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
Jesse Smith v. State
Combined Opinion