Terry Arvil Mann v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00157-CR

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TERRY ARVIL MANN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 17,741-2003

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Armed with information obtained from the recently arrested Mickey Durham, an acquaintance of Terry Arvil Mann, law enforcement officers arrested Mann with over thirteen grams of methamphetamine in his possession. Mann appeals his conviction of possessing a controlled substance with intent to deliver. //

In two points of error, Mann attacks the decision not to recuse the trial judge who presided over Mann's trial and the trial court's having certain hearings without Mann being present. We affirm the judgment because (1) there was no abuse of discretion in not recusing the trial judge, and (2) conducting a pretrial hearing without Mann present was harmless.

(1) There Was No Abuse of Discretion in Not Recusing the Trial Judge

In his first point of error, Mann contends that assigned judge Richard Bosworth erred when he denied Mann's motion to recuse the trial judge, Timothy Boswell. We overrule this point of error because Judge Bosworth did not abuse his discretion in denying the motion.

The day before Mann's arrest, officers with the Wood County Sheriff's Office arrested Durham for possession of methamphetamine. Durham agreed to become a confidential informant in exchange for more lenient treatment. The next day, under the supervision of Wood County law enforcement personnel, Durham bought an "8-ball" of methamphetamine from Mann for $200.00. Mann was arrested a short time later with 13.52 grams of methamphetamine and the $200.00 "buy money" in his possession. The resulting charge for possession of a controlled substance with intent to deliver was set in the 402nd Judicial District Court, over which Judge Timothy Boswell presided.

Durham was later indicted in the 402nd Judicial District Court on his own possession charge. Durham agreed to testify for the State in Mann's trial in return for a recommendation of community supervision. Law enforcement officials feared Mann might attempt to harm Durham, so they placed Durham in an undisclosed location to protect him. They also arranged to delay Durham's case.

The Wood County district attorney asked Judge Boswell's assistant to remove Durham's case from the docket so Durham would not have to appear publicly in court. Durham's case was removed from Judge Boswell's docket several times while Mann's case was still pending. On one occasion, Durham faxed a pro se motion for continuance and Judge Boswell sealed the motion to protect the secrecy of Durham's location. Durham never retained counsel during this time.

Before trial began, Mann filed a motion to recuse Judge Boswell. The motion was premised on Judge Boswell's actions relating to Durham. Judge Boswell referred the motion to the presiding judge of the administrative judicial district, who appointed Judge Richard Bosworth to conduct a hearing and rule on the motion. Judge Bosworth denied the motion.

We review the denial of a motion to recuse for abuse of discretion. See Tex. R. Civ. P. 18a(f); Vickery v. Vickery, 999 S.W.2d 342, 349 (Tex. 1999) (op. on reh'g); McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App. Houston [1st Dist.] 1995, writ denied). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge does not demonstrate such an abuse. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Mosley v. State, 141 S.W.3d 816, 834 (Tex. App. Texarkana 2004, pet. ref'd).

A judge should be recused in any proceeding in which the judge's impartiality might reasonably be questioned. See Tex. R. Civ. P. 18b(2)(a). In determining whether a judge's impartiality might be reasonably questioned, the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge is actually impartial. Kirby v. Chapman, 917 S.W.2d 902, 908 (Tex. App. Fort Worth 1996, no pet.). The inquiry focuses on the conduct of the judge, not that of any third party. Id. Mann contends Judge Boswell's impartiality was questionable because, he asserts, the judge gave extraordinary and preferential treatment to a witness for the State.

Judge Boswell testified at the hearing. He said it was not unusual for him to remove a confidential witness from the docket and substantially delay their case to protect the witness' safety. The judge testified he did not know Durham was connected to Mann's case. He said he did not have any direct conversations with the district attorney's office about either Durham or Mann. This testimony was corroborated by the district attorney. Judge Boswell stated he did not have any bias, ill will, or prejudice against Mann. He also stated he had not formed any opinion relating to the case, had not prejudged Mann's guilt or innocence, and had not given any favors to the State or the defense.

We find the testimony and evidence presented at the hearing on the motion to recuse was sufficient to allow Judge Bosworth to reasonably conclude that Judge Boswell's impartiality was not in question. There was no abuse of discretion. We overrule Mann's first point of error. //

(2) Conducting a Pretrial Hearing Without Mann Present Was Harmless

In his second point of error, Mann contends the trial court committed reversible error by conducting a pretrial hearing without Mann being present. While error appears here, we hold that the error was harmless.

