Ex Parte David Lee Victorick

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00112-CR
NO. 09-14-00190-CR
____________________

EX PARTE DAVID LEE VICTORICK

and

DAVID LEE VICTORICK, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-11-12323 CR
________________________________________________________ _____________

OPINION

This matter involves two appeals filed by David Lee Victorick relating to his

indictment and subsequent conviction for online solicitation of a minor. 1 See Tex.

1
We have considered three related matters filed by Victorick. Initially, we
dismissed a petition for a writ of mandamus wherein Victorick sought to compel
the presiding administrative judge to grant Victorick’s motion to recuse the trial
1
Penal Code Ann. § 33.021(c) (West 2011). On March 7, 2014, the trial court

denied Victorick’s pre-trial application for writ of habeas corpus asserting a claim

of double jeopardy. Victorick filed a notice of appeal and requested that his trial be

stayed pending the resolution of Appeal No. 09-14-00112-CR, but this Court

denied the motion to stay. Victorick was tried, convicted, and sentenced to five

years of imprisonment. Victorick filed a notice of appeal of the final judgment,

docketed in Appeal No. 09-14-00190-CR. We affirm the order denying the

application for a writ of habeas corpus and the judgment of conviction.

ISSUES

Victorick presents two issues in Appeal No. 09-14-00112-CR (the pre-trial

request for habeas relief). First, he contends a bond order that issued after his arrest

judge. See In re Victorick, No. 09-13-00483-CR, 2013 WL 5969469, at *1 (Tex.
App.—Beaumont Nov. 6, 2013, orig. proceeding) (mem. op., not designated for
publication). Next, we denied a petition for a writ of mandamus and prohibition
filed by Victorick to compel the trial court to stay the trial pending the resolution
of his appeal of the trial court’s denial of a pre-trial habeas application challenging
the facial constitutionality of the statute creating the offense for which he was
indicted. See In re Victorick, No. 09-13-00550-CR, 2013 WL 6885130, at *1 (Tex.
App.—Beaumont Dec. 30, 2013, orig. proceeding, [leave denied]) (mem. op., not
designated for publication). Finally, we affirmed the trial court’s denial of
Victorick’s facial challenge to the constitutionality of Texas Penal Code section
33.021(c). See Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *1
(Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for
publication). In the habeas appeal now before us, we granted Victorick’s motion to
take judicial notice of the clerk’s record filed in Appeal No. 09-13-00551-CR. See
Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).

2
on a previous indictment, which did not go to trial, constitutes punishment under

the Fifth Amendment’s Double Jeopardy Clause because the bond contained

oppressive and onerous conditions that infringed upon his constitutional rights.

Second, Victorick contends the oppressive and onerous conditions of his pre-trial

bond on the indictment under which he was tried constitute punishment for double

jeopardy purposes. In a motion to dismiss and with a suggestion of mootness, the

State argues that Victorick’s conviction mooted the appeal of the denial of pre-trial

habeas relief.

Victorick presents three issues in Appeal No. 09-14-00190-CR (appeal of his

conviction). First, he challenges the legal sufficiency of the evidence to support his

conviction. Second, he contends he was deprived of an impartial magistrate. Third,

Victorick contends the procedural rules that apply to recusal proceedings deprived

him of due process because the rules do not provide for an interlocutory appeal.

INDICTMENT AND CONVICTION

The State initially indicted Victorick for online solicitation of a minor under

subsection (b)(1) of section 33.021 of the Penal Code. See Tex. Penal Code Ann. §

33.021. After subsection (b)(1) was found to be unconstitutional by the Texas

Court of Criminal Appeals in Ex parte Lo, Victorick was re-indicted under

subsection (c) of section 33.021 for knowingly soliciting a fifteen year old girl to

meet him with the intent that she engage in sexual contact, sexual intercourse, or
3
deviate sexual intercourse with him. See 424 S.W.3d 10, 27 (Tex. Crim. App.

2013). Victorick entered a not guilty plea and a jury found the appellant guilty as

charged, and assessed his punishment at imprisonment for five years.

MOOTNESS

Before we address Victorick’s appellate issues we consider the State’s

argument that Victorick’s appeal of the denial of the pre-trial request for habeas

relief is moot. As a general rule, a habeas appeal relating to pre-trial bail is mooted

by the subsequent conviction of the defendant because upon his conviction the

habeas applicant is no longer being subjected to pre-trial confinement. See e.g.,

Martinez v. State, 826 S.W.2d 620, 620 (Tex. Crim. App. 1992). Unlike a habeas

claim concerning pre-trial bail in which the applicant seeks relief from an

unconstitutional pre-trial confinement, if he is correct regarding his double

jeopardy argument, Victorick may be entitled to relief from the sentence imposed

in the judgment of conviction that has also been appealed to this Court. Therefore,

Victorick’s pre-trial request for habeas relief is not necessarily mooted by his

conviction.

