John Andy Galvan v. The State of Texas--Appeal from 262nd District Court of Harris County

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No. 08-04-00268-CR


Appeal from the


262nd District Court


of Harris County, Texas


(TC# 952651)




This is an appeal from a jury conviction for the offense of murder. The jury assessed punishment at seventy-five years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of conviction.


On the morning of June 6, 2003, Gerladine Gonzalez was found in Milby Park in Houston, Texas. She had been shot. She lived in a coma for several weeks until her death on July 12, 2003. She never regained consciousness. Both Appellant and an individual named Edwin Escobedo were arrested on aggravated assaulted charges which were later upgraded to murder charges when the complainant died.

The guilt-innocence stage of trial began on June 7, 2004, and ended on June 9. At trial, Hilda Moreno, an admitted prostitute and cocaine addict, testified that she met the deceased complainant one month prior to her death. They would party together which involved getting high on crack cocaine.

Moreno was the sole eyewitness for the State to the murder, and she testified regarding Appellant s involvement in the murder. Moreno stated that initially, she did not cooperate with the State in the murder investigation. She was arrested on a prostitution charge on November 25, 2003, and the State placed a material witness bond on her so she could not get out of custody. Moreno testified that she had been in custody for six and a half months prior to giving her testimony at trial. She testified that was beyond the time she would have served for a misdemeanor prostitution conviction. Moreno testified that she did not receive any threats or offers of beneficial treatment such as dismissing her case in exchange for her testimony. The jury rendered a verdict of guilty and assessed punishment at seventy-five years imprisonment. The next day, the State dismissed Moreno s prostitution case.

On July 9, 2004, Appellant filed a motion for new trial asserting that the State s principle witness, Moreno, committed perjury by denying that the State had made a deal with her in exchange for her testimony against Appellant. On July 12, 2004, Appellant requested that the trial court s process server serve several witnesses with subpoenas; those witnesses included: the State s principal witness, Hilda Moreno, Terry Cornelius (Moreno s defense attorney on the prostitution case), Vanessa Velasquez (one of the assistant district attorneys who handled the murder case), the custodian of records for the Harris County District Attorney s Office asking for production of the State s file against HILDA MORENO, cause no. 1206537, disposed in County Criminal Court-at-Law No. 5 on June 10, 2004, and the District Attorney s Office Policy Manual, specifically, the portion of the manual as it relates to the required disposition of prostitution cases.

On July 16, 2004, Appellant filed a motion to recuse the trial court judge asserting that the judge had violated his due process rights by improperly quashing the subpoenas, or by instructing the process server to ignore the subpoena requests. On July 21, 2004, the trial judge held a hearing on the motion for new trial. The trial judge stated that the hearing would be conducted by affidavits. However, once he learned that a motion to recuse him from the case had been filed, he ended the hearing and referred the matter to an administrative judge.

On July 29, 2004, a hearing on the motion to recuse was heard before Judge Olen Underwood. Appellant argued that the trial judge s actions in quashing the subpoenas denied him the opportunity to present evidence at the hearing on his motion for new trial thereby demonstrating judicial bias. The State argued that Appellant s motion to recuse failed to establish that the trial court s actions were the result of extrajudicial bias; a requirement for the recusal of a judge. Judge Underwood denied Appellant s motion to recuse.

On August 5, 2004, the original trial judge resumed the hearing on Appellant s motion for new trial. The trial court informed Appellant that he conducted all his motions for new trial by affidavit and inquired as to whether Appellant had any affidavits to present in furtherance of his motion. Appellant s counsel replied that the only affidavit he had was his original affidavit attached to the motion for new trial which had already been filed. // The State then presented the affidavits of Moreno, Moreno s attorney, the prosecutor in Appellant s case, and the other prosecutor in Appellant s case. Viewed as a whole, these affidavits contradicted Appellant s claims in his motion for new trial that Moreno had received a deal for her testimony. The affidavits indicated that Moreno s case had been dismissed solely because she had served more than the maximum time in jail for her prostitution case while awaiting to testify in Appellant s case. The affidavits were admitted into evidence over Appellant s objection. Appellant then introduced an organization chart of the Harris County District Attorney s Office into evidence and it was admitted without objection. Appellant did not present any other evidence.

