EX PARTE JOHN THUESEN, Applicant
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.1
In May of 2010, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Thuesen v. State, No. AP-76,375 (Tex. Crim. App. Feb. 26, 2014) (not designated for publication). Applicant filed in the trial court his initial application for a writ of habeas corpus on October 10, 2012, alleging twenty-two claims for relief. On April 26, 2013, Judge Travis Bryan signed an order designating issues specifying that Applicant's claims one through nineteen had factual issues that needed to be resolved. Judge Bryan ordered that an evidentiary hearing be conducted and subsequently scheduled the evidentiary hearing to commence on December 10, 2013.
However, on November 18, 2013, Judge Bryan signed a written order recusing himself from the “writ hearings” in applicant's case, but “not from the retrial of the underlying criminal case.” Judge Bryan gave no reason for the recusal in his order, but requested that the Presiding Judge of the Second Administrative Judicial Region, The Honorable Olen Underwood, appoint another judge to preside over applicant's case. See TEX. GOV. CODE § 24.002 (“If a district judge determines on the judge's own motion that the judge should not sit in a case pending in the judge's court because the judge is disqualified or otherwise should recuse himself or herself, the judge shall enter a recusal order, request the presiding judge of that administrative judicial region to assign another judge to sit, and take no further action in the case except for good cause stated in the order in which the action is taken․”).
Applicant's habeas counsel responded via email to Judge Bryan's recusal order, stating that counsel would “like to avoid the Court recusing itself from the case, if possible, because of the Court's deep knowledge and prior experience.” Judge Bryan responded in an email, stating that he was recusing himself because he had donated $1,000 to the judicial campaign of applicant's trial attorney, Michele Esparza. He further stated that Esparza had worked for him for six years and that he had tried several high profile cases with applicant's other trial attorney, Billy Carter. See TEX. R. CIV. P. 18b(b)(1), (2), (4) (stating in part that a trial judge “must recuse” in any proceeding in which: “(1) the judge's impartiality might reasonably be questioned; (2) the judge has a personal bias or prejudice concerning the subject matter or a party; ․ [or] (4) the judge or a lawyer with whom the judge previously practiced law has been a material witness concerning the proceeding”).2
Despite signing the written order of recusal, Judge Bryan indicated via email that he would “reconsider” his recusal “if BOTH sides request.” Applicant's counsel replied that they had consulted with applicant and he agreed with their request for Judge Bryan to reconsider his recusal. The State's attorney responded that the State's position was that Judge Bryan should proceed with the voluntary recusal. Judge Bryan's court coordinator then notified the parties the same day that the judge was going forward with the recusal.
On November 20, 2013, Presiding Judge Underwood's assistant sent a letter from Judge Underwood's office to Senior Judge H. R. Towslee transmitting assignment order #24920, “to hear Cause No. 09-02136-CRF-272-A; State of Texas vs. John Darrell Thuesen and to dispose of any other business requested by the court.” In the accompanying order signed by Judge Underwood on November 18, 2013, the presiding judge assigned Senior Judge Towslee to preside over the 272 nd District Court starting on December 10, 2013, “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.” The order provided that Judge Towslee's “assignment shall continue as may be necessary for the assigned Judge to dispose of any accumulated business and to complete trial of any case or cases begun during this assignment, and to pass on motions for new trial and all other matters growing out of accumulated business or cases heard before the Judge herein assigned, or until termination by the Presiding Judge.” Judge Towslee signed an order on November 22, 2013, rescheduling the evidentiary hearing in this case.
On March 13, 2014, applicant filed a motion to “Reassign Original Trial Court Judge,” asserting that Judge Bryan's conflict of interest leading to the recusal had “been resolved.” The proposed order for Judge Underwood's signature attached to applicant's motion is unsigned. The next day, Judge Bryan sent an email from his personal email address to the 272nd District Court coordinator regarding “11.07 [sic] capital writ in Thuesen case,” stating:
Judge Underwood called this morning and advised me that if I am willing, since I originally recused myself, I can now enter an order withdrawing my own recusal order. This would put me back on the capital writ hearing. I told him I would do this on Monday. The reason I will is because my original recusal reason, [Esparza's] campaign and my donation to her, is now moot. He said it will then fall on either of the parties to object to my presence in the case. He believes this is the proper procedure. If anyone objects, Judge Underwood or his designee will then hear the involuntary recusal motion.