DOUBLE JEOPARDY CLAIM

The indictment accusing Victorick of online solicitation of a minor under

section 33.021(c) of the Texas Penal Code alleged, in part, that Victorick, on or

about June 2, 2013, did “knowingly solicit by text message, K.E., a minor, to meet
4
the defendant, with the intent that K.E. would engage in sexual contact and sexual

intercourse and deviate sexual intercourse with the defendant[.]” After indictment,

Victorick filed an application for writ of habeas corpus in which he alleged that he

was being illegally confined because “[t]he Court has set conditions of bond that

are not only oppressive, they have denied him constitutionally-guaranteed rights.”

Victorick alleged that “Double Jeopardy forbids his trial on the present

indictment.” Victorick’s petition for habeas relief contends that subjecting him to a

trial and potential conviction and sentence for a second degree felony would

violate the Double Jeopardy Clause’s prohibitions against multiple punishments

because he had already been subjected to punishment within the scope of the

Double Jeopardy Clause by conditions of his bond that prohibited him from: (1)

possessing any firearms; (2) contacting the alleged victim’s family; (3) going

within 100 yards of the residence of the alleged victim; (4) contacting any child

under seventeen years of age; or (5) having any contact with any computer or

internet connection. Victorick argues that the conditions of his bond effectively

denied him his right to bear arms, to associate with his wife, to attend church, to

move about freely and peaceably in public places, and to work. No evidence was

offered in the pre-trial habeas hearing. The trial court denied the application.

The Fifth Amendment states that “[n]o person shall . . . be subject for the

same offense to be twice put in jeopardy of life or limb. . . .” U.S. CONST.
5
amend. V. Victorick argues that placing him on bond under conditions that he

contends are oppressive and onerous constitutes punishment for Fifth Amendment

double jeopardy purposes. Citing United States v. Jorn, Victorick contends that

judicial overreaching triggers double jeopardy protections. See 400 U.S. 470, 483-

84 (1971) (plurality op.). Jorn held the Double Jeopardy Clause barred a re-trial

after the trial court sua sponte discharged the jury without manifest necessity for

calling a mistrial and without considering granting a continuance. Id. at 487. Jorn

was a successive prosecution case in which jeopardy attached with the seating of

the jury in the first trial and terminated when the trial court discharged the jury;

jeopardy would attach a second time with the seating of a new jury, thereby

implicating the Fifth Amendment’s protection against successive prosecution. See

id. at 484.

Victorick argues the trial court erred in failing to apply the Jorn successive

prosecution concept, notwithstanding the fact that jeopardy attached only once in

his case. Victorick contends without citing any authority that by referring to the

complaining witness as the “victim” in the order setting conditions of bond, the

trial court determined that he had committed a crime and the entry of the order

functioned as an adjudication of guilt. The law of this state is well settled that with

respect to a jury trial, jeopardy attaches when the jury is empaneled and sworn, and

for a bench trial jeopardy attaches when the defendant pleads to the charging
6
instrument. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996) (The

constitutional prohibition against double jeopardy does not apply until the

defendant enters a plea before the trier of facts.). Jeopardy does not attach in a

preliminary hearing regardless of what facts may be determined during the

proceeding. See id.

Nevertheless, when the defendant has been subjected to a single trial, “the

Double Jeopardy Clause ‘prevent[s] the sentencing court from prescribing greater

punishment than the legislature intended.’” Ervin v. State, 991 S.W.2d 804, 807

(Tex. Crim. App. 1999) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).

Factors considered in determining legislative intent include whether two provisions

imposing separate punishments are contained within the same statutory section,

whether they are phrased in the alternative, whether they are named similarly,

whether they have common punishment ranges, whether they have a common

focus or gravamen, and whether that common focus tends to indicate a single

instance of conduct, whether the elements that differ between them can be

considered the same under an imputed theory of liability which would result in the

offenses being considered the same under the Blockburger test, and whether there

is legislative history articulating an interest to treat the offenses as the same or

different for double jeopardy purposes. Ervin, 991 S.W.2d at 814 (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)).
7
 The State cites cases from other jurisdictions, which hold that conditional

pre-trial release cannot be considered punishment for purposes of the Double

Jeopardy Clause because it serves a remedial rather than a punitive purpose and a

bond condition is not based on a determination of guilt. See State v. Torres, 890

So.2d 292, 296 (Fla. Dist. Ct. App. 2d Dist. 2004) (conditions of pre-trial release

requiring accused to attend sex offender treatment were not punitive and double

jeopardy did not attach); accord Parent v. State, 900 So.2d 598, 599-600 (Fla. Dist.

