Kevin Arnold BRUNO, Appellant, v. The STATE of Texas, Appellee, 937 S.W.2d 121

ORDER ON MOTION FOR REHEARING EN BANC PER CURIAM. Appellant filed a motion for rehearing en bane alleging two grounds for rehearing. Although the Court has overruled appellant’s motion for rehearing en banc on both grounds, we will address the first ground in this order. Appellant contends that this Court’s action is void in its entirety because it was decided by a panel that included a judge who is disqualified to sit on this case under

article V,

section 11 of the Texas Constitution. Specifically, appellant maintains that Justice Tim Taft is disqualified because he was in a supervisory position in the Appellate Division of the Harris County District Attorney’s Office during the time when appellant’s case was prosecuted by the District Attorney’s Office.

Article V,

section 11 of the Texas Constitution provides that “[n]o judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such degree as may be prescribed by law, or when he shall have been counsel in the case.” Tex. Const, art. V., § 11 (emphasis added). The Court of Criminal Appeals has consistently construed “counsel in the case” to require actual participation in the case. See Gamez v. State, 737 S.W.2d 315, 318-320 (Tex.Crim.App.1987).

Appellant makes no allegation that Justice Taft actually participated in the trial or the appeal of this case while he was a prosecutor, and the record does not show any such participation. Consequently, Justice Taft was not disqualified from sitting as a justice on appellate review of this case merely because he was a supervisor in the district attorney’s office at the time appellant was prosecuted. SCHNEIDER, C.J., and COHEN, MIRABAL, WILSON, HEDGES and ANDELL, JJ., voted against rehearing en banc. O’CONNOR, Justice, voted for rehearing en banc and dissents from the denial of rehearing en banc.

HUTSON-DUNN and TAFT, JJ., did not participate in the rehearing en banc vote.