Affirmed and Memorandum Opinion filed December 15, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00018-CR

DARIUS KICHOI MWALILI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1597054

M E M O R A N D U M O P I N I O N

Appellant Darius Kichoi Mwalili appeals his conviction for driving while 

intoxicated on his plea of guilty. The trial court sentenced appellant to three days in jail,

imposed a $1,000 fine, and ordered his driver‘s license suspended for one year. In this 

appeal, appellant contends that the presiding administrative judge abused his discretion 

by (1) denying his motion to recuse the trial judge; and (2) quashing the subpoena and 

prohibiting the trial judge from testifying at the hearing on the recusal motion. We 

affirm.
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BACKGROUND

The State charged appellant by information with the class B misdemeanor of

driving while intoxicated (DWI). Appellant requested entry into the Harris County 

District Attorney‘s Office‘s Direct Intervention Using Voluntary Education Restitution 

and Treatment Program (DIVERT). DIVERT is a pretrial intervention or diversion 

program for defendants charge with first-offense DWI. Appellant filed a motion to 

recuse the Honorable William Harmon of Harris County Criminal Court at Law No. 2, 

asserting that Judge Harmon had a personal bias against the DIVERT program and he 

would not agree to sign off on the entry of any first-offender into the program, unlike the 

other fourteen Harris County criminal courts at law. Judge Harmon denied appellant‘s 

motion to recuse and referred it to the Honorable Olen Underwood, the presiding judge of 

the Second Administrative Judicial Region. Judge Underwood held an evidentiary

hearing on the motion to recuse. A subpoena was issued to Judge Harmon to testify 

about his position regarding the DIVERT program. Although Judge Harmon appeared, 

Judge Underwood sua sponte quashed the subpoena because it was not proven that the 

information could not be provided by any other source. 

Melissa Munoz, a Harris County assistant district attorney assigned to the 

DIVERT program, testified about the program. The Harris County District Attorney‘s 

Office preliminarily accepts a defendant into the DIVERT program. The Divert program 

requires that the defendant sign a guilty-plea form. The plea agreement is presented to 

the trial court for approval. If the defendant successfully completes the DIVERT 

program, the State will move to dismiss the case. If the defendant does not successfully 

complete the program, his or her guilt will be adjudicated. Of the fifteen Harris County 

criminal courts at law, only Judge Harmon of County Court at Law No. 2 refuses to 

consider the plea option under the DIVERT program. 

Criminal defense attorney David Singer testified that he has discussed the 

DIVERT program with Judge Harmon on many occasions. Singer explained that Judge 
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Harmon does not ―agree with the notion that all first-offender DWI‘s should be put into a 

DIVERT program. . . . As a matter of public policy, that that shouldn‘t be the policy of 

the district attorney‘s office to grant first offender DWI‘s across the board ability to get 

DIVERT.‖ At the end of the hearing, Judge Underwood denied appellant‘s motion to 

recuse.

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Appellant subsequently pleaded guilty to DWI without a recommendation, and the 

trial court assessed punishment at 3 days in jail with two days credit, a $1,000 fine, and 

suspension of his license for one year. In this appeal, appellant claims that Judge 

Underwood abused his discretion by denying his motion to recuse and sua sponte 

quashing the subpoena and prohibiting Judge Harmon from testifying at the hearing. 

ANALYSIS

A Texas judge may be removed from presiding over a case because he or she is (1) 

constitutionally disqualified; (2) subject to a statutory strike; or (3) subject to statutory 

disqualification or recusal under Texas Supreme Court Rules. Gaal v. State, 332 S.W.3d 

448, 452 (Tex. Crim. App. 2011). Rule 18b(2) of the Texas Rules of Civil Procedure sets 

out the law concerning recusal and includes instances in which a judge must step down 

from hearing a case for reasons other than the disqualifying grounds listed in the 

constitution.2 Id. at 453. As relevant to this appeal, Rule 18b(2) provides: 

A judge shall recuse himself in any proceeding in which:

(a) his impartiality might reasonably be questioned;

 

1 The recusal hearing involved three other defendants, including Adrien Delacorozo Rhodes. 

Rhodes appealed her DWI conviction to this court, challenging Judge Underwood‘s denial of her motion 

to recuse Judge Harmon. See Rhodes v. State, No. 14-11-00017-CR, — S.W.3d —, 2011 WL 5999021

(Tex. App.—Houston [14th Dist.] Dec. 1, 2011, no. pet. h.).

