PD-0241-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/6/2015 2:56:09 PM
Accepted 3/6/2015 4:56:13 PM
ABEL ACOSTA
Cause No. PD-0241-15 CLERK
In the Court of Criminal
Appeals of Texas
Antonio Leija, Jr.,
Appellant
March 10, 2015
v.
State of Texas,
Appellee
On Review from Cause No. 02-13-00473-CR
in the Second Court of Appeals
Fort Worth, Texas
State’s Motion for Leave to File a Petition for Discretionary Review
from a 4-3 Denial of a Motion to Recuse
the Hon. Justice Dauphinot
To the Honorable Justices of this Court:
The State of Texas requests leave1 of this Court to file its petition for
discretionary review of the 4-3 denial of its motion to recuse Justice
1
On February 27, 2015, the day after the recusal decision was released, the State
requested that the Second Court stay its issuance of those three opinions so that the
State could appeal the denial as set out by T.R.A.P. 16.3(c). When on Wednesday,
March 4, 2015, the Second Court had still not acted on the State’s motions to stay, the
State felt the urgency to file the petition on Wednesday before the Second Court
Dauphinot. Since this is such an unusual procedural situation, the State
seeks leave for the filing of its petition for discretionary review for the
following reasons.
Compelling reasons support leave for direct review.
First, T.R.A.P. 16.3(c), the section on recusal of an appellate justice,
expressly states the “denial of a recusal motion is reviewable.” While
T.R.C.P. 18(j)(A) (dealing with recusal of trial judges) permits appeal only
after the final judgment, T.R.A.P. 16.3(c) places no such restriction. The
Code of Criminal Procedure also contains no such limiting provision.
Second, “review” means “to re-examine judicially…a
reconsideration.”2 Thus, “is reviewable” means that the denial of the order
itself is subject to being “re-examined judicially…a reconsideration.”
Third, T.R.A.P. 68.2 states that a petition for discretionary review
“must be filed within 30 days after…the day the court of appeals’ judgment
was rendered.” In this instance, the judgment of the court of appeals that
the State is appealing is the en banc seven-member 4-3 denial of the
State’s motion to recuse. If the State waits until the three-judge panels for
these cases release opinions (and if that release is later than 30-days from
released opinions on Thursday, March 5, as is its custom. Thus, the State filed its
petition for discretionary review on Wednesday, March 4, 2015. The State has since
realized that it failed to accompany its petition for discretionary review with a motion for
leave; thus, the State has filed this motion.
2
BLACK’S LAW DICTIONARY 1320 (6th ed. 1990).
February 26, 2015, the date the judgment of the court was released on the
State’s recusal motion), then the State would procedurally default its ability
to appeal the en banc denial of the motion to recuse.
Fourth, as review is still subject to the discretion of this Court and
motions to recuse appellate justices are exceedingly rare,3 the procedure
set-out in T.R.A.P.16.3(c) poses no potential for a floodgate of these
appeals.
Fifth, requiring review to wait until after the issuance of the three-
judge opinion could serve as a sword of Damocles hanging over the head
of the challenged justice. An Appellant might fear that a justice’s vote to
affirm on the merits was connected with a desire to moot the recusal issue,
especially after a highly-divided 4-3 vote. Review directly following the
recusal denial alleviates this appearance to the parties and the awkward
position for the justice.
Sixth, T.R.A.P. 16.3(c) states the denial “is reviewable.” However, if
the Court required the State to wait until issuance of opinions and if the
State prevailed in the opinion, then that would defeat review. As the
State’s grounds for recusal are not case-specific but are based upon an
antagonism demonstrated toward the Wichita County District Attorney in
3
After an exhaustive search, the State could locate no case law on 16.3(c) and an
appeal of an order denying a motion to recuse an appellate justice.
general, the State would then have to continue filing motions to recuse on
panels that Justice Dauphinot was appointed until it finally lost on the
merits of the case at the Second Court to effectuate review of the denial of
recusal. Thus, judicial economy supports review and a resolution to this
important issue.
Wherefore, the State of Texas prays this Court grant leave for the
filing of the petition for discretionary review of the en banc 4-3 decision
denying the State’s motion to recuse.
Respectfully submitted,
/s/Maureen Shelton
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
State Bar No. 00786852
Maureen.Shelton@co.wichita.tx.us
/s/John Gillespie
John Gillespie
First Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24010053
John.Gillespie@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 766-8177 fax
/s/John Brasher
John Brasher
Special Prosecutor
State Bar No. 02907800
brasherappeals@gmail.com
900 8th Street
Wichita Falls, Texas 76301
(940) 244-0244 phone
(940) 244-0245 fax
Attorneys for Appellee
State of Texas
Certificate of Compliance
I certify that this document contains 667 words. The body text is in
14 point font, and the footnote text is in 12 point font.
/s/John Gillespie
John Gillespie
Certificate of Service
I do certify that on March 6, 2015, a true and correct copy of the
above document has been served electronically to Michael F. Payne
(attorney for Antonio Leija, Jr.) at michaelfpayne@gmail.com and the State
Prosecuting Attorney’s Office at information@spa.texas.gov.
/s/John Gillespie
John Gillespie
Certificate of Conference
I do certify that on March 6, 2015, I attempted to confer with Michael
F. Payne via phone, but he was not available.
/s/John Gillespie
John Gillespie