PD-0190-15
PD-0190-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/30/2015 11:24:43 PM
Accepted 3/31/2015 5:02:41 PM
ABEL ACOSTA
CLERK
NO. _____________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
ERIK SANTANA GUANCHE § DEFENDANT-APPELLANT
§
V. §
§
THE STATE OF TEXAS § PLAINTIFF-APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
NO. 01-13-00851-CR
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT
CAUSE NO. 1869024
IN HARRIS COUNTY CRIMINAL COURT AT LAW NO. 7
J. Ricardo Soliz and Associates, P.L.L.C.
Rick Soliz
Attorney at Law
Texas Bar Number 00785013
P.O. Box 4051
March 31, 2015 Houston, Texas 77210
713-228-1900
jrsoliz@att.net
PRO BONO ATTORNEY FOR
APPELLANT
TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel ………….. 3
Index of Authorities …………………. 3
Statutes and Rules …………………. 3
Statement Concerning Oral Argument …………………. 3
Statement of the Case ……………………………….. 4
Procedural History ……………………………….. 5
Grounds for Review ……………………………….. 6
Argument ……………………………….. 6
Statement of Fact ……………………………….. 6
Ground No. One ……………………………….. 9
Ground No. Two ……………………………….. 10
Conclusion and Prayer ……………………………….. 14
Certificate of Compliance ……………………………….. 14
Certificate of Service ……………………………….. 15
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IDENTITY OF JUDGE, PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 68.4(a), a complete list is provided below.
Trial Court Judge: Honorable Pam Derbyshire
Appellant: Erik Santana Guanche
Counsel for Appellant: Trial and Appeal: Rick Soliz,
P.O. Box 4051, Houston, Texas 77210-4051
Appellee: State of Texas
Counsel for Appellee:
Jessica Akins, Assistant District Attorney on appeal
Brad Means, Assistant District Attorney at trial
1201 Franklin, Suite 600, Houston, Texas 77002
INDEX OF AUTHORITIES
STATUTES AND RULES
Government Code Sec. 57.022 10, 12
Government Code Sec. 57.049 10, 13
Texas Penal Code Sec. 7.02. 12
Texas Rules of Civil Procedure 18b (b)(1) 12
CASES
Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—
San Antonio 2007, pet. ref’d) 10
Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992) 10
Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011) 10
STATEMENT CONCERNING ORAL ARGUMENT
The appellant requests oral argument because of the importance of the issue
presented concerning whether a sitting judge may disregard and violate Texas law
with impunity in the interest of efficiency and to the detriment of the indigent or
racial and ethnic minority defendants.
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Appellant herein, by and through his attorney, Rick Soliz, and pursuant to
TEX. R. APP. P. 68 files this petition for discretionary review and in support thereof,
would show the Court as follows:
Erik Santana Guanche, Appellant in the above entitled and numbered cause,
respectfully requests that this court reverse the ruling, dated December 16, 2014, of
the First Court of Appeals, thereby reversing the judgment in the trial court, and
removing the Honorable Pam Derbyshire, Judge of Harris County Criminal Court
Number Seven from all proceedings associated with this case including any
hearings, trial, supervisory functions during any possible community supervision,
and from retaining jurisdiction within 30 days after any plea bargain or
incarceration that concludes this case.
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I. STATEMENT OF THE CASE
Erik Santana Guanche, Appellant in the above entitled and numbered cause,
filed a Motion to Recuse the Honorable Pam Derbyshire, Harris County Criminal
Court Number Seven. Such motion was “Denied without hearing” by the
Honorable Olen Underwood, Presiding Judge of the Second Administrative
Judicial Region of Texas. A one page form ORDER was signed and submitted to
the County Clerk of the Court and is contained in the Clerk’s short record in this
plea bargained case. Unsubstantiated statements in the Order are contradicted by
facts and statements in the body in the sworn Motion to Recuse. A subsequent and
timely filed Motion to Recuse the Administrative Judge from hearing a Motion for
Reconsideration was ignored by the Administrative Judge. It is also in the clerk’s
record.
