Nathan Grider v. the State of Texas ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00190-CR
__________________
NATHAN GRIDER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 23877
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MEMORANDUM OPINION
In a single issue, Nathan Grider asks the Court to reverse the trial
court’s judgment because the trial court refused to dismiss Grider’s
indictment after Rebecca Walton, Hardin County’s elected County
Attorney, stepped in for the prosecutor in lieu of David Sheffield, the
County’s elected DA. Because a county attorney’s duties include
representing the State in district court either on the request of the DA or
1
in the DA’s absence, the trial court did not err in denying Grider’s motion
to dismiss his indictment. For the reasons explained below, we will
affirm.
Background
In July 2016, the grand jury indicted Nathan Grider for deadly
conduct under an indictment that alleged Grider knowingly discharged a
firearm toward a habitation while acting recklessly as to whether the
habitation was occupied.1 In December 2017, Hardin County’s DA, by
motion, asked the trial court to appoint a special prosecutor to prosecute
Grider in the case after a conflict of interest had arisen in the DA’s office
because a witness the State intended to call in the trial was being
prosecuted by the DA’s office on felony charges in another case that was
pending in the 88th District Court. The trial court, however, never ruled
on the DA’s motion. The record contains neither an order recusing the
DA and replacing the DA with an attorney pro tem, nor an order
authorizing a special prosecutor to assist the DA in discharging that
offices duties of prosecuting Grider on behalf of the State.
1
Tex. Penal Code Ann. § 22.05(b). The offense is a third-degree
felony.
2
Even though the trial court never ruled on the DA’s motion, the
appellate record shows that by October 2018, when Grider signed a plea
agreement and agreed to plead guilty, Rebecca Walton was appearing for
the State in Grider’s case despite the fact the trial court never signed an
order substituting her as counsel of record in place of the DA. Around a
year after Grider signed the plea agreement, his attorney moved to
dismiss Grider’s indictment. In the motion, Grider argued the DA’s
request to appoint a special prosecutor immediately disqualified any
attorney subject to the control of the DA from prosecuting him on behalf
of the State. According to Grider, the trial court should have recognized
that it needed to appoint an attorney pro tem after the DA filed his
motion asking the trial court to appoint a special prosecutor even though
the DA had not asked the court to appoint an attorney pro tem. Grider
claims that since the DA’s motion claims a conflict existed in his office in
both prosecuting Grider and in prosecuting a witness it intended to call
against Grider when his case was tried, the trial court needed to appoint
an attorney pro tem.2 But Grider didn’t obtain a hearing on his motion to
2
Compare Tex. Code Crim. Proc. Ann. art. 2.07 (the rules of
procedure governing the appointment of attorneys pro tem), with id. art.
3
dismiss his indictment until August 2020. When the trial court heard
Grider’s motion, the motion to dismiss the indictment was denied. Grider
didn’t present any evidence in the hearing to support his motion. The
trial court also didn’t explain why it found Grider’s motion to dismiss was
without merit. After the trial court ruled on Grider’s motion, it
announced the court would hear Grider’s plea. After considering the
evidence relevant to Grider’s plea and Grider’s plea agreement, the trial
court deferred adjudicating Grider’s guilt and signed an order placing
Grider on community supervision for ten years. 3
Analysis
Grider complains that the trial court abused its discretion by
denying his motion to dismiss his indictment. According to Grider, the
conflict of interest the DA raised in his motion to appoint a special
prosecutor required the trial court to appoint an attorney pro tem to
replace the DA and prosecute him in place of the DA. As we understand
Grider’s argument, Walton could not prosecute him as a special
27.08 (the rules of procedure governing the appointment of special
prosecutors).
3
The trial court granted Grider the right to file an appeal from its
ruling on his motion to dismiss his indictment.
4
prosecutor at the DA’s request because doing so created the same conflict
the DA had already raised in his motion since special prosecutors, when
appointed under Texas law, remain subject to the control of the DA.
Under Texas Law, “[e]ach district attorney shall represent the
State in all criminal cases in the district courts of his district and in
appeals” from those cases.4 Yet there may be occasions when a district
attorney is legally disqualified from representing the State. 5 When
district attorneys are not legally disqualified, they may request the
district court where the case is filed to permit their recusal for good
cause.6 This procedure allows district attorneys who have conflicts to
avoid them and to avoid the appearance of impropriety by sometimes
declining to participate on occasion in a case. 7 When the trial court
approves the DA’s request to recuse for good cause (but not before), the
district attorney’s office is deemed “disqualified.” 8
4
Id. art. 2.01; Coleman v. State, 246 S.W.3d 76, 81 (Tex. Crim. App.
2008).
5
Tex. Code Crim. Proc. Ann. art. 2.08; Coleman, 246 S.W.3d at 81.
