                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-382-CR


GEORGE GAAL                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                                   OPINION

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         Appellant George Gaal appeals his felony conviction for driving while

intoxicated (DWI).     See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003),

§ 49.09(b)(2) (Vernon Supp. 2009). In one of his four points, he contends that

the trial judge should have been recused. We reverse and remand for a new

trial.
                                Background Facts

         Near midnight on September 23, 2007, Gayle Cook was riding in a pickup

with her husband on Milam Road toward Interstate 35 when she saw a truck

stopped in the middle of the road and saw Gaal on the ground in front of the

truck.    It appeared to Cook that Gaal’s truck had hit a guardrail and was

damaged. Cook approached Gaal to ask him if he was okay, but Gaal was

disoriented and did not appropriately answer Cook’s questions. Cook and her

husband went to a truck stop that was close by and called 911 on Cook’s

cellular phone, but while they were doing so, Gaal began to drive away.

         Cook and her husband followed Gaal, who was driving slowly and was

swerving. Gaal eventually drove into a ditch, but then he drove back onto the

road at a very fast speed before eventually pulling into a parking lot and

stopping his truck. Cook had continued her contact with 911, and a Denton

police officer eventually arrived at the parking lot and approached Gaal’s truck.

The officer noticed that Gaal had slurred speech, that he smelled like alcohol,

and that he had bloodshot eyes. She also saw hydrocodone in Gaal’s truck.

Another Denton police officer arrived at the parking lot and asked Gaal to take

a standardized field sobriety test and two nonstandardized tests, all of which

he failed. The officer arrested Gaal and found an empty bottle of Crown Royal

and two empty beer bottles in his truck.

                                        2
      In December 2007, a Denton County grand jury indicted Gaal for DWI;

the indictment alleged that Gaal had two prior DWI convictions. The parties

filed various pretrial documents; for instance, Gaal filed a motion to recuse the

trial judge based on a comment that he made about Gaal’s potential plea

bargain. 1 The motion to recuse was denied, and Gaal’s trial began in August

2008.     Gaal initially pled not guilty and filed his application for community

supervision. After the jury was selected, Gaal pled guilty.

      The parties presented evidence concerning Gaal’s punishment; Gaal

testified and asked the jury to place him on community supervision. After the

parties presented closing arguments, the jury assessed Gaal’s punishment at ten

years’ confinement. Gaal filed a motion for new trial, but the trial court denied

the motion, and Gaal filed his notice of appeal.

                                     Recusal

      In his fourth point, Gaal contends that the trial judge should have been

recused. We agree.

Standard of review and applicable law

      We apply the rules of civil procedure to review the denial of a motion to

recuse in a criminal case. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim.



      1
     … The details regarding Gall’s motion to recuse and the trial judge’s
comment are included below.

                                        3
App. 2004) (orig. proceeding); Arnold v. State, 853 S.W.2d 543, 544 (Tex.

Crim. App. 1993); see Kniatt v. State, 239 S.W.3d 910, 912–13 (Tex.

App.—Waco 2007, no pet.) (op. on reh’g). In doing so, we review the denial

of a motion to recuse for an abuse of discretion.      Tex. R. Civ. P. 18a(f);

Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000) (plurality op.),

cert. denied, 534 U.S. 944 (2001); Kemp v. State, 846 S.W.2d 289, 306 (Tex.

Crim. App. 1992), cert. denied, 508 U.S. 918 (1993).

      To determine whether the court hearing the motion to recuse abused its

discretion, we must determine whether it acted without any guiding rules or

principles.    Abdygapparova v. State, 243 S.W.3d 191, 197–98 (Tex.

App.—San Antonio 2007, pet. ref’d); Mosley v. State, 141 S.W.3d 816, 834

(Tex. App.—Texarkana 2004, pet. ref’d) (adding that the “mere fact that a trial

court may decide a matter within its discretionary authority in a different

manner than an appellate judge does not demonstrate [an abuse of

discretion]”). In other words, “an appellate court should not reverse a trial

judge whose ruling on the motion was within the zone of reasonable

disagreement.” Kemp, 846 S.W.2d at 306. In reviewing the denial of the

motion, we must consider the totality of the evidence elicited at the recusal

hearing. Id.




