on extrajudicial information, and they will require recusal if they reveal
      such a high degree of favoritism or antagonism as to make fair judgment
      impossible. On the other hand, expressions of impatience, dissatisfaction,
      annoyance, and even anger, that are within the bounds of what imperfect
      men and women may display, do not establish bias or partiality.

Id. (cleaned up) (quoting Liteky, 510 U.S. at 555–56, 114 S. Ct. at 1157).




                                            17
      Judge Bailey’s comments show significant frustration, but we do not believe that

his annoyance escalated to a level that rendered a fair judgment impossible. See id. Judge

Bailey’s comments arose from developments in the case—Smith’s apparent attempts to

obstruct the process by discharging counsel on the eve of trial—and not from any

extrajudicial source. See Chisholm v. State, No. 08-17-00258-CR, 2019 WL 3001515, at

*2, *5 (Tex. App.—El Paso July 10, 2019, pet. ref’d) (not designated for publication)

(rejecting a recusal appeal because the judge’s frustrated comments—that a defendant

was “manipulating the process” by repeatedly discharging counsel just before

proceedings commenced—arose solely from developments in the case and not from

extrajudicial sources). To an extent, Judge Bailey’s frustration was understandable in

light of Smith’s repeated, untimely, and likely misguided attempts to discharge his court-

appointed attorneys. See Moreno v. State, No. 07-16-00192-CR, 2018 WL 1547264, at *3

(Tex. App.—Amarillo Mar. 29, 2018, no pet.) (mem. op., not designated for

publication) (upholding denial of recusal, in part because trial judge’s extreme reaction

was “understandable” based on the evidence before him). After the motion to recuse

was denied, Judge Bailey proceeded to handle the trial in a seemingly fair and even-

handed fashion. See Wallace v. State, No. 14-09-00378-CR, 2010 WL 2649939, at *3

(Tex. App.—Houston [14th Dist.] July 6, 2010, no pet.) (mem. op., not designated for

publication) (affirming denial of recusal because after a judge’s heated remarks at

punishment, the judge proceeded to handle punishment fairly). And even after alleging

bias, Smith elected to have Judge Bailey assess punishment, which is arguably some

                                           18
indication that he did not believe Judge Bailey was truly biased against him. See Simpson

v. State, No. 01-12-00380-CR, 2014 WL 2767126, at *2 (Tex. App.—Houston [1st Dist.]

June 17, 2014, pet. ref’d) (mem. op. on reh’g, not designated for publication). It would

be within the zone of reasonable disagreement, then, to conclude that Judge Bailey’s

anger shows that he was as imperfect as any other human, but still impartial. See Gaal,

332 S.W.3d at 456.3 We therefore cannot agree that the administrative judge abused his

discretion in denying the motion to recuse. See id.

      We overrule Smith’s second issue.

                                 IV.    CONCLUSION

      We affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 6, 2020




      3
        Briefly, Smith also argues that when Judge Bailey ordered him not to file any
more grievances with the State Bar of Texas, this violated his due process rights. Smith
offers no authority for this proposition. See Tex. R. App. P. 38.1(i). Moreover, Smith
did not raise this argument in the trial court, and he thus gave the trial court no
opportunity to rule on or remedy the supposed error. See Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012). He therefore has not preserved this complaint for our
review. See id. (holding that in absence of timely objection, due process complaint was
not preserved for review).

                                           19
