State v. Winston Robert Modisette ( 2018 )

Fourth Court of Appeals San Antonio, Texas December 21, 2018 No. 04-18-00764-CR, 04-18-00765-CR, 04-18-00766-CR, 04-18-00774-CR, 04-18-00775-CR, 04-18-00776-CR, 04-18-00777-CR, 04-18-00778-CR, 04-18-00779-CR, 04-18-00780-CR, 04-18-00781-CR, 04-18-00782-CR, 04-18-00783-CR, 04-18-00784-CR, 04-18-00785-CR, 04- 18-00786-CR, 04-18-00787-CR, 04-18-00788-CR, 04-18-00789-CR, 04-18-00790-CR, 04-18- 00791-CR, 04-18-00792-CR, 04-18-00793-CR, 04-18-00794-CR, & 04-18-00795-CR The STATE of Texas, Appellant v. Mark Anthony GONZALEZ, Gilberto Cervantez, Agustin Perez, Jr., Gabriel Rene Perez, Javier Martinez, Jr., Jeremias Aguilar, Jr., Martin M. Rios, Jr., Steven Negrete, Fernando Jefte Mata, Eloy Canales Romo, Francisco Antonio Rodriguez, Raymond Ryan Robinson, Winston Robert Modisette, Courtney Marie Seilhammer, Anthony Otis Strait, and Ahmed Mamuth Appellees From the County Court, Kinney County, Texas Trial Court No. 10041CR, 10056CR, 10121CR, 10122CR, 10134CR, 10205CR, 9711CR, 9712CR, 9892CR, 10123CR, 10054CR, 10138CR, 10187CR, 9964CR, 10185CR, 10047CR, 10074CR, 10115CR, 10116CR, 10117CR, 10118CR, 10125CR, 10177CR, 10195CR, 10196CR Honorable Spencer W. Brown, Judge Presiding ORDER Each of these appeals is from the same order entered in each of the underlying trial court cause numbers which are designated as criminal causes. The order denies a motion to recuse filed by the State and grants a verbal jeopardy motion for dismissal. The clerk’s records and reporter’s records for these appeals were due to be filed on December 14, 2018. On December 14, 2018, the State filed a motion to consolidate the appeals, noting each appeal is “from the same order” and was “entered after the same hearing.” The State asserts the questions involved in the appeals “are so related that consolidation of the appeals will serve judicial economy and such consolidation will expediate the consideration of the appeals.” Because each of these appeals is from the same order, the State’s motion is GRANTED IN PART. It is ORDERED that the appeals shall be consolidated for briefing and argument purposes. The parties shall file motions, briefs, and other pleadings as if the appeals were one appeal, but shall include the chart attached as Exhibit 2 to the motion to consolidate, referencing all appeal and trial court cause numbers, in the style of the filing. It is FURTHER ORDERED that the appeals shall also be consolidated for purposes of the filing of the reporter’s record. The court reporter shall file one reporter’s record in appeal number 04-18-00764-CR with the chart attached to her notification of late record, referencing all appeal and trial court cause numbers, in the style of the filing. The clerk of the court will transfer a copy of the reporter’s record filed in appeal number 04-18-00764-CR to each of the consolidated appeals. It is FURTHER ORDERED that a separate clerk’s record shall be filed in each appeal, and the court will dispose of the appeals with separate judgments, opinions, and mandates except to the extent the appeals involve the same defendant. The trial court clerk and the court reporter responsible for preparing the records in these appeals have filed notifications of late record stating the records have not been filed because the State has not paid the fees for preparing the records. The State also has filed a motion for relief under TEX. R. APP. P. 35.3, stating the county judge has refused to approve payment of the fees for preparing the records referring to the underlying causes as “civil matter[s]” and relying on the following language contained in the order that is the subject of these appeals: The Court finds that the motion for recusal was groundless and filed in bad faith and for the purpose of harassment. It is further ordered that the expenses incurred in this proceeding are hereby assessed against Todd Durden, including court reporter fees, presiding judge’s fees and any other cost incurred by Kinney County, Texas. Kinney County filed a response to the State’s motion asserting the State is seeking to appeal the portions of the order denying the motion to recuse and granting sanctions against Mr. Durden. Kinney County further asserts those portions of the trial court’s order are civil in nature. Although Texas courts rely on rule 18b of the Texas Rules of Civil Procedure in discussing grounds for recusal in criminal cases, such reliance does not change the criminal nature of the underlying proceeding. Furthermore, sanctions may be imposed in both civil and criminal causes. Finally, Kinney County’s response ignores the State also seeks to appeal the dismissal of the underlying criminal causes through an order sustaining a claim of jeopardy. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(4). Because these appeals are from criminal causes, article 44.01(f) of the Texas Code of Criminal Procedure requires the State to pay all costs of appeal. TEX. CODE CRIM. PROC. ANN. art. 44.01(f). Rule 35.3 of the Texas Rules of Appellate Procedure makes the trial and appellate courts jointly responsible for ensuring the appellate record is timely filed and authorizes this court to “enter any order necessary to ensure the timely filing of the appellate record.” TEX. R. APP. P. 35.3(c). We therefore ORDER Kinney County to pay the costs for preparing the clerk’s records and reporter’s record in these appeals subject to the terms of this order and subject to this court determining whether costs should be otherwise taxed on the final disposition of these appeals. The costs must be paid no later than two weeks from the date of this order. The clerk’s records and reporter’s record must be filed no later than ten days after the costs have been paid. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of December, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court