### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00271- CR

Sand y Sendgi kosk i, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 13,6 54, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

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

A jury found Sandy

Sendg ikoski guilty

of two counts of intoxi cation manslaug hter and found that he used his car as a deadly wea pon in committing these offe nses. The jury assessed

a term of sevente en-a

nd-one- half y ear s in prison for eac h offe nse as punishment, and the trial court order ed these sentenc es to run consec utively

. Sendg ikoski contends that his trial counsel rende red ineffe ctive assistance by waiting to file a motion to disqualify the trial judge until less than ten day s befor e the tria l date. We will affir m the judgme nt. Sendg ikoski and his g irlfriend drove around and drank beer for sever al h o u rs on Fe bruar y 10, 2009, eventua lly winding up on Texas H ighw ay 21. Early that evening , Martin Ortiz

was driving west on Fa

rm to Marke t Road 812 and Dan Richards was driving east on the same road. Both we re in pickup truc ks and both wer e driving toward Te x as 21. Sendg ikoski ex ited Texas 21

an d rolled throug h a stop sign into its intersec tion with FM 812. He struck Ortiz ’s t ru ck o n t h e side and sent it airbor

ne into a ca

b-to-ca b collision with Richards’s truck. Ortiz died at the sc ene,and Richards died twelve day s later as a result of injuries sustained in t h e cra sh. Sendg ikoski’s

blood-alcohol level was 0.28—more than three times the leg al limit for drivers. See Tex. Penal Code Ann. §§ 49.01(2)( B) , 49.04 (West 2011). Sendg ikoski was indicted for two counts of intox ication manslaug hter. Trial was set for April 12, 2010. Sendg ikoski’s trial attorney , J o e T uck, proposed

a plea barg ain that he said the State favor ed until Richards’s family objected

. On April 6, 2010, the State reje cted t h e plea offe r and filed a motion to have any sentenc es run consec utively

. The
next day , Sendg ikoski filed a m o t i o n to disqualify District J udg e Christopher Dug g an alleg ing that the judg e may

have had a previous association with Richa rds. The motion alleg ed that, while J udg e Dug g an serve d eig hteen y ear s as a prosec utor in Travis County , Richards was the chief deputy sheriff for Travis County , and that their presumed rela tionsh i p would aff ect the judge ’s ability
to be fair and impartial. J udg e Dugg an refer red the case to the admini strative j u d ge fo r a h ear ing on the motion. A visiti ng judge held a hear ing on the motion, during which Tuck asserted that J udg e Dug g an must have known Richards at least indirectly and would have difficulty being fair in

a trial conce rning the cause of Richards’s death. Tuck stated that he had been disappointed in sever al ruling s by the court and conce rned by the manner in which the court ruled during the proce ss leading
up to trial. He never

theless had expected the State to ag ree to, and the court to acc ept, the plea barg ain that would have limit ed his client’s maxi mum sentenc e to twenty y ear s. Tuck testified that he withheld filing the motion to disqualify until the State reje cted the plea barg ain and fi l ed the motion to have any sentenc es run consec utively , and there by incre ased the chanc e that his client would be sentenc ed to forty y ear s in prison. Tuck said that the sentenc ing exposure combined with 2his conce rns about J udg e Dug g an’s pe rce ived bias compe lled him to file the motion t o disqualify

.

A visiting judg e hea

rd and de nied the motion to disqualify without stating a ba sis. J udg e Dug g an then presided over the trial at which the jury found Sendg ikoski g uilty

on both counts and assessed a sentenc e of sevente en-a nd-one- half y ear s in prison on eac h count. The trial court then or dere d the sentenc es to be ser ved conse cutively

. Sendg ikoski’s a ppellate counsel filed a motion seeking a new trial “in the intere st of justice” without furthe r deta il. Sendg ikoski asser

ts on appea l that the judgme nt s h o u l d b e reve rsed beca use he rec eived ineffe ctive assistance of counsel at trial. He arg ues that Tuck rende red ineff ec tive assistance by waiting to file the m o t i o n t o d i s q u alify until the eve of trial. He contends that the motion was due at lea st ten day s befor e trial. See Tex. R. Civ. P. 18a(c ); see also Arnold v. State , 853 S.W .2d 543, 544 (Tex. Crim. App. 1993) (en banc) (civil appellate rules g overn remova l of judge s in criminal t ri als). He asser ts that Tuck knew that the sentenc es could be stacke d even without a m o tion by the S tate long before April 6 and that his untimeliness in seeking remova l of the judg e bar

red Sendg ikoski from complaining about the judg e pre siding ove r the trial. To establish ineffe ctive assistance , a defe ndant mus t show that (1) counsel’s perf ormanc e fell below an objective standard of rea sonablene ss, and (2) counsel’s defic ient perf ormanc e prejudice d the defe nse, resulting in a n unreliable or fundame ntally unfair outcome of the proce eding