Just before voir dire, the trial court held a hearing in chambers with the attorneys for both sides, but without Mann. This hearing covered several matters, including: (1) deciding whether the district clerk could continue to perform her duties although she was under subpoena duces tecum for documents concerning Durham's location; (2) a motion in limine filed by the State in which the only contested matters concerned the parties' ability to mention certain matters relating to Durham and whether Mann may have been entrapped; (3) Mann's request that the jury assess punishment; (4) Mann's motion in limine to prevent the State from introducing extraneous offenses; and (5) Mann's request that the State notify him before introducing into evidence any of Mann's prior offenses.

Mann had a statutory right to be present at this pretrial proceeding. See Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). Because Mann had a statutory right to be present at the hearing, it was error for the court to conduct the hearing without him. Next, we must determine whether this error resulted in harm.

When reviewing nonconstitutional error, we disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error did not influence the jury, or had but a slight effect, the court must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

In addition to the usual harm analysis, the Texas Court of Criminal Appeals has adopted the "reasonably substantial relationship" test to use when conducting a harm analysis for an Article 28.01 violation. Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993). The "reasonably substantial relationship" test focuses on the effect of the error on the advancement of the defendant's defense. Id. Under this test, the defendant's presence must bear a reasonably substantial relationship to the opportunity to defend. Id.

The "reasonably substantial relationship" test is also used to determine if a defendant's right to be present under the Sixth Amendment to the United States Constitution has been violated. Routier v. State, 112 S.W.3d 554, 576 (Tex. Crim. App. 2003); see Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975). If a constitutional violation has occurred, the case must be reversed unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a).

A defendant's constitutional right to be present during certain stages of criminal proceedings is rooted in the Confrontation Clause of the Sixth Amendment and in the Due Process Clause. United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985) (per curiam). The Due Process Clause applies in lieu of the Sixth Amendment in situations where the defendant is not specifically confronting witnesses or evidence against him. Id. It requires a criminal defendant's presence "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder v. Massachusetts, 291 U.S. 97, 108, 78 L. Ed. 674, 54 S. Ct. 330 (1934) (Cardozo, J.); United States v. Rosario, 111 F.3d 293, 298 (2d Cir. 1997).

United States v. Jones, 381 F.3d 114, 121 22 (2d Cir. 2004).

The Texas Court of Criminal Appeals has held that a defendant's absence at a pretrial proceeding does not bear a reasonably substantial relationship to the opportunity to defend where defendant's insight is not needed for the trial court to rule on the issues presented and where the defendant does not have any information, not available to the attorneys or the court, regarding any of the matters discussed at the proceeding. Adanandus, 866 S.W.2d at 220. There is no indication that any insight possessed by Mann would have helped his defense either at the hearing or at any later time.

At the pretrial hearing, Mann's counsel informed the trial court that Mann had filed an election to have the jury assess punishment. Toward the end of trial, he changed his election, with the State's consent, and chose to have the trial court assess punishment. This change was made after Mann's counsel discovered that Mann had previously been convicted of a felony and was, therefore, not eligible to receive a recommendation of community supervision from the jury. Mann contends his defense was harmed because, at the pretrial hearing, he could not tell his attorney about the previous conviction. Mann argues that, had he been present, he would not have elected initially to have the jury assess punishment and that, with a different initial election, he could have selected from a wider range of jurors, not just those jurors willing to consider community supervision.

The record affirmatively shows, however, that Mann did consult with his counsel before making his initial election to have the jury assess punishment. During the pretrial hearing, Mann's attorney told the trial court regarding the election, "In the last two hours we've been discussing with our client that change and procedure here." Mann also executed an affidavit in which he swore he had never before been convicted of a felony. Further, Mann's attorneys were only informing the trial court of Mann's already-filed election, not making an election at that time. The trial court did not and was not required to make any ruling on Mann's election. The court said in Adanandus, "We cannot envision how appellant's presence could have furthered his defense." Id. Nor can we, in this case.

The pretrial's only contested matters decided against Mann dealt with two paragraphs of the State's motion in limine. As to those items, the trial court ruled that both parties must approach the bench before anyone could mention anything related to the subpoena issued to the district clerk or to any sealed or secret documents relating to Durham. There is no assertion or evidence that Mann possessed any information not available to his attorneys or the trial court relating to those matters. And we note that simply requiring a party to approach the bench before broaching a subject in the jury's presence is inherently nonprejudicial.

We hold that Mann's absence at the pretrial hearing in question did not bear a reasonably substantial relationship to his opportunity to defend. Accordingly, we hold that the violation of Mann's statutory right under Article 28.01 of the Texas Code of Criminal Procedure was harmless and that, beyond a reasonable doubt, Mann suffered no harm from not being present at that pretrial hearing. We overrule Mann's second point of error.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 14, 2006

Date Decided: June 23, 2006

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