Mid-Continent Group, D/B/A Mid-Continent Casualty and Mid-Continent Insurance v. Kenneth Goode

NO. 07-09-0181-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D OCTOBER 16, 2009 ______________________________ MID-CONTINENT GROUP D/B/A MID-CONTINENT CASUALTY AND MID-CONTINENT INSURANCE, APPELLANT V. KENNETH GOODE, APPELLEE _________________________________ FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2006-536,112; HONORABLE RUBEN REYES, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ORDER OF ABATEMENT AND REMAND Appellant, Mid-Continent Group, d/b/a Mid-Continent Casualty and Mid-Continent Insurance, appeals an adverse judgment rendered in favor of Appellee, Kenneth Goode, on March 6, 2009. Appellant timely filed notice of appeal on June 4, 2009. The Clerk’s Record was filed on August 4, 2009. On August 28, 2009, Susan Myatt, CSR, filed seven of eight volumes of the Reporter’s Record. Volumes one through six consists of a Master Index (Volume 1), pretrial proceedings on September 14 and 19, 2007, (Volumes 2 and 3 respectively), as well as trial proceedings on September 22, 23, and 24, 2007, (Volumes 4, 5, and 6 respectively). Volume 6 concludes with the return of the jury’s verdict and discharge of the jury by the court. Volume 8 is a record of exhibits. At the time of the filing of the Reporter’s Record, this Court was informed that Volume 7 would be prepared by a different court reporter, Lindi Reeves, who had substituted for the original court reporter during a post-trial proceeding on November 7, 2008. We have now received a sworn affidavit from Lindi Reeves, entitled Affidavit Regarding Lost/Stolen Notes, wherein she states that the entire record of proceedings for November 7, 2008, was lost when her vehicle was broken into and her stenography machine stolen. Her affidavit is supported by a police report. An appellant is entitled to a new trial if the appellant has timely requested a reporter’s record; if, without the appellant’s fault, a significant portion of the court reporter’s notes and records has been lost; if the lost portion of the record is necessary to the appeal’s resolution; and if the lost portion of the reporter’s record cannot be replaced by agreement of the parties. Tex. R. App. P. 34.6(f). The issues of significance, necessity, and replaceability are matters that this Court cannot fully determine from the record presently before us. Therefore, in the interest of justice, we now abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine the following questions: (1) What was the purpose of the November 7, 2008 hearing? (2) Was any evidence presented during the November 7, 2008 hearing; and, if so, what was the nature of that evidence? (3) If evidence was presented during the November 7, 2008 hearing, can that portion of the reporter’s record be replaced by agreement of the parties? The trial court is further ordered to execute findings of fact, conclusions of law, and any orders it may deem necessary regarding the aforementioned issues and cause its findings, conclusions, and orders, if any, to be included in a supplemental clerk’s record. A supplemental reporter’s record of the hearing, if any, shall also be prepared. Finally, the trial court shall cause the supplemental clerk’s record and supplemental reporter’s record, if any, to be filed with the Clerk of this Court on or before December 4, 2009. It is so ordered. Per Curiam tion for new trial. The motion to recuse was supported by an affidavit from appellant's father providing reasons for potential bias by the trial judge. According to the affidavit, appellant's father was terminated in 1993, when the trial judge was in private practice and represented appellant's father's employer. As a result of the termination, legal proceedings followed. During a hearing in 1994, appellant's father observed Judge Self prying into the father's brief case and confronted him about it. Harsh words were exchanged and appellant's father told Judge Self "he would regret the day he ever messed with [his] family." Appellant's father also averred that he expressed concern about Judge Self to appellant's attorneys prior to the adjudication hearing, but a strategic decision was made not to file a motion to recuse out of fear it would aggravate any bias. He concluded that in hindsight the motion to recuse caused Judge Self to impose the maximum sentence. Appellant concedes that timeliness of his motion to recuse is at issue. However, relying on George v. State, 20 S.W.3d 130 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd), he argues his motion was timely because it was directed at a hearing on the motion for new trial. The State urges that the motion to recuse should have been filed at least ten days prior to the adjudication hearing and that failure to do so waived any complaint of the denial of an opportunity to have the motion heard by another judge. See Arnold, 853 S.W.2d at 544-45. See also DeBlanc v. State, 799 S.W.2d 701, 705 (Tex.Cr.App. 1990) (en banc). In George, the defendant urged on appeal that the trial judge erred in presiding over the motion for new trial hearing because the judge's conduct during trial was the central issue to be decided. Id. at 136. No motion to recuse, however, was filed. The court of appeals suggested that a motion to recuse directed at the motion for new trial hearing could have attempted to foreclose the possibility of having a biased judge rule on the motion for new trial. Id. 138-39. George, however, is distinguishable. The judge who presided over a jury trial left to attend a judicial conference before the jury returned a verdict. Another judge was asked to receive the verdict. After the jury indicated it was deadlocked, the judge instructed them to continue deliberating. Meanwhile, a plea agreement was being negotiated. Allegations were made that during plea discussions with the judge, the judge threatened, intimidated, and coerced a guilty plea from defendant. The grounds for possible recusal were not known until after trial. See generally Martin v. State, 876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.) (noting that the ten-day requirement is not absolute and does not contemplate a situation in which a party cannot know the grounds for recusal until after the motion would no longer be timely). In the underlying case, the alleged reasons for recusal were known more than ten days prior to the hearing on the motion to adjudicate. We decline to apply George to the facts presented here. We conclude Judge Self's inaction on the motion was not error. See Bruno v. State, 916 S.W.2d 4, 8 (Tex.App.-Houston [1st Dist.] 1995, no pet.). Issues one and two are overruled. By his final issue, appellant contends the trial court erred in not setting a hearing on his motion for new trial that was accompanied by affidavits that established reasonable grounds to believe the allegations in the motion were true. We disagree. A defendant is entitled to a hearing on a motion for new trial if the motion and accompanying affidavits raise matters not determinable from the record upon which the defendant could be entitled to relief. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Cr.App. 2003) (en banc). Additionally, the defendant must present the motion to the trial court. Rozell v. State, 176 S.W.3d 228, __ (Tex.Cr.App. 2005). The record demonstrates the motion was timely presented to the trial court. See Tex. R. App. P. 21.6. By his motion for new trial and accompanying affidavits, appellant presented the following grounds for relief: he was sentenced without being given an opportunity to present punishment evidence; the trial court erred in refusing to contact his community supervision officer in McLennan County; the court erred in refusing to allow him to present evidence on the prosecutor's recommendation; the judgment and sentence were contrary to law; and his due process rights were violated because the trial court's decision was based in part on a prior relationship with his father. As previously discussed, appellant was given an opportunity to present evidence in mitigation of punishment and failed to object when the trial court imposed sentence, thereby waiving any complaint regarding sentencing. Additionally, the judgment and sentence were not contrary to law. Article 42.12, section 5(b) of the Code of Criminal Procedure denies a defendant the right to appeal a trial court's decision to adjudicate guilt. Finally, appellant's argument that the trial judge's bias violated his due process rights was disposed of in his issues complaining of the trial court's refusal to recuse or refer the motion to recuse. We conclude there were no issues raised in the motion for new trial that were not already determinable from the record. Issue five is overruled. Accordingly, the trial court's judgment is affirmed. Don H. Reavis Justice Do not publish. 1. Appellant presents five issues in the table of contents and body of the brief; however, he only presents four issues in the "issues presented" portion of the brief and the State only responds to four issues. We will address all five issues. 2. Although appellant filed a "motion to disqualify," the substance of the document is a request for recusal based on bias. Cf. Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2005).