David Lorenza Joyner v. the State of Texas

Order issued May 4, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00875-CR ——————————— DAVID LORENZA JOYNER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1554289

MEMORANDUM ORDER

Currently pending before this Court is appellant David Lorenza Joyner’s pro se “Motion and Affidavit for the Recusal of the Entire First Court of Appeals from Presiding Over the Appeal . . . And for the Appeal to Be Transferred to the 14th Court of Appeals.”

Texas Rule of Appellate Procedure 16.3 prescribes the procedure to be followed for recusal of an appellate justice:

Before any further proceeding in the case, the challenged justice or judge must either remove himself or herself from all participation in the case or certify the matter to the entire court, which will decide the motion by a majority of the remaining judges sitting en banc. The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him or her.

TEX. R. APP. P. 16.3(b). When, as in this case, a party challenges all the members of the court, the court decides the motion under the procedures set forth in Rule 16.3. See id.; see, e.g., Cameron v. Greenhill, 582 S.W.2d 775, 775–77 (Tex. 1979) (denying motion to disqualify entire Texas Supreme Court); Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2016 WL 7321788, at *1 (Tex. App.—Amarillo Dec. 12, 2016, order) (treating recusal motion as addressed to entire court).

Accordingly, upon the filing of appellant’s motion and before any further proceedings in this appeal, each of the challenged justices of this Court considered the motion in chambers. See TEX. R. APP. P. 16.3(b); see also Cogsdil, 2016 WL 7321788, at *1; Cannon v. City of Hurst, 180 S.W.3d 600, 601 (Tex. App.—Fort Worth 2005, order). Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris each found no reason to recuse themselves and certified the matter to the remaining members of the en banc court. See TEX. R. APP. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 *3 S.W.3d at 601. This Court then followed the accepted procedure set out in Rule 16.3. See TEX. R. APP. P. 16.3(b); Cannon, 180 S.W.3d at 601. The justices deliberated and decided the motion to recuse with respect to each challenged justice by a vote of the remaining participating justices en banc. See TEX. R. APP. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. No challenged justice sat with the other members of the Court when his or her challenge was considered. See TEX. R. APP. P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); Cogsdil, 2016 WL 7321788, at *1; McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, order).

Having considered the motion as to each challenged justice, and finding no basis for recusal, appellant’s motion to recuse is denied with respect to each challenged justice. See Manges, 673 S.W.2d at 185; McCullough, 50 S.W.3d at 89. The Court enters the following orders:

ORDER DENYING MOTION AS TO CHIEF JUSTICE RADACK

To the extent that appellant’s motion requests recusal of Chief Justice Radack, it is ordered that the motion is denied.

The Court consists of: Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE KELLY

To the extent that appellant’s motion requests recusal of Justice Kelly, it is ordered that the motion is denied.

The Court consists of: Chief Justice Radack and Justices Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE GOODMAN

To the extent that appellant’s motion requests recusal of Justice Goodman, it is ordered that the motion is denied.

The Court consists of: Court consists of Chief Justice Radack and Justices Kelly, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE LANDAU

To the extent that appellant’s motion requests recusal of Justice Landau, it is ordered that the motion is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE HIGHTOWER

To the extent that appellant’s motion requests recusal of Justice Hightower, it is ordered that the motion is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Landau, Countiss, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE COUNTISS

To the extent that appellant’s motion requests recusal of Justice Countiss, it is ordered that the motion is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Rivas-Molloy, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE RIVAS-MOLLOY

To the extent that appellant’s motion requests recusal of Justice Rivas-Molloy, it is ordered that the motion is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Guerra, and Farris.

ORDER DENYING MOTION AS TO JUSTICE GUERRA

To the extent that appellant’s motion requests recusal of Justice Guerra, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, and Farris.

ORDER DENYING MOTION AS TO JUSTICE FARRIS

To the extent that appellant’s motion requests recusal of Justice Farris, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, and Guerra.