. Strickland v. W ashington , 466 U.S. 668, 687-88 (1984); Davis v. State , 278 S.W .3d 346, 352 (Tex. Crim. App. 2009). We must indulge a strong presumption that counsel’s conduct fell within the wide rang e of rea sonabl e p ro fe ssional assistance

. Strickland , 466 U.S. at 771; Jack son v. State , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). To overc ome this presumption, the rec ord must a ffirma tively demonstrate the alleg ed ineffe ctiveness. Mallett v. State , 65 S.W .3d 359, 63 (Tex. Crim. App. 2001). We revie w the eff ectivene ss of counsel in light of the totality of the repr esenta tion and particula r circ umstances of eac h case . Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). To establish defic ient perf ormanc e as a matter of law under the first prong ,

a defe ndant must show that no rea sonable trial strateg y could justify counsel’s conduct. Strickland , 466 U.S. at 689; Andrews v. State , 159 S.W .3d 98, 1 0 2 (T ex . Crim. App. 2005). A defe ndant establishes prejudice under the s econd prong if he s h o ws t h at a rea sonable probability exis ts that, but for the defic ient perf

ormanc e, the outcome of the proce eding would have b ee n d i ffe rent. See Strickland , 466 U.S. at 687-88, 694; Ex parte Cash , 178 S.W .3d 816, 818 (Tex. Crim. App. 2005). A rea son able probability is one sufficie nt to undermine confide nce in the outcome. Strickland , 466 U.S. at 694.

We conclude first that Sendg ikoski has not sh own that his trial counsel’s motion
to disqualify was untimely

. A judge may be remove d b ecause he is disqualified or beca use he is subject t o rec usal b y rul e, and the grounds and proce dures for each ty pe of remova l are differ ent. See In re Union Pac. Res. Co. , 969 S.W .2d 427, 428 (Tex. 1998) (orig . proce eding ). Sendg ikoski

asser ted in his motion titled “De fenda nt’s Mo t i o n t o Di squalify J udg e” that the circ umstances of the case would aff

ect J udg e Dug g an’s “ability to be fair and impartial.” J udicial bias is a g round for disqualification in those case s in which the bias is shown to be of such a nature and to such an extent

as to deny a defe ndant due proce ss of law—a rig ht g uara nteed by the fede ral and state constitutions. U.S. Const. Amend. XI V, § 1; Tex. Const. art. 1, § 19; W esbrook v. State , 29 S.W .3d 103, 121 (Tex. Crim. App. 2000). Disqualification cannot be waived wher e it arises fr o m a constitutional provision. W

oodland v. Stat e , 178 S.W .2d 528, 529 (Tex. Crim. App. 1944). Disqualifi cation of

a judge for bias that denies due proce ss may be raised at any time. See Gamez v. State , 737 S.W .2d 4315, 318 (Tex. Crim. App. 1987). Thus, the timing of the filing did not preve nt Sendg ikoski from

having his motion to disqualify hear d. He has no t s h o wn t h at t he timing of Tuck’s filing of the motion constit uted def

icient per formanc e. Even if his motion to disqualify wer e actua lly a motion to rec use and the limit ations of rule of proce dure 18a rende red his motion to remove the judge untimely , Sendg ikoski 1 has not shown that Tuck rende red ineffe ctive assistance

. Tuck’s decision to try to g et the plea deal

acc epted befor e urg ing remova l of the judge may have been sound trial s t rate g y . Tuck alleg ed that the late filing of the motion cause d a neg ative rea ct i o n b y J u d g e Dug g an in this and other

case s involving Tuck and his firm. Even if the t iming of the motion—rather than its substance or

some other unrela

ted fac tor—ca

used t h e t ri al judge ’s alleg ed neg ative rea ction, we cannot say that Tuck’s delay in filing was ineffe ctive assistance of coun s el