II. PROCEDURAL HISTORY
Appellant, represented by his pro bono attorney of record on appeal, pled guilty to
the offense of driving while intoxicated on July 2, 2013. The trial court assessed
punishment at 15 days confinement in the county jail. A motion for new trial and
notice of appeal were timely filed. The court of appeals affirmed Appellant’s
conviction in an unpublished opinion issued on December 16, 2014. A copy is
attached hereto. A motion for rehearing and motion for reconsideration en banc
were filed and denied on January 15, 2015 and March 17, 2015 respectively.
This Court granted Appellant an extension of time until March 19, 2015, to
file this petition and until March 30, 2015 to perfect such filing.
III. GROUNDS FOR REVIEW
1. Whether the appellate court erred by refusing to recognize the trial court
erred in refusing to recuse itself after multiple open court efforts by the court to
have defense counsel violate Texas criminal law by interpreting without the
required license, for a previous defendant before the court on issues of bail, and
whether the Presiding Judge of the Administrative Region erred in denying the
same Motion to Recuse and a subsequently filed Motion to Recuse the
Administrative Judge.
2. Whether the appellate court erred in recognizing that appellant’s due
process rights were violated by appearing before a trial court that is openly
hostile to his race, and that has personally violated Texas criminal law hundreds
of times a year, for well over a decade, by promoting unlicensed language
interpretation in formal court proceedings.
IV. ARGUMENT
A. STATEMENT OF FACTS
Harris County Criminal Court Number Seven utilizes illegal procedures
regarding the interpretation of the Spanish foreign language for defendants brought
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before the court. This has the effect of disproportionally affecting mostly indigent
and minority defendants. It is a Class A misdemeanor criminal offense to interpret
before the court without the appropriate license. For well over 10 years, in
contravention of multiple laws and under the risk of creating perpetual criminal
prosecutions, Harris County judges including Court Seven, have supervised and
promoted illegal interpreting by both appointed and retained counsel, sheriff
deputies of earlier administrations, assistant district attorneys, court staff, and
anyone bilingual who happens to be around. Even bilingual judges themselves
have interpreted during formal proceedings without a license. Many law violating
actors, have since risen to other appointed and elected positions and continue to
perpetuate these crimes. No one has been prosecuted or arrested. The courts have
paid appointed attorneys extra public money to violate the law by interpreting
without the approved licenses as well, and by supplementing and enhancing
attorney income on pay vouchers for such illegal interpreting. Those appointed
attorneys who refuse to interpret without a license run the very real risk of not
being called upon again to earn pay in those courts while serving the indigent
through additional appointments.
These facts and similar events affecting the indigent and racial minorities
repeatedly occur in this Court and all 15 Harris County misdemeanor courts in spite
of Tex. Code Crim. Pro. Art. 38.30 requirements to provide an interpreter at County
expense, Attorney General Opinions, the Texas Government Code, Fair Defense Act
requirements (this judge is bound by Harris County’s selected alternative plan that
clearly states licensed interpreters are available 24 hours – this statement is false, but
if it is not, such interpreters are rarely utilized even upon request), antitrust law, due
process violations, State Bar and Judicial Conduct Committee ethical rules regarding
effective assistance of counsel and violations regarding conflicts and violations of
law, equal protection laws, the Americans with Disabilities Act, Civil Rights law
under Title VI of the Civil Rights Act of 1964, conspiracy laws, potential appellate
reversals, whistleblower laws and requirements under Harris County’s own recent
settlement agreement, after litigation, with the Texas Civil Rights Project.
Such settlement agreement requires this judge to provide interpreters upon
request. Yet there has never been a uniform, formal system in place to utilize
licensed and legal interpreters whether they are requested or not. In the rare
circumstance an interpreter is requested and actually scheduled, it is only after
requesting counsel is chastised, rebuked, threatened or otherwise ridiculed. By
contrast, the 22 Harris County criminal District Courts in the same building currently
have licensed interpreters available immediately and at all times for all Courts. Such
plan was implemented after years of violating Texas law in most of those courts as
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well, not out of a sense of justice, but because of appellate reversal(s).
Additionally, unlicensed interpreters are not sworn prior to interpreting as
required. There are various reasons licensed interpreters are required, but
immigrants in particular require them to ensure an understanding of, for example,
the potential consequences of a guilty plea. It is too easy for an unlicensed, biased
(for example, biased because of the want of additional court pay and future court
appointments) interpreter to skim over or leave out altogether immigration
consequences and warnings, even before the bench. In many instances, the court is
clueless as to what occurred before the bench.