                                      4
      A judge shall be recused if, among other reasons, the judge’s “impartiality

might reasonably be questioned” or the judge “has a personal bias or prejudice

concerning the subject matter or a party.” Tex. R. Civ. P. 18b(2). As the court

of criminal appeals has explained,

      A trial judge ruling on a motion alleging bias as a ground for
      disqualification must decide whether the movant has provided facts
      sufficient to establish that a reasonable man, knowing all the
      circumstances involved, would harbor doubts as to the impartiality
      of the trial judge. Bias may be a ground for disqualification only
      when it is shown to be of such nature, and to such extent, as to
      deny the defendant due process of law.

Kemp, 846 S.W.2d at 305 (citations omitted); see Wesbrook, 29 S.W.3d at

121; Rosas v. State, 76 S.W.3d 771, 775 (Tex. App.—Houston [1st Dist.]

2002, no pet.) (applying the reasonable person/due process standard).

Analysis

      According to the State’s attorney’s statements during the hearing on

Gaal’s motion to recuse, in June 2008, Gaal’s original trial counsel had

negotiated a plea bargain of two years’ confinement with the State.

Gaal arrived at a pretrial hearing on June 30 with new counsel even though the

State and the trial judge expected Gaal to plead guilty under the plea bargain

at the hearing. Gaal eventually rejected the plea bargain and chose to not plead




                                       5
guilty, and the State rescinded its plea bargain offer. 2 At that point, the trial

judge said, “All right. We’re supposed to have a plea here today. It appears

that Mr. Gaal does not want to plea. For the record, I will not accept any plea

bargain in this matter, unless it’s for the maximum term of ten years.”

      Gaal filed his motion to recuse on July 3. Gaal’s recusal motion alleged

that the trial judge was biased or prejudiced against him. It also asserted that

the trial judge had denied Gaal due process because the “admonition by the




      2
      … Gaal’s counsel said during the recusal hearing that on June 30, he
was informed that it would be necessary for Gaal

      to plea that day or the offer would be removed off the table.
      Mr. Gaal requested the Court, off the record, to either do a
      bifurcated plea in which he could plea one day and then come back
      and have sentencing the next because he is a business owner and
      would need to place his assets into receivership while he was
      incarcerated. The Court stated that it was not in its wisdom to do
      that. And then after that, a request was made for a few days, and
      that was also denied for the same reasons. And then after that,
      we were called before the Honorable Court to give our
      announcement as to the State’s offer, which Mr. Gaal refused.

            ....

            [W]hen we entered the courtroom, the offer was two years
      on the table, and . . . when [Gaal] stated that he didn’t want to
      plea on that particular day, the offer was removed from the table
      from the State at that time.

The State has not disputed the veracity of these facts as recited by Gaal’s
counsel.

                                        6
Court . . . clearly place[d] the Court in an adverse position to [Gaal].”

On August 1, the judge assigned to hear the recusal motion held a hearing in

which Gaal’s counsel argued in part, “I don’t believe that Mr. Gaal can receive

due process if his presiding judge will not consider the entire range of

punishment . . . .   It removes [Gaal] from seeking to the court relief from

punishment, and leaves [him] one alternative to go to the jury.” The recusal

judge denied Gaal’s motion.

      Due process requires a neutral and detached trial court. See Brumit v.

State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v. State, 109

S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op. on

reh’g). Thus, a trial court denies a defendant due process when it arbitrarily,

without any evidence before it, refuses to consider a portion of the permissible

range of punishment. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App.

2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983),

overruled on other grounds by De Leon, 127 S.W.3d at 5–6; Cole v. State, 931

S.W.2d 578, 579–80 (Tex. App.—Dallas 1995, pet. ref’d). For example, the

Houston (First District) Court of Appeals, relying on McClenan, held that a trial

judge should have been recused when, in response to questioning regarding

whether the judge would accept a plea bargain of deferred adjudication, the

judge said, “No, and if the jury gives her probation, I’ll give her jail time.”