2 The Texas Court of Criminal Appeals has previously held that the recusal procedures set forth in 

Rule 18a apply to criminal cases. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. 

proceeding); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993)
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(b) he has a personal bias or prejudice concerning the subject matter or a 

party, or personal knowledge of disputed evidentiary facts concerning the 

proceeding; . . .

TEX. R. CIV. P. 18b(2)(a), (b). 

We review an order denying a motion to recuse for an abuse of discretion. 

Westbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000); Kemp v. State, 846 

S.W.2d 289, 306 (Tex. Crim. App. 1992). An appellate court should not reverse a trial 

judge whose ruling on the motion was within the zone of reasonable disagreement. 

Westbrook, 29 S.W.3d at 121; Kemp, 846 S.W.2d at 306. In reviewing the denial of the 

motion to recuse, we consider ―the totality of the evidence and information elicited at the 

recusal hearing to see if the record reveals sufficient evidence to support the recusal 

judge‘s ruling that the trial judge was unbiased.‖ Gaal, 332 S.W.3d at 456; see also 

Abdygapparova v. State, 243 S.W.3d 191, 199 (Tex. App.—San Antonio 2007, pet. ref‘d)

(―[I]n determining whether the presiding judge erred in denying the motion to recuse, we 

are bound by the evidence before the presiding judge at the time of the hearing on the 

motion.‖).3

In his first issue, appellant argues Judge Harmon was the only source that could 

adequately explain his personal and philosophical bias against the DIVERT program. In 

his second issue, appellant argues that Judge Harmon‘s antagonism toward the DIVERT 

program creates a reasonable doubt as to his impartiality, and his refusal to consider the 

DIVERT program‘s plea option denies appellant due process. 

The Court of Criminal Appeals recently reaffirmed that ―[a]  ̳trial judge may in 

every case or in any particular case refuse to allow plea bargaining. . . . The defendant 

does not have an absolute right to enter into a plea bargain.‘‖ Gaal, 332 S.W.3d at 457 

(quoting Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978)). ― ̳Thus, it 

cannot be an abuse of discretion to deny a recusal motion predicated on the district 

 

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In a subsequent hearing, Judge Harmon explained his reasons for not approving DIVERT plea 

agreements. 
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court‘s rejection of a plea agreement.‘‖ Id. at 457–58 (quoting United States v. Gordon, 

61 F.3d 263, 267 (4th Cir. 1995)). 

Here, Judge Harmon has the discretion to reject DIVERT plea agreements. 

Appellant complains that any first-time DWI offender in Judge Harmon‘s court is 

precluded from entering in a DIVERT plea agreement, while such offenders in the other 

Harris County criminal county courts have such an option available to them. To order the 

recusal of Judge Harmon, who has full discretion to accept or reject any plea bargain, on 

the basis that it was appellant‘s bad luck-of-the-draw to be in Judge Harmon‘s court 

would eviscerate that well-established discretion. This court recently rejected a similar 

argument. See Rhodes, 2011 WL 5999021, at *3 (―[I]n the absence of other evidence, a 

trial judge‘s simple rejection of a plea agreement, even if the decision implicates an entire 

class of cases without regard to the merits of any particular case, would not be sufficient 

evidence of bias or partiality to necessitate recusal. In other words, evidence that Judge 

Harmon does not approve of plea agreements that include assignment of DWI offenders 

to the DIVERT Program does not, without more, establish the he should have been 

recused.‖). Judge Harmon‘s testimony concerning his rationale for not approve DIVERT 

plea agreements would not change this result. 

We conclude that Judge Underwood did not abuse his discretion by denying the 

motion to recuse or quashing the subpoena and overrule both of appellant‘s issues.

Accordingly, we affirm the trial court‘s judgment. 

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Boyce, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).