Finally, it goes without saying that these facts expose a highly hypocritical,
paradoxical daily occurrence - criminal law violations, sponsored by the trial judge in
open court in front of a police officer (bailiff) and representatives of the district
attorney’s office on every occurrence. And another oddity: the District Clerk’s
office resisted efforts to make sure the documents in this trial case were available on
the internet to the public just like any other case.
B. GROUND FOR REVIEW NUMBER ONE
An order denying a motion to recuse is reviewed under an abuse-of-
discretion standard. TEX. R. CIV. P. 18a(j)(1)(A); see Abdygapparova v. State,
243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The court abuses
its discretion if its ruling is outside the “zone of reasonable disagreement” or if it
fails to apply proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289,
306 (Tex. Crim. App. 1992); Abdygapparova, 243 S.W.3d at 197–98.
Texas Rule of Civil Procedure 18(b) provides that a judge must recuse if,
among other things (1) the judge’s impartiality might reasonably be questioned or
(2) the judge has a personal bias or prejudice concerning the subject matter or a
party. TEX. R. CIV. P. 18b(b)(1)–(2). Under Rule 18(b)(1), a judge’s impartiality
might reasonably be questioned if she “harbors an aversion, hostility or disposition
of a kind that a fair-minded person could not set aside when judging the dispute.”
Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011); see TEX. R. CIV. P.
18b(b)(1).
This Texas Rule of Civil Procedure, which apply to Texas criminal case
recusals, state the situations in which a trial judge should be recused from
presiding over a particular case. In this case, the trial judge should be recused from
presiding because: in light of the illegalities, the trial judge’s impartiality may
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reasonably be questioned, the trial judge has a personal bias and prejudice
concerning all subject matter, when a Spanish speaker is involved, and the judge
has no regard for Texas law, thus leading to a strong appearance of impropriety.
C. GROUND FOR REVIEW NUMBER TWO
It is a due process violation of the Constitutions of this country and
state to fail to provide a licensed interpreter. Such is because failing to do so violates
Texas civil and criminal laws as well as federal laws. This judge has placed
efficiency (more and faster guilty pleas), and cost (of a licensed interpreter) over
sound law. How can a judge who does not know right from wrong, legal from illegal
interpreting, or is indifferent to such, sit in judgment in a fair and impartial manner
for any indigent or Spanish dominant, minority member of society. Many in both
categories require interpreters, and the defendant here, a minority, has been exposed
to this systematic illegal activity all around him and at every court setting and is at
risk of related system deficiencies which by their nature discriminate against him, as
a Hispanic. Who is it that requires interpreters the great majority of the time? It is
Hispanics. As an aside, but a point that should be considered: not one of the 15
criminal county judges is Hispanic surnamed, none look or sound Hispanic and none
are Hispanic males. When one compares that to the percentage of Hispanics and
Hispanic males and the racial makeup of Harris County, it is an abysmal
statistic…..one that “piles on” this defendant additional unfairness on top of the fact
that the judges cannot seem to abide by existing law regarding Hispanic defendants
and interpreters. In other words, it’s hard enough to get a fair shake when none of the
appellant’s minority peers are sitting in judgment, but then much harder when
appellant cannot count on the system’s units abiding by the mandatory laws that
should guide them. Such law violations cause problems on so many levels. For
example, how can certain justices or this district attorney’s office be involved in
appeals such as this and rule or argue impartially when they are or were once part of
this very problem that has gone on for more than a decade and a half? They were and
are, at minimum, witnesses to this daily crime and at most, participants in the crimes.
The Texas Law of Parties clearly implicates this judge in every single illegal
interpretation as if she had acted alone. Sec. 7.02. of the Penal Code states the
following: CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of
another if:
(1) acting with the kind of culpability required for the offense, he
causes or aids an innocent or nonresponsible person to engage in conduct
prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense; or
(3) having a legal duty to prevent commission of the offense and
acting with intent to promote or assist its commission, he fails to make a
reasonable effort to prevent commission of the offense.
Moreover, attached is a letter dated August 16, 2010 from the Civil Rights
Division of the Department of Justice that explains this issue as well.
