I have a defendant who is set for trial for DWI with Child Passenger. While on bond for DWI, he jumped bail. We indicted the bail jumping and plan on using the bail jumping as punishment evidence. Just last week the defense filed a motion to recuse the judge, since he was the judge presiding in the court where the bail jumping occurred. (The judge's role would be to call the defendant's name, and when no one came forward, he instructed the bailiff to call the name 3 times at the door, then when no defendant appreared, instruct the clerk to issue a capias.) We are not going to call the judge as a witness in punishment, but prove the bail jumping through other witnesses. What do you think? Does the judge have to recuse himself? I know it saves an appellate issue,but is it fatal, and this late in the game, it would really delay the trial to transfer to another court.

Well, he doesn't appear to be disqualified because he isn't an injured party. Cf Whitehead v. State, 273 S.W.3d 285 (judge disqualified where judge was an actual victim of case on trial, even though he was not the victim alleged in the indictment). He wouldn't seem to me to be a "material witness in the proceeding." Betcha he doesn't even remember calling the defendant's name. Was the motion timely filed under TRCP 18a?

No sense making an appelate issue if you've already got a strong case, but you could admit the bail jumping as "evidence of guilt" in the case in chief....Ransom v. State, 920 S.W.2d 288

So what did you do?

Defense filed motion to recuse. Judge recused self from bail jumping but declined to recuse from original DWI w child case. State took the position that we were not opposed to the motion to recuse. Judge hearing recusal took it all under advisement and requested briefs from the parties.

We have made a new offer to the D that would include withdrawing the motion to recuse. If rejected, State will simply file letter indicating, as before, that we don't oppose recusal.

Don't worry, Jane still went to trial. Just on a different case: habitual DWI with blood results and deadly weapon allegation.

Defendant took the new offer. Guess he didn't like rolling the dice with a jury.

PS, Jane and Michael got 43 years in prison on the DWI habitual case with a DW finding. Interesting side story: the judge had busted the plea in that case.