. W e also cannot say that Tuck
acte d unrea sonably when he did f ile the motion to disqualify , g iven that he believed the judge was biased. Fur

ther, Sendg ikoski has not demonstrat ed t hat this one action rende red Tuck’s entire perf ormanc e ineffe ctive. I ndeed, he does not complain about the rema inder of Tuck’s perf ormanc e, which included filing numerous pretria l motions, neg otiating a plea ag ree ment that alleg edly almost resolved the matter, and calling , questioning, and cross-e x amining witnesses at trial. We conclude that Sendg ikoski has not demonstrated t h at t h e t i ming and the filing of the motion to disqualify rende red Tuc k’s per formanc e as c ounsel so defic ient as to be inef fec tive assistance of counse l.

Some courts have deter

mined that, if the g rounds for fi l i n g a m o t i o n to rec use are not 1 appar ent u n t i l l es s t h an ten day s befor e trial, a party may file a motion to rec use despite the limit ations of Texas Rule of Civil Procedur e 18a. See, e.g. , Keene Corp. v. Rogers , 863 S.W .2d 168, 171-72 (Te x . App.—Texarkana 1993, no writ). 5Finally , we cannot conclude that a rea sonable probability exis ts that the outcome of

the proce eding would have been differ ent but for the alleg edly late filing of the motion. Sendg ikoski has not shown that the result of the hear ing on the motion to disqualify woul d h ave been any differ ent had Tuck filed the motion at least ten day s b ef o re t rial. Reg ardle ss of the timing of the motion to disqualify , a vis iting judge held a hearing on its substance and denied it without stating that his denial was based on the timing of the filing of the motion. Sendg ikoski complains that the late filing of the motion to disqualify barr ed appellate revie w. Even if that wer e true, the rec ord of the motion to disqualify does n o t s h o w that the visiti ng judge err ed in deny ing the motion to disqualify

. Sendg ikoski has not shown that the timing of the filing of the motion had any eff ect on the ruling on the motion.

More critically , Sendg ikoski has not demonstrated tha t any alleg ed tar diness in the filing of the motion to disqualify had any eff ect on the outcome of the case . We find ample support in the rec ord for concluding that the fac ts of the case controlled the outcome. Sendg ikoski drove his vehicle afte r consuming more than a dozen beer s, leading to intox ication at 3.5 times the leg al limit

. He testified tha t the intersec tion was “horr ible,” but conc eded that it would have be en no proble m if he had been sober. I nstead, he failed to stop at a stop sign, cause d a chain rea ction collision, and
two people died as a result. Sendg ikoski testified that having a DWI was the norm in his gro u p of friends and that he had not previously understood the potential s ev er ity of the eff ect that his driving while drunk could have on others. He made this statement despite having been convicted in 2001 of driving while intox icated and put on community supervision that was later revoke d. The evidenc e and testimony s t ro n g ly support the conviction, and Sendg ikoski has not shown how the timing of the filing of the motion to disqualify had any eff ect on the outcome of the case . Even 6so, the jury did not impose the maxi mum sentenc e o f t we n t y y ea rs for eac h offe nse. We cannot

conclude that the jury found Sendg ikoski g uilty o r s en t ence d him more harshly as a result of the alleg edly late filing of the motion to disqualify

. Fur ther, there is no showing that the trial cour t order ed the sentenc es to run consec utively as a result of the timing or th e fi l i n g of the motion to disqualify or beca

use of any bias. The trial judge could reas o n ab l y have been persua ded that the circ umstances of this case merited a strong er messag e of punishment and deter renc e than concur

rent
sentenc es wo u l d p ro v i d e. We cannot conclude based on this rec ord that a rea sonable probability exis ts that, but for Tuck’s filing the motion to disqualify less than ten day s befor e trial, the outcome of the proce eding would have been better for Sendg ikoski. He has not demonstrated that Tuck’s perf ormanc e constituted ineff ective a ssistance re quiring reve rsal. We affir m the judgme nt.

J eff Rose, J ustice Be fore J ustices Henson, Rose a nd Goodwin Affir med Filed: Aug ust 19, 2011 Do Not Publish

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