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Additionally, in order to avoid criminal law penalties for many years, including
well over a decade while this trial judge sat hearing cases, Texas Attorney General
Opinions JC-0584 and JC-0579, required interpreters to maintain certain licenses.
Texas Government Code (Chapter 57), which happens to be the essence of these
Opinion(s), requires the interpreter maintain the appropriate interpreter license in
order to be qualified to interpret for any Spanish speaker in any case. Finally, a
Defendant in a trial court requires a licensed interpreter so that counsel may render
effective assistance of counsel.
Along those lines and of note is the fact that thousands of guilty pleas from
those accused, for many recent years, were completed illegally in open court in
Harris County, and this court, without licensed interpreters in direct violation of the
Texas Government Code and criminal law. Such violations were Class A
misdemeanors on every occasion subject to jail time for up to one year. Not one
interpreter or judge has been prosecuted for violations of criminal law during these
years. In fact, some judges authorized extra payment to court appointed counsel in
many instances to interpret and violate such criminal law and the Constitutions of this
land. The judge of this court has violated multiple civil and criminal laws for many
years. The motion to recuse should have been granted when counsel filed such on
the basis, among other things, that he was being drawn into the daily criminal
conspiracy, against his will.
The Department of Assistive and Rehabilitative Services certifies Texas
interpreters. Sec. 57.022 of the Government Code states: The department shall
certify an applicant who passes the appropriate examination prescribed by the
department and who possesses the other qualifications required by rules adopted
under this subchapter.
(b) The executive commissioner of the Health and Human Services
Commission by rule shall provide for:
(1) the qualifications of certified court interpreters;
(2) training programs for certified court interpreters each of which is
managed by the department or by a public or private educational institution;
(3) the administration of examinations;
(4) the form for each certificate and procedures for renewal of a
certificate;
(5) the fees for training, examinations, initial certification, and
certification renewal;
(6) continuing education programs under this subchapter;
(7) instructions for the compensation of a certified court interpreter
and the designation of the party or entity responsible for payment of compensation;
and
(8) administrative sanctions enforceable by the department.
Sec. 57.049 of the Government Code states: PROHIBITED ACTS. A
person may not advertise, represent to be, or act as a licensed court interpreter
unless the person holds an appropriate license under this subchapter.
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Sec. 57.050 states (a) A person commits an offense if the person violates
this subchapter or a rule adopted under this subchapter. An offense under this
subsection is a Class A misdemeanor. And again, the Texas Law of Parties
implicates the judge as if illegally interpreting herself.
Therefore, thousands of Class A misdemeanors have been committed in
open court for years in Harris County. Each court generally disposes of several
cases per day that require a licensed interpreter. This takes into consideration plea
bargains only, and not all other formal proceedings before the bench, which also
criminal violations.
Regarding the ruling from the Administrative Judge of the Region, his
ruling as described in Appellant’s “Motion For Reconsideration Of Denial of
Defendant’s Motion to Recuse Trial Judge Pam Derbyshire” that is part of the trial
court’s record, has absolutely has no rhyme or reason and does not apply to the
facts in the original Motion to Recuse at all. It is as if some form was used to try
and apply boiler plate language to this case. While appellant has no yearning to
make efforts to police the judiciary, particularly since his camp is not being paid
like every other person dealing with this document, something must be done since
things have gotten completely out of hand when laws are flouted in open court
daily by public servants on the public payroll.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
grant discretionary review, order full briefs and oral argument and reverse the opinion of
court of appeals.
CERTIFICATE OF COMPLIANCE
I certify that the above document consists of about 3,121 words.
/S/
/S/ Rick Soliz
CERTIFICATE OF SERVICE
I certify that the above document was served on the State of Texas by delivering
copies, to the Harris County District Attorney’s Office, 1201 Franklin, 6th Floor,
Houston, Texas 77002 and the State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711 on this 19th day of March 2015.