                                       7
Norton v. State, 755 S.W.2d 522, 523–24 (Tex. App.—Houston [1st Dist.]

1988) (italics omitted), pet. ref’d, 771 S.W.2d 560 (Tex. Crim. App. 1989).

Similarly, the Dallas Court of Appeals held that a trial court denied the

defendant due process by failing to consider the entire punishment range when

it told the defendant at a deferred adjudication hearing that it would impose a

twenty-year sentence if probation was revoked and then imposed that sentence

once probation was revoked. Jefferson v. State, 803 S.W.2d 470, 471–73

(Tex. App.—Dallas 1991, pet. ref’d).

      Like the decisions in Norton and Jefferson, we conclude that under the

facts of this case, the trial judge’s comment that he would only consider a plea

bargain for the maximum punishment forecasted his inability to consider the full

punishment range and denied Gaal due process; therefore, we hold that the

recusal judge abused his discretion by denying Gall’s motion to recuse. In so

holding, we recognize that a trial judge is not required to accept any particular

plea bargain or even to allow parties to engage in the plea bargain process.

State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 8–9 (Tex. Crim. App. 1983)

(orig. proceeding); Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App.

[Panel Op.] 1978). Thus, we certainly do not hold that a trial judge should be

recused merely for rejecting a particular plea bargain or limiting the plea bargain

process.

                                        8
      However, we conclude that the trial judge in the limited circumstances of

this case exceeded his general authority to reject plea bargains.       Here, the

record indicates that the trial judge had allowed the plea bargain process to

proceed and had initially considered approving a plea bargain for the minimum

term of confinement but then reacted to Gaal’s decision not to plead guilty by

arbitrarily foreclosing the possibility of any plea bargain other than one for the

maximum punishment, even though there was no particular plea bargain

presented for the judge’s consideration at that time. 3      This was improper

because “[t]he only proper role of the trial court in the plea-bargain process is

advising the defendant whether it will ‘follow or reject’ the bargain between the

[S]tate and the defendant.” Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim.

App. 2009); see Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp.




      3
       … There is no indication that the trial judge’s statement that he would
consider only the maximum punishment in a plea bargain was caused by
anything other than Gaal’s rejection of the State’s plea bargain—such the trial
judge’s consideration of facts about the case that warranted a higher
punishment compared to other cases, Gaal’s conduct while out of confinement
on bond, or Gaal’s prior convictions. See Roman v. State, 145 S.W.3d 316,
319, 321 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (stating that
“refusal to consider the entire range of punishment would not be arbitrary if
certain facts were proved, and other mitigating facts not proved” and that only
“an arbitrary refusal to consider the entire range of punishment would
constitute a denial of due process”); Salinas v. State, 9 S.W.3d 338, 341 (Tex.
App.—San Antonio 1999, no pet.) (explaining that judges are “human and
allowed to be angry as long as their judgment is fair and supported by law”).

                                        9
2009) (explaining that “the court shall inquire as to the existence of any plea

bargaining agreements between the state and the defendant and, in the event

that such an agreement exists, the court shall inform the defendant whether it

will follow or reject such agreement) (emphasis added); Perkins v. Court of

Appeals for the Third Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 282

(Tex. Crim. App. 1987) (orig. proceeding) (explaining that a trial judge “should

not participate in any plea bargain agreement discussions until an agreement

has been reached between the prosecutor and the defendant” because “the trial

judge should always avoid the appearance of any judicial coercion or

prejudgment of the defendant”); see also Kincaid v. State, 500 S.W.2d 487,

490 (Tex. Crim. App. 1973) (stating that it is “unjudicial and contrary to public

policy for the trial judge to commit himself as to his decision prior to [a]

hearing”).