Ct. App. 2d Dist. 2004) (special conditions placed on pre-trial release of DUI

defendant did not bar further prosecution under the double jeopardy clause);

Halikipoulos v. Dillion, 139 F.Supp.2d 312 (E.D.N.Y. 2001) (pre-trial release

condition requiring defendant to attend “stoplift” counseling program did not

constitute punishment and court rejected double jeopardy argument). While not

binding on this Court, the cases are instructive of the result reached in other

jurisdictions.

In Texas, the Code of Criminal Procedure provides rules for fixing the

amount of the bond and the conditions of bond. Tex. Code Crim. Proc. Ann. arts.

17.15 (West 2005), 17.40 (West Supp. 2014). “The bail shall be sufficiently high

to give reasonable assurance that the undertaking will be complied with.” Tex.

Code Crim. Proc. Ann. art. 17.15. In setting the amount of the bond, “[t]he power

to require bail is not to be used as to make it an instrument of oppression.” Id. The
8
magistrate considers “[t]he nature of the offense and the circumstances under

which it was committed” and also considers “[t]he future safety of a victim of the

alleged offense and the community. . . .” Id. In Texas, “a magistrate may impose

any reasonable condition of bond related to the safety of a victim of the alleged

offense or to the safety of the community.” Tex. Code Crim. Proc. Ann. art. 17.40.

Unlike the criminal offense of online solicitation of a minor that is contained

within the Penal Code, the statutes that authorize a trial court to fix bail pending

trial and to impose conditions on a defendant’s pre-trial release on bail function to

ensure the defendant’s appearance at trial and to protect the community without

requiring a finding of guilt. Compare Tex. Code Crim. Proc. Ann. arts. 17.15,

17.40, with Tex. Penal Code Ann. § 33.021(c). We conclude that the clear intent of

the Legislature as demonstrated in the plain language contained in articles 17.15

and 17.40 was to permit a trial court to set reasonable conditions of bond as a

requirement for pre-trial release and then to impose the penalty set out in the Penal

Code for the offense if the defendant is later tried and convicted. See Ervin, 991

S.W.2d at 814.

Victorick argues that in his case, the trial court failed to follow the rules

established by articles 17.15 and 17.40 of the Texas Code of Criminal Procedure

and that the trial court imposed unreasonable conditions of bond. See Tex. Code

Crim. Proc. Ann. arts. 17.15, 17.40. He argues that the conditions impacted his
9
freedoms as guaranteed by the Fifth Amendment to such a degree that he has been

punished before trial for the acts alleged in the indictment. The proper method to

challenge a punitive bail condition is by filing either a motion to reduce bail or an

application for a writ of habeas corpus for a bail reduction. See Stack v. Boyle, 342

U.S. 1, 6 (1951) (the proper procedure for challenging bail as unlawfully fixed is

by motion for reduction of bail); Ex parte Young, 257 S.W.3d 276, 278 (Tex.

App.—Beaumont 2008, no pet.) (the accused may challenge the conditions

attached to bail through a pre-trial writ of habeas corpus).

Victorick petitioned for pre-trial habeas relief, but he sought only relief from

the indictment and did not seek habeas relief from the order setting ancillary

conditions of bond. Furthermore, he submitted no evidence regarding the

oppressive nature of the conditions of bond. During the hearing on his pre-trial

habeas petition, the State argued that the bond conditions were reasonable because

they related to safety of the victim and the community. Considering that the

indictment accused Victorick of online solicitation of a member of his household,

and the use of a computer, electronic or texting device, the trial court reasonably

could have determined that temporarily prohibiting his use of the internet and

contact with the victim’s family was authorized by article 17.40, even though the

conditions necessarily impaired Victorick’s freedom to communicate electronically

and to associate with his family. See Tex. Code Crim. Proc. Ann. art. 17.40.
10
Therefore, we conclude that the trial court did not err in denying the application for

writ of habeas corpus. Accordingly, we overrule both issues raised by Victorick in

Appeal No. 09-14-00112-CR.

