How does recusal work? Examination of this issue and others in Buntion v. State

Jessica Akins

Assistant District Attorney in Harris County

The year was 1990. A motorcycle officer with the Houston Police Department, James Irby, was working patrol on June 27 and initiated a traffic stop of a vehicle driven by Johnny Killingsworth. Carl Wayne Buntion was his passenger.
    Killingsworth stepped out of his car and walked to its rear to speak with Officer Irby. According to witnesses, their interaction appeared to be cordial, and nothing indicated any type of issue between them. At one point, Officer Irby walked to the driver’s side window and said something to Buntion, then returned to Killingsworth. Buntion then got out of the car, and Officer Irby motioned for him to get back inside. Instead of complying, Buntion approached the officer, pointed a .357 magnum revolver at Officer Irby, and shot him in the head. He then shot him two more times in the back.
    A Harris County grand jury indicted Buntion for capital murder on July 12, 1990. Later that year, the trial judge granted the defendant’s motion for change of venue, the trial was re-located to Gillespie County (Fredericksburg), and it began in early 1991. Buntion was found guilty of capital murder, and after the jury answered “yes” to the special issues, he was sentenced to death.1
    Buntion’s direct appeal to the Court of Criminal Appeals was affirmed in 1995.2 However, in 2009, the Court determined that Buntion merited a new punishment hearing due to the absence of a Penry instruction—one that provides the jury a proper vehicle to consider mitigating evidence in determining his sentence.3 Harris County prosecuted Buntion again in 2012, and he was sentenced to death a second time. In affirming the case on direct appeal in 2016, the Court of Criminal Appeals set forth some helpful guidelines for criminal practitioners with regard to recusals, change of venue, and life without parole.4

Buntion had filed a motion to recuse the Harris County District Attorney’s Office, alleging the office was disqualified because the sitting District Attorney was previously employed as a Houston police officer, as was the victim of this crime. The Code of Criminal Procedure sets forth that a district attorney shall represent the State in all criminal cases except when a district attorney’s employment prior to election would be adverse to the prosecution of a particular case.5
    In reviewing Buntion’s claim, the Court of Criminal Appeals noted that the trial court has limited authority to disqualify an elected district attorney and her staff from the prosecution of a criminal case. The office of a district attorney is constitutionally created and protected; thus, the district attorney’s authority “cannot be abridged or taken away.”6 Further, it is the responsibility of the district attorney to recuse herself in a particular case to avoid conflicts of interest and the appearance of impropriety.7
    The Court determined that the trial judge properly denied Buntion’s motion to recuse, as Buntion had not alleged nor was there any evidence that an actual conflict existed. The Court also embraced the idea (previously articulated by Judge Womack) that a prosecutor need not be a neutral party in criminal litigation. “A prosecutor who zealously seeks a conviction is not inherently biased or partial,” the decision reads. “A prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged. If honestly convinced of the defendant’s guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. True disinterest on the issue of such a defendant’s guilt is the domain of the judge and the jury—not the prosecutor.”

Change of venue
Buntion also filed a motion for change of venue, requesting his trial to be moved to Travis County. In this motion, he claimed the Harris County District Attorney had issued a legally inaccurate statement to the Houston Chronicle newspaper regarding his case, which made it impossible for him to receive a fair trial in Harris County. In discussing her decision to pursue death in several cases that had been returned on appeal, the District Attorney articulated a concern that these offenders could be released on mandatory parole if the jury came back with a life sentence, as opposed to the death penalty.
    The trial court held a hearing on the motion where both sides presented several witnesses. Buntion presented evidence that the parole statement was incorrect, and two of the State’s witnesses agreed that capital murderers are not eligible for any type of mandatory release. The defense concern was that the jury pool had been tainted with the “mistruth” that Buntion would be released on mandatory parole if given a life sentence, thereby assuring him a second verdict of death.
    The Court of Criminal Appeals upheld the trial court’s denial of the motion to change venue. The Court found that Buntion was not harmed by the misstatement because the consideration of parole law in his case was not appropriate during the jury’s deliberation of punishment.8 The Court also noted the jury was properly instructed not to consider any possible action by the Board of Pardons & Paroles Division of the Texas Department of Criminal Justice or how long Buntion would have to serve to satisfy a life sentence. The Court further reiterated that it is presumed the jury disregards parole when it is instructed to. Also of note: That the motion to change venue was granted in the first trial had no bearing on the Court’s analysis of this issue in the second trial.