Respectfully submitted,
J. Ricardo Soliz and Assoc., P.L.L.C.
/S/________________________
/S/ Rick Soliz,
T.B.N. 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
jrsoliz@att.net
Pro Bono Attorney for Appellant
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Opinion issued December 16, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00851-CR
———————————
ERIK SANTANA GUANCHE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 1869024
MEMORANDUM OPINION
Pursuant to a plea agreement with the State, appellant Erik Santana Guanche
pleaded guilty to a Class B misdemeanor DWI as a first offender. See TEX. PENAL
CODE ANN. § 49.04 (West Supp. 2014). In accordance with the terms of the plea
bargain, the trial court sentenced Guanche to 15 days in the Harris County Jail with
4 days’ credit and imposed a $500 fine. The trial court certified that this is a plea
bargain case, but that matters were raised by written motion filed and ruled on
before trial from which Guanche had the right to appeal. Guanche appeals the
denial of his motion to recuse the trial court judge, requesting that we reverse the
judgment and the denial of the motion to recuse. We affirm.
Background
Guanche was charged by information with Class B misdemeanor DWI as a
first offender. Guanche was released on bond and, as a condition of his release,
was ordered to install an ignition interlock device on his vehicle. After his bond
supervision officer filed a violation report stating that Guanche had failed to pay
administrative fees and tested positive for drug use, the trial court revoked
Guanche’s bail, raised it to $4,000, and amended the conditions of bail to make
them stricter. Guanche’s bond supervision officer later filed a second violation
report stating that Guanche had (1) failed to pay administrative fees, (2) on April
15, 2013, Guanche’s breath alcohol level was measured at 0.040, and (3) Guanche
had attempted to bribe a urinalysis technician with $100. The trial court revoked
Guanche’s bail for a second time, raised it to $8,000, and amended the terms of
bail to make them even stricter.
Guanche then filed a verified motion to recuse the trial court on the grounds
that her “impartiality might be reasonably questioned, [she] has a personal bias or
2
prejudice concerning the subject matter, defense counsel or a party, or the judge
has no regard for Texas law, and there is a strong appearance of impropriety.” The
ground for the motion was that the trial court had tried to “coerce” Guanche’s
counsel to interpret for his Spanish-speaking client in an unrelated matter.
According to Guanche’s counsel, he represented that client in a bond matter before
the trial court, and when Guanche refused to interpret for his client, the trial court
became upset, mocked counsel, and asked counsel why he had not made the
request for an interpreter earlier. Guanche argued that “hundreds, if not thousands,
of guilty pleas from those accused, for many recent years, were completed illegally
in open court in Harris County, and this court, without licensed interpreters, in
direct violation of the Texas Government Code and criminal law.” Thus, Guanche
argued, “the judge is not fit to hear this case regarding this Spanish surnamed
defendant who has retained this same counsel in the current case.”
The trial court declined to recuse herself and referred the motion to the
Presiding Judge of the Second Administrative Judicial Region, Olen Underwood.
Presiding Judge Underwood denied the motion. Guanche pleaded guilty before a
different trial court judge and was sentenced in accordance with his plea
agreement.
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Discussion
In his sole issue on appeal, Guanche urges us to reverse the judgment on the
grounds that the trial court and Presiding Judge Underwood erred in denying his
motion to recuse.
A. Standard of Review
We review an order denying a motion to recuse under an abuse-of-discretion
standard. TEX. R. CIV. P. 18a(j)(1)(A); see Abdygapparova v. State, 243 S.W.3d
191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The court abuses its
discretion if its ruling is outside the “zone of reasonable disagreement” or if it fails
to apply proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289, 306
(Tex. Crim. App. 1992); Abdygapparova, 243 S.W.3d at 197–98.
B. Applicable Law
Texas Rule of Civil Procedure 18(b) provides that a judge must recuse if,
among other things (1) the judge’s impartiality might reasonably be questioned or
(2) the judge has a personal bias or prejudice concerning the subject matter or a
party. TEX. R. CIV. P. 18b(b)(1)–(2). Under Rule 18(b)(1), a judge’s impartiality
might reasonably be questioned if she “harbors an aversion, hostility or disposition
of a kind that a fair-minded person could not set aside when judging the dispute.”
Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim. App. 2011); see TEX. R. CIV.
P. 18b(b)(1). “Rule 18(b)(2) is more specific: It covers how the judge feels and
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what the judge knows,” such as when a judge has personally observed the conduct
that led to a defendant’s detention. Gaal, 332 S.W.3d at 453; see TEX. R. CIV.