SUFFICIENCY OF THE EVIDENCE

In Victorick’s first issue in Appeal No. 09-14-00190-CR (appeal of his

conviction), Victorick challenges the sufficiency of the evidence to support his

conviction of online solicitation of a minor. A person commits the offense of

online solicitation of a minor if the person “over the Internet, by electronic mail or

text message or other electronic message service or system, or through a

commercial online service, knowingly solicits a minor to meet another person,

including the actor, with the intent that the minor will engage in sexual contact,

sexual intercourse, or deviate sexual intercourse with the actor or another person.”

See Tex. Penal Code Ann. § 33.021(c). Victorick argues the evidence at trial was

insufficient to prove beyond a reasonable doubt that he did “knowingly solicit by

text message, K.E., a minor, to meet the defendant, with the intent that K.E. would

engage in sexual contact and sexual intercourse and deviate sexual intercourse with

the defendant,” as alleged in the indictment. Victorick contends that

“communicating in a sexually explicit manner with a minor, even if with the intent

to arouse or gratify the sexual desire of any person, is legal.” He argues the

evidence is legally insufficient to establish he violated the statute because the State
11
failed to prove beyond a reasonable doubt that he solicited K.E. to meet him and

that he acted with the intent that K.E. engage in sexual contact.

The “Jackson v. Virginia legal-sufficiency standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In evaluating

the legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the verdict to determine whether any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. Brooks, 323

S.W.3d at 902 n.19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

The jury is the ultimate authority on the credibility of witnesses and the

weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,

623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13. If the record contains conflicting inferences, we must presume that

the jury resolved such facts in favor of the verdict and defer to that resolution.

Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). We also determine whether the necessary inferences are
12
reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at

778. We may not substitute our judgment concerning the weight and credibility of

the evidence for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

Courts and juries no longer face the difficult task of excluding every
reasonable hypothesis other than the defendant’s guilt. Under the
current standard of review, there is no reason to treat circumstantial
evidence of an accused’s mental state any differently than
circumstantial evidence of other elements. Just as circumstantial
evidence is reviewed under the same standard as direct evidence,
circumstantial evidence of intent is reviewed under the same standard
as circumstantial evidence of other elements.

Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). “As long as the

verdict is supported by a reasonable inference, it is within the province of the

factfinder to choose which inference is most reasonable.” Id. at 523.

In 2013, Victorick was employed as a high school coach and teacher. A year

before the events at issue in this appeal, Victorick’s wife became concerned that

Victorick might have developed a sexual attraction to K.E. His wife noticed that

Victorick displayed a keen interest in the possibility that his step-daughter, K.E.,

might be sexually active and the wife observed what appeared to be inappropriate

sexual remarks in text messages from Victorick to K.E. Victorick explained to his

wife that he had been “referring to . . . basketball, teaching her how to shoot,

13
dribble better, things of that nature[]” and that is what he meant when he sent K.E.

a text message saying that “he could show her things and do things that, you know,

some of those boys couldn’t.” Mrs. Victorick believed her husband, but she put

locks on K.E.’s door and she would stay up until Victorick went to bed “to make

sure that he wasn’t going in there and downloading from her phone[.]” There were

times when Victorick was “acting like a jealous boyfriend[;]” for example, once he

climbed a ladder to look into a neighboring cul-de-sac to observe K.E. and her

boyfriend.

On the date of the offense, Victorick, his wife, and K.E. were attending a

graduation party at a friend’s home. Victorick was, according to his wife, “drinking

excessively” at the party. After K.E. left the party and went to a nearby fast food

restaurant with a boy, Victorick sent K.E. a text message asking, “Is your quickly

done? Time to get back.” K.E. responded, “I’m pretty sure all we did was go get

ice cream.” The exchange of messages between K.E. and Victorick continued as

follows:

K.E.: We need water

Victorick: I.need then & sick me you willl love, where are you! Suck me!

K.E.: Never

Victorick: If you ever. You will h understand how good I I eat p[---]y, let me
show you! You will. Love ir!!’ Ask the others!!

14
 K.E.: F[---] you

Victorick: Please let me eat you you will love, it quit f[---]ing, I love your,
miore than you know!

K.E.: F[---]ing for

K.E.: Die 2

K.E. showed the messages to Victorick’s wife, who understood that it

referred to oral sex. A few weeks thereafter, K.E. called 9-1-1 about a physical

altercation she had with Victorick. During the call, K.E. told the dispatcher that

Victorick grabbed her by her hair and shoved her into the furniture, and also that

he was “trying to get me to do things with him . . . sexual things.”