6
Coleman, 246 S.W.3d at 81.
7
Id.8
Tex. Code Crim. Proc. Ann. art. 2.07(b-1); Coleman, 246 S.W.3d at
81.
5
Article 2.07 of the Code of Criminal Procedure addresses when a
trial court may appoint an attorney to perform the duties of the
prosecutor on behalf of the State. 9 The attorney appointed under article
2.07 is called an “attorney pro tem.”10 Article 2.07(a) provides that the
appointment of an attorney pro tem may arise “whenever an attorney for
the state is disqualified to act in any case or proceeding, is absent from
the county or district, or is otherwise unable to perform the duties of the
attorney’s office, or in any instance where there is no attorney for the
state[.]”11 As outlined in article 2.07, the trial court is authorized to
“appoint, from any county or district, an attorney for the state or may
appoint an assistant attorney general to perform the duties of the office
during the absence or disqualification of the attorney for the state.” 12 An
attorney pro tem steps into the role of the district or county attorney with
all of that position’s functions and responsibilities. 13
9
Tex. Code Crim. Proc. Ann. art. 2.07.
10
Coleman, 246 S.W.3d at 82; Marbut v. State, 76 S.W.3d 742, 748
(Tex. App.—Waco 2002, pet. ref’d).
11
Tex. Code Crim. Proc. Ann. art. 2.07(a).
12
Id.13
State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993)
(Clinton, J., concurring).
6
Compared with an attorney pro tem, a special prosecutor, “with the
consent of the district attorney, assists the district attorney in the
investigation and prosecution of a particular case, but the district
attorney is responsible for the prosecution, control, and management of
the case.”14 The special prosecutor doesn’t need to be appointed by the
trial court or take a constitutional oath of office when he or she acts with
the permission of the district attorney. 15 The district attorney doesn’t
need to be absent, disqualified, or recused, or otherwise unable to
perform, and the trial court doesn’t need to approve his or her
appointment.16
The prosecutor in this case asked the trial court to appoint a special
prosecutor given the conflict in both prosecuting Grider on the one hand
and a witness it intended to call if Grider’s case went to trial, which as
we understand the DA’s motion is the conflict the DA perceived. Yet the
motion the DA filed was never heard, the record does not show the DA
obtained a hearing on the motion, and the motion was never ruled on by
14
See id.; Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.—Austin
1998, pet. ref’d).
15
Stephens, 978 S.W.2d at 731.
16
Id.7
the court. Perhaps the conflict the DA feared was resolved by some
change in circumstances, such as Grider’s guilty plea, a plea by the
witness in the other case, or other circumstances none of which Grider
presented evidence to describe. Simply put, the record currently before
us fails to show much about the nature of the conflict either when the DA
filed the motion, when Grider entered a plea agreement, or when the trial
court accepted Grider’s plea and enforced the plea agreement he made
with the prosecutor representing the State, Rebecca Walton.
Consequently, on this record we can’t say that Grider met his burden to
prove the trial court abused its discretion in denying his motion to
dismiss.
Besides Grider’s failure to meet his burden of proof, the trial court
did not need to appoint an attorney pro tem or a special prosecutor before
allowing Walton, as Hardin County’s Attorney, to prosecute the case
against Grider in the 88th District Court. Article 2.02 of the Code of
Criminal Procedure defines a county attorney’s duties. 17 A county
attorney represents the State in all criminal cases under examination or
prosecution in their “said county,” aids the district attorney when
17
See Tex. Code Crim. Proc. Ann. art. 2.02.
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requested in the prosecution of any case on behalf of the State in district
court, and represents the State alone “in the absence of the district
attorney.”18 Here, perhaps the DA chose to be absent due to the conflict
his office identified in the motion he filed more than three years before
the trial court heard and then denied Grider’s motion to dismiss. Or
perhaps Walton appeared and began representing the State around
October 2018, over a year and half after the DA filed the motion because
the DA was absent and attending to other matters, so Walton having
represented the State in negotiating the plea agreement then continued
to represent the State because she was the attorney who was familiar
with the negotiations that led to Grider’s plea. Regardless of why the DA
chose to be absent in Grider’s case, article 2.02 authorized Walton as the
elected County Attorney to prosecute Grider because Grider failed to
meet his burden of proof to demonstrate why the County Attorney was
either disqualified due to a purported conflict or unauthorized to
represent the State.19
18
Id.19
Id.9
Because Grider failed to meet his burden of proof, we overrule
Grider’s sole issue.
Conclusion
Having considered the record and determined that Grider failed to
establish an abuse of discretion occurred, the trial court’s judgment is
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on March 23, 2022
Opinion Delivered November 2, 2022
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
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