Life without parole
During his re-trial in 2012, Buntion requested that the trial court apply the sentencing scheme that was currently in effect, which then (and now) included life imprisonment without parole as a sentencing option, rather than the law that applied to capital offenses in 1990 when he committed the offense.9 He reasoned that, because a defendant may knowingly and voluntarily waive most rights, he should be allowed to waive the right to be “punished under an antiquated system that is no longer in effect.”
    Under current law, the trial court shall instruct the jury that if jurors answer that a circumstance warrants that a sentence of life imprisonment without parole rather than a death sentence be imposed, the court will sentence the defendant to imprisonment for life without parole and charge the jury that a defendant sentenced to confinement for life without parole under this article is ineligible for release from the department on parole.10
    But life without parole as a sentencing option for capital offenses did not exist at the time Buntion committed this crime.11 Under Article 37.0711—Procedure in Capital Case for Offense Committed Before September 1, 1991—if a defendant is tried for a capital offense in which the State seeks the death penalty, upon a finding of guilt, the trial court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment.12 Thus, the Court of Criminal Appeals found the trial court properly overruled Buntion’s motion. The Court focused on the sentencing scheme on the date of the offense and embraced the historical notion that people who commit the same crime on the same day should be treated similarly.13

Also of interest
Also of note: the concurring opinions this particular issue generated. Judge Alcala wrote separately to address her concern about the inequity she perceives in life sentences based upon offense date.14 She urged the legislature to provide a mechanism whereby a defendant could waive the right to the possibility of life with parole and instead be treated under the current punishment scheme. This is precisely what Buntion suggested: the opportunity to ask the jury to sentence him to life without the possibility of parole rather than death. Judge Hervey, who was joined by Judge Keasler and Judge Newell in her concurring opinion, responded that Judge Alcala’s legislative suggestion raises serious ex post facto concerns.15 Simply put: How can a defendant be sentenced to a punishment that did not exist at the time of the offense?
    This is a lengthy opinion with lots of practical information for practitioners who anticipate trying a death penalty case in the near future. In addition to the issues noted here, the Court reviewed numerous denials of the defendant’s challenges for cause, which could be useful in your next voir dire.


1 Tex. Code Crim. Proc. art. 37.071, §2(b).
2 Buntion v. State, No. AP-71,238 (Tex. Crim. App. May 31, 1995) (not designated for publication).
3 Penry v. Johnson, 532 U.S. 782 (2001); Ex parte Buntion, No. AP-76236, 2009 WL 3154909 (Tex. Crim. App. Sep. 30, 2009) (not designated for publication).
4 Buntion v. State, 2016 WL 320742 (Tex. Crim. App. Jan. 27, 2016).
5 Tex. Code Crim. Proc. art. 2.01.
6 Buntion, 2016 WL 320742 at *10; Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008).
7 Coleman v. State, 246 S.W.3d 76, 81 (Tex. Crim. App. 2008).
8 Buntion, 2016 WL 320742 at *9-10.
9 Tex. Code Crim. Proc. art. 37.071, §2(a)(1) (if a defendant is tried for a capital offense in which the State seeks the death penalty, upon a finding of guilt, the trial court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment without parole).
10 Tex. Code Crim. Proc. art. 37.071, §2(e)(2).
11 Tex. Penal Code §12.31(a).
12 Tex. Code Crim. Proc. art. 37.0711, §3(a)(1).
13 Buntion, 2016 WL 320742 at *35.
14 Buntion v. State, 2016 WL 320742 (Tex. Crim. App. Jan. 27, 2016) (Alcala, J., concurring).
15 Buntion v. State, 2016 WL 320742 (Tex. Crim. App. Jan. 27, 2016) (Hervey, J., concurring).