K.E. testified at trial that she did not believe Victorick was trying to have

sex with her, and that she believed he could have sent the messages because he was

trying to keep her from having sex with more people. She does remember,

however, telling her mother that she was “creeped out” by her stepfather, and she

agreed that she called 9-1-1. A clinical psychologist testified for the State. He

stated that he had counseled hundreds of children who were victims of sexual

abuse. With respect to the Victorick case, he observed the testimony of K.E.,

reviewed some but not all of the texts between Victorick and K.E, reviewed the

statements given by K.E.’s mother and Victorick, and reviewed other items from

2
We use brackets and dashes to note our omission of some letters due to the
profane nature of the words.
15
the reports. Further, he testified that abusers often “groom” their victims “[t]o

foster that dependence and to foster that trust so that they can not only abuse the

child and have access to them, but to the extent that they do harm the child in some

way, the child may not tell about it, may even have positive relationships toward

the person related to ways that they’ve been manipulated.” The psychologist stated

that the testimony of K.E. that she did not want Victorick to get in trouble, or that

she did not think the texts were intended to be sexual, or that she blamed herself,

would be

consistent with someone who has been groomed by a suspect,
groomed to feel like, to the extent anything bad is happening, it’s my
fault, rather than the other person’s fault, and groomed to take
responsibility for that, rather than entertain the idea, which may be a
hard idea to entertain, to the extent that a child wants to believe in
their father and the goodness of their father and having a good
relationship with the father, that can be a lot for a child to give up.
And in some cases that I have worked on, they will try to deny or
rationalize or even blame themselves for what’s happening rather than
believe that their father might be trying to hurt them.

A forensic examination of Victorick’s phone revealed an exchange of

thousands of messages between Victorick and K.E. prior to July 25, 2013. Included

within the messages are statements that demonstrate Victorick’s sexual interest in

K.E.

In his brief on appeal, Victorick further argues that his communications

before the date of the offense were not illegal, “no matter how salacious, vulgar,

16
inappropriate or sexually explicit any of the text messages that Mr. Victorick sent

before June 2, 2013, may have been[.]” He argues that the text message sent from

his phone when K.E. went to the fast food restaurant did not request that K.E. meet

him. Victorick contends that his messages, which express a present desire to

engage in oral sex, appear to have occurred after K.E. returned to the party because

they were made after K.E. asked Victorick for water. The alleged presence of

Victorick and K.E. being in the same building at the time Victorick sent the

messages would not, however, negate the element of the offense that the person

“knowingly solicits a minor to meet another person, including the actor” with the

intent that the minor will engage in sexual contact. See Tex. Penal Code Ann. §

33.021(c). The jury could have reasonably concluded based upon the content of the

messages, as well as the testimony and evidence in the record, that Victorick sent

K.E. a text message that solicited K.E., a minor, to meet.

“Meet” is not defined in the statute. “Words not specially defined by the

Legislature are to be understood as ordinary usage allows, and jurors may thus

freely read statutory language to have any meaning which is acceptable in common

parlance.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

“Accordingly, when determining the sufficiency of evidence to support a jury

verdict, reviewing courts must not employ definitions of relevant statutory words

which are different or more restrictive than the jurors themselves were legally
17
entitled to use.” Id. Among its commonly understood terms, “meet” means, “to

come near or in touch with by approach from another direction” and “in the basic

sense pertinent here, [usually] implies no more than to come into the presence or

company of whether by chance or design[.]” WEBSTER’S THIRD NEW INT’L

DICTIONARY 1404 (2002). The jury could, using the ordinary understanding of the

word “meet,” find that Victorick solicited K.E. to meet him, and further that

Victorick asked the victim to engage in a sex act that required physical contact

between them.

Victorick argues that the text message, “I.need then & sick me you willl

love, where are you! Suck me!”, does not “solicit” K.E. “Solicit” is not defined in

section 33.021 of the Texas Penal Code, and could be understood by the jury by its

commonly defined terms, which include, “to approach with a request or plea” and

“to endeavor to obtain by asking or pleading[.]” WEBSTER’S THIRD NEW INT’L

DICTIONARY 2169 (2002). “Suck” is also found in the dictionary, and includes the

meaning, “to draw in the mouth over or around an object. . . .” Id. at 2283. The part

of “me” to which Victorick referred could be understood by the jury to mean his

genitals, especially in light of another communication from Victorick to K.E. in

which Victorick suggested that they engage in oral sex. The jury could, using the