By copy of this email, you may notify both sides and Judge Towslee of my intent. Please copy Judge Underwood also to confirm my conversation with him. I will enter the order on Monday. Travis Bryan III.
Judge Bryan's court coordinator forwarded Judge Bryan's message to email addresses corresponding to counsel for both sides, Judge Towslee, and Presiding Judge Underwood. The prosecutor responded on March 17th with the following objection: “The State must respectfully object due to potential claims on this issue being raised post state writ.”
Judge Bryan's court coordinator arranged a “phone conference hearing on the Motion (to withdraw the recusal) and the State's objection.” Judge Bryan presided over the telephonic hearing regarding his own reinstatement on March 17th , and counsel for the State and for Applicant participated in the hearing. The record reflects that applicant, Presiding Judge Underwood, and Judge Towslee were not present. The prosecutor articulated the State's objections at the hearing, arguing that the fact that Esparza lost the election did not change the State's concern about a “perception of bias” and the “appearance of impropriety,” which originally necessitated Judge Bryan's voluntary recusal. The prosecutor expressed concern that these issues could lead to future claims of error raised by applicant in his federal writ. Applicant's counsel argued that, since the primary was over and Esparza was not running a current campaign, there were “just no grounds for a public appearance of impropriety.” They asserted that Judge Bryan's presiding over the case could not possibly give rise to any cognizable claim in federal court.
Judge Bryan stated at the hearing that he felt that he could be “100 percent fair in spite of [Esparza's] presence in the campaign and [his] donation to her.” He concluded, “So the reason being gone as to why I would recuse myself in the first place, I do now withdraw my recusal. I overrule the State's objection. And according to Judge Underwood [I] am now back on this case.” Judge Bryan did not address any other ground for his recusal, other than his campaign contribution to Esparza. He instructed the State's attorneys that they would have to file a motion for involuntary recusal to object to his reinstatement.
The next day, March 18, 2014, Judge Bryan signed a written order stating,
On March 17, 2014, I withdraw my order of voluntary recusal. The reason for the original recusal is now moot. The State has objected to this action. I overrule the State's objection. The Texas Office of Capital Writs has advised that they have no objection to this Order, which will reinstate me as the Judge of the case. The State still has a remedy which is to seek an involuntary recusal of me.
The order specified a copy would be provided to Presiding Judge Underwood.
Also on March 18, 2014, the prosecutor sent an email to applicant's counsel, Judge Bryan's court coordinator, Presiding Judge Underwood, and Judge Towslee, stating:
The State of Texas no longer has any objections relating to you presiding over the John Thuesen writ. Based on further research and contact with a number of experts in the area of federal writs, the statements and assurances made by the Office of Capital Writs in the telephone hearing yesterday, March 17, 2014, are sufficient to alleviate our concerns about their motives for having you preside. With those issues resolved, our original desire to have you preside can now be realized without any apprehension of future legal ramifications.
Judge Bryan subsequently presided over a five-day evidentiary hearing on June 9th through 13th , 2014, in which Esparza and Carter testified, along with other witnesses. On July 17, 2015, Judge Bryan entered an order adopting findings of fact and conclusions of law, which appears to be a duplicate copy of applicant's proposed findings of fact and conclusions of law containing Judge Bryan's hand-written amendments. These findings and conclusions recommend granting relief to applicant on some of his claims, but only as to the punishment phase of his trial.
On February 24, 2016, this Court entered an order stating that this case would be filed and set. We directed the parties to brief three questions pertaining to Judge Bryan's voluntary recusal and his authority, if any, to reinstate himself as judge presiding over the instant habeas case.3 The parties have now filed responsive briefs in this Court addressing the three questions we posed.4 Applicant essentially argues that Judge Bryan merely “effected his reinstatement in response to Judge Underwood's directives.” Applicant contends that no legal authority required Judge Underwood's “directives” to be memorialized in a written order and Judge Bryan's email discussing his telephone conversation with Judge Underwood was “sufficient” to memorialize the regional presiding judge's “directives.” Applicant further argues in a reply brief that the State “ultimately sanctioned” the reinstatement of Judge Bryan by retracting its objection.