P. 18b(b)(2).
Recusal generally is not required when the judge is accused of a personal
bias based solely on her judicial rulings, remarks or actions. See Gaal, 332 S.W.3d
at 453–54. However, when the judge’s remarks reveal an opinion based on an
extra-judicial source (sometimes referred to as “personal” bias), recusal could be
warranted. See id. at 453–54. In either case, if the comments or actions reveal
“such a high degree of favoritism or antagonism as to make fair judgment
impossible,” then recusal is required. See id. at 454 (quoting Liteky v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)).
The party seeking recusal must establish that a reasonable person, knowing
all the circumstances involved, would have doubts as to the impartiality of the
judge. See Kemp, 846 S.W.2d at 305; Abdygapparova, 243 S.W.3d at 198. The
evidence must be sufficient to overcome the presumption of judicial impartiality.
See Kemp, 846 S.W.2d at 306; Abdygapparova, 243 S.W.3d at 198–99. Further,
the bias must be “of such nature, and to such extent, as to deny the defendant due
process of law.” Kemp, 846 S.W.2d at 305; see also Abdygapparova, 243 S.W.3d
at 199 (noting that this is a “high standard”). In order to meet the standards for a
recusal motion, the motion, among other things, must include verified allegations
5
that “if proven, would be sufficient to justify recusal . . . .” TEX. R. CIV.
P. 18a(a)(4)(C).
C. Analysis
On appeal, Guanche argues that the trial court violated Texas Code of
Criminal Procedure article 38.30, the Texas and U.S. Constitutions, various Texas
and federal statutes and common law doctrines, ethics rules, attorney general
opinions, Harris County’s “settlement agreement . . . with the Texas Civil Rights
Project,” and “potential appellate reversals.” App. Br. 6–7. He does not specify
how any of these were violated, but the gravamen of his complaint is that the trial
court violated Texas law in an unrelated proceeding by trying to coerce Guanche’s
counsel to interpret for his Spanish-speaking client in that case. In his point of
error, he asserts that “[t]he trial court erred in refusing to recuse itself after multiple
open court efforts by the court to have defense counsel violate Texas criminal law
by interpreting for the defendant, before the court, on issues of bail, without the
required license; and the Presiding Judge of the Administrative Region erred in
denying the related Motion to Recuse.” We reject Guanche’s argument that the
trial court erred in refusing to recuse and that Presiding Judge Underwood abused
his discretion in denying Guanche’s motion to recuse.
Guanche’s motion alleged that the trial court was required to recuse herself
in his case because he has a Spanish surname. However, Guanche did not connect
6
the allegations in his motion regarding the trial court’s alleged remarks and actions
with respect to an interpreter in the unrelated case to anything in his own case. On
appeal, he argues that failure to provide a licensed interpreter is a due process
violation. But although he alleged in his motion to recuse that recusal was required
because he had a Spanish surname, he did not represent that he was not fluent in
English or ever required, let alone had been denied, the assistance of an interpreter.
In short, even if the trial court had illegally denied a Spanish-speaking defendant
the use of an interpreter in another case, the mere fact that Guanche has a Spanish
surname does not support a claim that the trial court was biased against him or
could not impartially judge his case. Thus, he alleged nothing to show that the trial
court “harbor[ed] an aversion, hostility or disposition of a kind that a fair-minded
person could not set aside when judging [his] dispute.” Gaal, 332 S.W.3d at 453
(judge’s impartiality might reasonably be questioned “only if it appears that he or
she harbors an aversion, hostility or disposition of a kind that a fair-minded person
could not set aside when judging the dispute”) (emphasis added). Likewise, his
allegations do not demonstrate bias “of such nature, and to such extent, as to deny
[him] due process of law,” because they do not suggest that the trial court had an
opinion about the merits of Guanche’s case that stemmed from an improper source.
Kemp, 846 S.W.2d at 305–06 (for alleged bias to properly form basis for recusal, it
“must stem from an extrajudicial source and result in an opinion on the merits on
7
some basis other than what the judge learned from his participation in the case”).
Thus, his motion did not contain facts that “if proven, would be sufficient to justify
recusal.” TEX. R. CIV. P. 18a(a)(4)(c). Accordingly, we hold that the trial court did
not err in refusing to recuse and that Presiding Judge Underwood did not abuse his
discretion in denying the motion to recuse. See TEX. R. CIV. P. 18a(j)(1)(A);
Kemp, 846 S.W.2d at 306.
We overrule Guanche’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Justice Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).
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