During closing arguments, Appellant s counsel told the trial court that he objected to the court s denying him an opportunity to supplement the appellate record. The following exchange then occurred:

COURT:First of all, Mr. Suhler, I m not denying you anything. You could have put anything you wanted in the form of affidavits for this hearing. That is only limited by limitations you placed on yourself. I certainly in no way limited any evidence you put in the form of affidavits. I don t know where you got that idea; but, no, sir, I did not do that. . . .

DEFENSE:The basis of that observation, Your Honor, is that the Court sua sponte quashed my subpoenas issues several weeks prior to this date, so that I could have those documents produced.

COURT:So, the record will be clear, the Court had the process server contact you to contact the Court. You assured that process server that you would do it, and then this Court never heard from you for a period of about a week, because this Court was going to ask you, should I have these people here, should we serve them personally to have them here for the hearing, or do you want an affidavit by them? I never heard anything. That was my fault for not just immediately issuing them, but certainly I did not sua sponte quash anything. . . .

DEFENSE:Well, Your Honor, the subpoenas were validly filed. I would ask the Court to please accept the fact that this is not my only case. For the last couple of weeks, I ve been practicing on multiple cases in other counties.

COURT:I ll take judicial notice of that. I have to [sic] doubt of that, sir.

The court denied Appellant s motion for new trial.


In Appellant s Issue No. One, he maintains that the trial court erred in sua sponte ordering a process server not to serve subpoenas issued by Appellant for witnesses to appear at a hearing on his motion for new trial. The right to compulsory process is not absolute, and questions as to limitations on the right are addressed to the trial court s discretion. See Rodriguez v. State, 90 S.W.3d 340, 358 (Tex. App.--El Paso 2001, pet. ref d); Muennink v. State, 933 S.W.2d 677, 684 (Tex. App.--San Antonio 1996, pet. ref d). Further, the right to compulsory process is dependent upon an accused s initiative, and the nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct by the defendant. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653-54, 98 L. Ed. 2d 798 (1988); Rodriguez, 90 S.W.3d at 358.

Texas Rule of Appellate Procedure 21.7 allows the trial court in criminal cases to receive evidence on a motion for new trial by affidavit or otherwise. Tex. R. App. P. 21.7; Young v. State, 177 S.W.3d 136, 142 (Tex. App.--Houston [1st Dist.] 2005), rev d on other grounds, 137 S.W.3d 65 (Tex. Crim. App. 2004). In this case, Appellant was informed at the first hearing on his motion for new trial that the court was requiring affidavits. The record reflects that the trial court was inquiring as to what Appellant was intending to gather from the subpoenaed witnesses before they were issued. There is nothing in the record to indicate that Appellant attempted to obtain affidavits from his witnesses nor is there any indication that Appellant would be unable to obtain the testimony he needed through affidavits. Furthermore, there is nothing to indicate that the trial court prevented Appellant from presenting any evidence--just the form of that evidence. We find that the trial court did not deny Appellant his right to compulsory process. Issue No. One is overruled.

In Issue No. Two, Appellant asserts that the court erred in denying his motion to recuse the trial court judge. When we review an order denying a motion to recuse, we overturn the order only if the trial court abused its discretion. See Tex. R. Civ. P. 18a(f); see also Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding Rule 18a applicable to criminal cases). The trial court abuses its discretion only if the ruling on the motion was not within the zone of reasonable disagreement. See Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992). We consider the totality of the evidence elicited at the recusal hearing. See id.

Recusal is appropriate if the movant has provided enough facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court, but only when the bias is of such a nature and extent as to deny the movant due process of law. Id. at 305. Moreover, the bias must have come from an extrajudicial source and result in an opinion on the merits of the case other than what the judge learned from participating in the case. Id. at 306.

The grounds for Appellant s motion to recuse the trial court judge centered around Appellant s accusation that the judge sua sponte quashed his subpoenas for the motion for new trial. We fail to see nor does the record disclose that the policy of utilizing affidavits in hearings on motions for new trial relates to any bias emanating from an extrajudicial source. Appellant asserts that he was never afforded the chance to explain why he needed live witness testimony at the hearing. However, the record does not indicate he was prevented from doing so. We find that the recusal court did not abuse its discretion in denying Appellant s motion to recuse. Issue No. Two is overruled.


Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.



June 8, 2006


Before Barajas, C.J., McClure, and Chew, JJ.


(Do Not Publish)