Order filed March 10, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00177-CR
__________
PETER HELLMUTH EGGERT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR12121
Order on Appellant’s Motion to Recuse
With Respect to the Recusal of Justice Terry McCall
The trial court entered an order on May 20, 2010, revoking Peter Hellmuth Eggert’s term of community supervision. Appellant filed his notice of appeal from the trial court’s order on May 28, 2010. The appeal is currently pending with this court.
On February 22, 2011, appellant filed a motion entitled: “Appellant’s Motion to Recuse the 11th Court of Appeals and Motion to Request the Court to Move the Texas Supreme Court to Transfer this Case to a Sister Court of Appeals.” Appellant seeks the recusal of all of this court’s justices in the motion. This order addresses the merits of appellant’s motion with respect to his request to disqualify Justice Terry McCall. See Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied).
Pursuant to Tex. R. App. P. 16.3(b), Justice McCall has considered the motion in chambers. Justice McCall has found no reason to recuse himself and, under Rule 16.3(b), certified the issue to the entire court for a determination by the other justices of this court.1 Chief Justice Jim R. Wright and Justice Rick Strange have decided the motion with respect to Justice McCall sitting en banc without Justice McCall’s participation.
The recusal of appellate justices and judges is controlled by Rule 16 of the Texas Rules of Appellate Procedure. The grounds for recusal are the same as those provided in the Texas Rules of Civil Procedure. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b. Appellant seeks the recusal of the justices on this court on the basis that this court “is directly implicated in the allegations” surrounding various criminal offenses for which he has been prosecuted and convicted. He further contends that this court is “the victim” of the offenses.
Tex. R. App. P. 16.3(a) provides that a motion to recuse an appellate court justice “must be filed promptly after the party has reason to believe that the justice or judge should not participate in deciding the case.” Almost nine months have elapsed between the filing of appellant’s notice of appeal and the filing of his motion to recuse. The ground upon which he seeks the recusal of the justices of this court was known to appellant when he filed the notice of appeal. In this regard, he filed a motion to disqualify the justices of this court on the same ground over five years ago in Cause No. 11-05-00234-CR in the appeal from the underlying conviction giving rise to his term of community supervision. Appellant’s motion to recuse is denied on the basis that he did not file it promptly as required by Rule 16.3.
Additionally, appellant’s ground for seeking to recuse the justices of this court is incorrect. This court is not “the victim” of his underlying conviction for fabricating physical evidence. As we noted in Cause No. 11-05-00234-CR, “the victim” of the offense is the administration of justice. See Lane v. State, 634 S.W.2d 65, 66 (Tex. App.—Fort Worth 1982, no pet.) (“When perjury is committed in a judicial proceeding, it is the administration of justice that suffers the offense, not the person or property of the trial judge.”).
Appellant’s motion to recuse is overruled with respect to Justice McCall.
PER CURIAM
March 10, 2011
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and Strange, J.
McCall, J., not participating.
Certification filed March 10, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00177-CR
__________
PETER HELLMUTH EGGERT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR12121
C E R T I F I C A T I O N
I have reviewed “Appellant’s Motion to Recuse the 11th Court of Appeals and Motion to Request the Court to Move the Texas Supreme Court to Transfer this Case to a Sister Court of Appeals” filed in this cause on February 22, 2011. To the extent the motion seeks my recusal, I have reviewed the motion in chambers. See Tex. R. App. P. 16.3(b). I find no reason to recuse myself and, under Rule 16.3(b), certify the issue of my recusal to the entire court for a determination by the other justices of this court. See Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied).
______________________________
TERRY McCALL
JUSTICE
March 10, 2011
Do not publish. See Tex. R. App. P. 47.2(b).
APPENDIX
1A copy of Justice McCall’s written certification is attached to this order as an appendix.