      The State notes in its brief that during the hearing on Gaal’s motion for

new trial, the trial judge said that his statement about Gaal’s potential plea

bargain did not mean that he could not consider the full range of punishment

at trial. 4 But that comment occurred after the recusal judge made his decision



      4
          … The trial judge said,

      And I don’t know how many times [Gaal’s counsel] came back in
      the courtroom and asked to have so many days after he pled [to

                                       10
to deny Gall’s recusal motion, and it strains reason to believe that under the

circumstances of this case—in which the trial judge reacted against Gaal by

foreclosing a plea bargain for all but the maximum term specifically because he

chose not to plead guilty 5 —the judge would have assessed less than the

maximum term if Gaal had nonetheless pled guilty without a plea bargain before

the judge at trial.

      Finally, we note that at the recusal hearing, the recusal judge said,

“[W]hile a bias or prejudice is not something that a judge should have, it is

permitted as long as it’s not extra-judicial.” However, as the United States

Supreme Court has explained,

      It is wrong in theory . . . to suggest, as many opinions have, that
      “extrajudicial source” is the only basis for establishing disqualifying
      bias or prejudice. It is the only common basis, but not the
      exclusive one, since it is not the exclusive reason a predisposition
      can be wrongful or inappropriate. A favorable or unfavorable
      predisposition can also deserve to be characterized as “bias” or
      “prejudice” because, even though it springs from the facts adduced
      or the events occurring at trial, it is so extreme as to display clear
      inability to render fair judgment.



      finish his business affairs] or whatever, and I said, no, the deal was
      that if he did not plead today, that, in fact, I would not take a plea
      bargain unless it was for the maximum. Now, that did not preclude
      me hearing this case and deciding within the punishment range,
      two to ten years. I was just not going to take a plea bargain.
      5
      … Defendants have the right to plead not guilty. See Mendez v. State,
138 S.W.3d 334, 343–44, 350 (Tex. Crim. App. 2004).

                                        11
Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994);

see also Kniatt, 239 S.W.3d at 914, 920 (stating that “claims of questioned

impartiality and personal knowledge under [the rules of civil procedure] do not

always require a showing of bias or partiality arising from an extrajudicial

source” and holding that recusal for judicial remarks or conduct evidencing bias

may stem from facts arising within the context of a judicial proceeding when

the remarks show deep-seated favoritism that make a fair judgment impossible);

Roman, 145 S.W.3d at 322; Markowitz v. Markowitz, 118 S.W.3d 82, 87

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Liteky and

explaining similarly), cert. denied, 543 U.S. 820 (2004).

      For all of these reasons, we hold that the recusal judge abused his

discretion by deciding that the trial judge should not be recused, and we sustain

Gaal’s fourth point. 6 Having sustained his fourth point, we will not address his

first three points. See Tex. R. App. P. 47.1; Rotenberry v. State, 245 S.W.3d

583, 589 (Tex. App.—Fort Worth 2007, pet. ref’d).




      6
       … Trial before a biased judge is structural error that is not subject to a
harm analysis. See Johnson v. United States, 520 U.S. 461, 468–69, 117 S.
Ct. 1544, 1549–50 (1997); De Leon, 127 S.W.3d at 7 (citing Neder v. United
States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999)); Kniatt, 239 S.W.3d at
920 n.17.

                                       12
                                   Conclusion

      Having sustained Gaal’s fourth point regarding the denial of his motion to

recuse, we reverse the trial court’s judgment and remand this case for a new

trial before a different judge. See Tex. R. App. P. 43.2(d); State ex rel. Millsap

v. Lozano, 692 S.W.2d 470, 479 n.12 (Tex. Crim. App. 1985) (orig.

proceeding) (noting that rule of civil procedure 18b affords “a trial before a

different judge”); see also In re Union Pac. Res. Co., 969 S.W.2d 427, 428

(Tex. 1998) (“If the appellate court determines that the judge presiding over the

recusal hearing abused his or her discretion in denying the motion and the trial

judge should have been recused, the appellate court can reverse the trial court’s

judgment and remand for a new trial before a different judge.”).




                                            TERRIE LIVINGSTON
                                            JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 28, 2010




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