Rule of Civil Procedure 18a authorizes a regional presiding judge, in the context of a recusal proceeding, to “issue interim or ancillary orders in the pending case as justice may require.” TEX. R. CIV. P. 18a(g)(4). Rule 18a also provides that a ruling of the regional presiding judge “must be by written order.” TEX. R. CIV. P. 18a(g)(2); see also State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 2012) (“An oral ruling is not ‘an order’ for the purposes of establishing the decision of the trial court, precisely because of the fallibility of human memory. Further, without ‘an order,’ we have no evidence of the required finality of a ruling; an oral ruling is subject to change after further discussion or presentation of contrary law or precedent.”); Westbrook v. State, 753 S.W.2d 158, 159, n. 1, 160 (Tex. Crim. App. 1988) (adopting opinion of Clinton, J., concurring) (“A court ‘renders' a judgment or order when, orally in open court or by written memorandum signed by him and delivered to the clerk, the judge pronounces, states or declares a decision of the law upon given state of facts․ Once rendered, a decision must be ‘entered’ of record; that is, it will be ‘spread upon the record’ of the court by the clerk.”).
The record before us includes no written order signed by Judge Underwood, no letter order issued by Judge Underwood and placed among the papers of the cause, and further no oral order announced by Judge Underwood on the record in open court, which purports to remove Judge Towslee and reinstate Judge Bryan. Therefore, we now order Presiding Judge Underwood to conduct a review of the filings, records, and transcripts of the proceedings in this habeas case to locate any record of an order rendered by Judge Underwood removing Judge Towslee and reinstating Judge Bryan, if any such order exists.
Presiding Judge Underwood shall resolve the issue described above within 15 days of the date of this order. A supplemental clerk's record or reporter's record containing any pertinent documents and rulings, or a statement by Judge Underwood that no such records exist, shall be returned to this Court within 30 days of the date of this order.5
IT IS SO ORDERED THIS THE 21st DAY OF SEPTEMBER, 2016.
1. All references to articles refer to the Texas Code of Criminal Procedure unless otherwise stated.
2. Rule 18a provides the procedure for the recusal and disqualification of trial court judges and Rule 18b sets out the grounds that form the basis for recusals under Rule 18a. See TEX. R. CIV. P. 18a, 18b. This Court has held that these general civil procedures for recusal apply in criminal cases and in habeas proceedings in the trial court. See Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex. Crim. App. 2010) (holding that TEX. R. CIV. P. 18a “applies in habeas proceedings that occur before the trial court”); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (stating that TEX. R. CIV. P. 18a “applies to criminal cases absent ‘any explicit or implicit legislative intent indicating otherwise’ ”). Additionally, TEX. GOV. CODE § 24.002, cited above, mandates procedures that must be followed when a district judge, such as Judge Bryan, voluntarily recuses himself on his own motion.
3. In relevant part, this Court's order requested briefing on the following three questions:1. In the absence of any subsequent written order signed by Judge Underwood, did Judge Bryan have judicial authority to sign and execute an order reinstating himself on applicant's habeas case and, if he did have such authority, what was the legal basis for that authority?2. What is the meaning of the term “good cause” in the context presented? Did Judge Bryan's reinstatement order show “good cause” for him executing the order, rather than Judge Towslee or Presiding Judge Underwood? Can “good cause” as stated in TEX. R. CIV. P. 18a(f)(2) justify a recused judge removing his assigned replacement judge and reinstating himself to take all further actions in a case?3. If Judge Bryan lacked the authority to reinstate himself as judge presiding over the instant habeas case, and his action cannot be justified by “good cause” as provided in TEX. R. CIV. P. 18a(f)(2), are his rulings while presiding over the evidentiary hearing, other orders he executed in this case after his recusal, and his order adopting findings of fact of fact and conclusions of law “void and of no effect”?
4. Applicant, who is now represented by different attorneys than those who litigated his habeas hearing, has also filed in this Court objections to portions of Judge Bryan's findings of fact and conclusions of law. Applicant argues that his previous habeas attorneys made “mistakes in the proposed findings of fact and conclusions of law” which were “replicated” in Judge Bryan's findings of fact and conclusions of law. Applicant contends that there was no strategic rationale for his previous habeas attorneys to have narrowed the scope of the relief they requested to the punishment phase on many of his claims for relief.
5. Any extensions of this time period shall be obtained from this Court.