Unindicted case is set in district court on Jan. 3, 2005. Judge moodily demands indictment, as she had in November. Judge announces trial date is 1/17/05. D files unverified motion to recuse later on 1/3/05. Court denies this mtion on 1/8/05 for lack of verification. D is on bond and case is 90+ days old due to penpacket delay. GJ was discharged 12/17/04, penpack arrived 12/20/04. New GJ 1/3/05; indictment returned 1/5/05. On 1/14/05 D files a verified motion which the court denies as untimely; within ten days of trial. Recusal alleges judge is an arm of the prosecution because she "ordered" the state to indict the case. The state had ignored previous grumblings about "wanting the case indicted" in November. If the motion fails to make a primae facie case for recusal may the subject of the motion deny it? Is the first motion of 1/3/05 w/o effect because the court lacked jurisdiction? Could the defendant only file his corrected motion w/in ten days because the case is to be tried ten days from indictment? Can the motion be ignored because the D waited until the day before trial to file when the grounds were apparent two weeks ago? Must the judge refer to the admin judge?

Let's start by suggesting you don't need a pen packet to get an indictment. You could present a case to a grand jury in a timely way without it. Surely you have enough information about the criminal history to put it in the indictment before the pen packet arrives. More details can be added by amendment.

Furthermore, a grand jury does not pass on the enhancement portion of the indictment. A grand jury only decides whether to true bill or no bill the allegations setting out the criminal offense. While it is a good practice to include the enhancement notice in the indictment, there is no legal requirement that the indictment be the written instrument that provides that notice.

As for the rest of it, any careful judge who receives a motion to recuse will refer the allegation to an adminstrative judge for assignment of another judge to hear the motion. Beyond that, sounds like you need to do some research.

Yes, I know, Brooks says we can give notice of the enhancements by letter. If you knew my Judge and our new docketing system (see Rocket Docket by Betty Arvin in this month's Texas prosecutor) you would understand that on the "expedited track," a case can go to trial ten days from indictment....as this one is, so the need for the pen pack has nothing to do with the grand jury and everything to do with proving the enhancements to the petit jury. My guys go on Tuesday afternoon.

I am urging the Judge to refer the thing to the admin. Judge. I am also trying to run all scenarios (and a very realistic one is that she will not refer it) to make sure I put every possible reason the motion should fail in the record. Trying a state jail once is bad enough.

I've done the research, thanks. My best argument is that by filing his motion before the indictment the D shows he knew the grounds for his motion on the 3rd. When his unverified motion is denied on the 8th, after the court acquired jurisdiction on the fifth, D should have refiled. Instead, he waits 'til mid-day on the 14th which is in practical effect the day before trial. He allowed five and one-half days to go by before filing the same motion under oath. It looks dilatory. The counter-argument appears to be that the motion could not have been "presented" in the Carranza sense more than ten days before trial because we will try the case on the eleventh day after the filing of the indictment which confers jurisdiction on the court. My response is whittled down to arguing the D did not file a good motion immediately after the denial of the unsworn one. The cases say if one is within ten days of trial he may file a motion to recuse only if the grounds could not have been known earlier.

I don't expect someone else to do the work for me. I would like to see any constructive or creative arguments/positions I may be missing if my Judge is determined to be incautious.

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I understand your interest in seeing if the defendant has met the technicalities of the recusal law, but that probably won't help much if there is any merit to the underlying motion. Due process trumps all that stuff, as does an ineffective assistance of counsel claim. Frankly, if your judge refuses to refer the motion to an administrative judge, you should consider joining the defendant in a application for writ of mandamus, requiring the trial court to make the referral. Otherwise, you may be trying a case for nothing.

You may see a certain pattern to my answers. As I have grown older as a prosecutor, I find I am less concerned in winning those minor battles over individual points in the trial.

"Furthermore, a grand jury does not pass on the enhancement portion of the indictment. A grand jury only decides whether to true bill or no bill the allegations setting out the criminal offense. While it is a good practice to include the enhancement notice in the indictment, there is no legal requirement that the indictment be the written instrument that provides that notice"

Umm, really? This is news to me. Please provide me the citation for the "Brooks" case? I apparently have more reading to do.

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). There have been some court of appeals that have followed it. Check the Shepards.

The judge denied a hearing. D counsel filed a messed up application for writ of mandamus which the second court denied within a couple of hours and the D pled to five.

So you're saying that justice was served after all?

The defense lawyer had known that the case would be tried ten days from indictment since early November. The D was a state jail felon repped to a second degree. He had asked to look at a ring at a Mom & Pop jewelers, snatched it from mom's hand and jetted. He was caught redhanded and tackled by an enormous army spec 4 who recently left for Iraq. So....let's review:

1. Guilty as sin, and

2.. Exposed to 20; got 5, and

3. Trial of the case on the timetable prescribed by the CCP, and

4. considering the rapidity with which he took five, maybe justice was not served.

If they file an appeal, will they prevail? Maybe, but I don't control that.