ordinary understanding of the word “solicit,” find that Victorick asked or pleaded

with K.E. to engage in oral sex.
18
 Victorick contends that the evidence is legally insufficient because the mere

presence of the text on his phone does not prove that he sent the message because

there were college-age students at the party and one of them could have sent the

message. The officer who examined Victorick’s phone testified that it was

password-protected. It was reasonable for the jury to infer that Victorick sent the

message. His wife saw him use the phone that night, and Victorick sent sexually

explicit messages to K.E. on many other occasions.3 Because the inference that it

was Victorick that sent the message from his password-protected phone was

reasonable, the State was not required to exclude the possibility that someone else

at the party used Victorick’s phone to send the messages to K.E. See Laster, 275

S.W.3d at 521, 523.

Viewing the totality of the evidence and inferences in a light most favorable

to the verdict, the jury could have reasonably inferred that Victorick sent the

messages to K.E. See Hooper, 214 S.W.3d at 13. We conclude that the evidence is

legally sufficient to support the verdict. Accordingly, we overrule issue one.

3
The testimony and evidence indicated that Victorick—a 58-year-old high
school teacher and coach—spied upon K.E. when she was with her friends; he
snuck into her room at night while she slept; he used the “notes” function of his
cell phone to record his own thoughts regarding her sexual activity and to record
his sexual attraction to her; and he sent many other text messages to K.E. that
included requests to be permitted to perform what a jury could reasonably
conclude were sex acts.
19
 IMPARTIAL TRIBUNAL

In his second issue in Appeal No. 09-14-00190-CR (appeal of his

conviction), Victorick argues that the reference to the “victim” in the pre-trial order

setting ancillary conditions of bond demonstrates that the trial judge pre-judged his

guilt, and establishes that he was deprived of a fair and impartial tribunal, in

violation of the Due Process Clause of the Fifth and Fourteenth Amendments. See

Tumey v. Ohio, 273 U.S. 510, 523 (1927). “A fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955).

The trial court used a pre-printed form that contained several references to

the “victim” and “the victim’s family” which Victorick argues indicates that the

trial court pre-judged his guilt before the trial. The document imposes conditions

but includes no factual findings. The document was not prepared for use before the

jury, nor is there any indication from the record that the pre-trial order setting

ancillary conditions of bond was ever shown to the jury. Additionally, during the

trial, when Victorick objected to the prosecutor’s reference to the complaining

witness as “the victim” the trial court sustained the objection and instructed

counsel to use the phrase “alleged victim” and instructed the jury that “any time

. . . prosecutor uses the word ‘victim,’ that you take it as alleged victim.”

Therefore, we conclude that the record does not support Victorick’s claim that the

trial court deprived him of the presumption of innocence. We overrule issue two.
20
 RECUSAL PROCEDURE

In his third issue in Appeal No. 09-14-00190-CR (appeal of his conviction),

Victorick challenges the constitutionality of the recusal procedure contained in

Rule 18a(a)(3) and 18a(j)(1)(A) of the Texas Rules of Civil Procedure. See Tex. R.

Civ. P. 18a. Subsection (a)(3) of Rule 18a provides that a party may not seek

recusal of the judge solely on account of the judge’s rulings in the case in which

his recusal is sought. Id. Subsection (j)(1)(A) states that an order denying a motion

to recuse may be reviewed only for abuse of discretion on appeal from the final

judgment. Id. Victorick argues that Rule 18a unconstitutionally denies a criminal

defendant due process “[b]ecause the defendant will have been forced, as was Mr.

Victorick, to a trial before a judge who has prejudged his guilt.”

“Whenever we are confronted with an attack upon the constitutionality of a

statute, we presume that the statute is valid and that the Legislature has not acted

unreasonably or arbitrarily. [citation omitted] The burden rests upon the individual

who challenges the statute to establish its unconstitutionality” as applied to him.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (citing to Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)); Wood v. State, 18

S.W.3d 642, 650-51 (Tex. Crim. App. 2000). Victorick has not established that the

trial court prejudged his guilt. Furthermore, Victorick has not shown that Rule 18a

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is unconstitutional as applied to him or as applied to some hypothetical third party.

Therefore, we overrule issue three.

CONCLUSION

Having overruled all of the issues that have been raised by the appellant in

his appeals, we affirm the order denying the application for a writ of habeas corpus

and we affirm the judgment of conviction.

AFFIRMED.

________________________________
LEANNE JOHNSON
Justice

Submitted on November 10, 2014
Opinion Delivered December 10, 2014
Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

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