                                                                          WR-62,099-03
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 4/8/2015 12:55:52 PM
                                                            Accepted 4/8/2015 1:12:29 PM
                                                                             ABEL ACOSTA
                                                                                     CLERK
                         No. WR-62,099-03
                                                              RECEIVED
                                                       COURT OF CRIMINAL APPEALS
                                                              4/8/2015
                                                         ABEL ACOSTA, CLERK
                         IN THE
               COURT OF CRIMINALAPPEALS
                FOR THE STATE OF TEXAS


                     In re Robert Lynn Pruett,

                             Petitioner,

                                 vs.

                         William Stephens,
           Director, Texas Department of Criminal Justice,
                  Correctional Institutions Division

                            Respondent.

              _________________________________

       MOTION TO RECUSE JUDGE BERT RICHARDSON
            _________________________________

                       CAPITAL CASE
MR. PRUETT IS SCHEDULED TO BE EXECUTED ON APRIL 28, 2015.
              _________________________________

                           David R. Dow
                     Texas Bar No. 06064900
                      ddow@central.uh.edu
                 University of Houston Law Center
                          100 Law Center
                   Houston, Texas 77204-6060
                       TEL: (713) 743-2171
                      FAX: (713) 743-2131
                                No. WR-62,099-03



                                IN THE
                      COURT OF CRIMINAL APPEALS
                        FOR THE STATE OF TEXAS


                            In re Robert Lynn Pruett,

                                     Petitioner,

                                         vs.

                               William Stephens,
                 Director, Texas Department of Criminal Justice,
                        Correctional Institutions Division

                                    Respondent.

                     _________________________________

            MOTION TO RECUSE JUDGE BERT RICHARDSON
                 _________________________________

      To avoid any appearance of impropriety and promote public confidence in

the integrity of the judiciary, Relator-Petitioner Robert Lynn Pruett asks that Judge

Bert Richardson recuse himself, or be recused by the Court, from further

participation in this case. The basis for this motion is that Judge Richardson

presided over the DNA proceedings in this case in the trial court. The petition

filed in this cause pertains to the evidence that was at issue in the trial court

proceedings over which Judge Richardson presided.
      The grounds for recusal of appellate judges are the same as the grounds for

the recusal of trial judges. See Tex. R. App. P. 16.2. Under Texas Rule of Civil

Procedure 18b(2), a judge must recuse himself in any proceeding in which:

      (a)    his impartiality might reasonably be questioned;

      (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).

      The standard for assessing judicial bias in this context is whether the

allegation of lack of impartiality is grounded on facts that would create doubts

concerning the judge’s impartiality – not in the mind of the judge himself, or even,

necessarily, in the mind of the party filing the motion, but rather in the mind of a

reasonable person with knowledge of all the circumstances involved. Kemp v.

State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992); see Rogers v. Bradley, 909

S.W.2d 872, 880-82 (Tex. 1995) (Enoch, J., responding to declaration of recusal).

The language of the rule is mandatory. The standard is an objective one: It

requires “the judge to recuse if ‘his impartiality might reasonably be questioned,’

regardless of the source or circumstances giving rise to the question of impartiality

and even though the source and circumstances may be beyond the judge’s volition

or control.” Rogers, 909 S.W.2d at 874 (Gammage, J., declaration of recusal).

      Because of Judge Richardson’s presiding over proceedings in the trial court,

                                         2
his impartiality with respect to the instant petition might reasonably be questioned

by a reasonable person. Moreover, if Judge Richardson acquired any knowledge

during those proceedings that was outside of the record on appeal received by this

Court, that knowledge would seem to require his recusal.

      If these proceedings were in the federal (rather than state) courts, Judge

Richardson’s recusal would be required. See 28 U.S.C. § 47 (“No judge shall hear

or determine an appeal from the decision of a case or issue tried by him.”).

Similarly, his recusal would be required if Texas was among the states to have

adopted the American Bar Association’s Model Code of Judicial Conduct. See

Model Code of Judicial Conduct R. 2.11(A)(6)(d) (requiring a judge to disqualify

himself if he “previously presided as a judge over the matter in another court”).

The federal rule reflects that a reasonable person would harbor doubts as to the

impartiality of an appellate court judge, when that same judge previously acted as

the trial court judge in the same case.




                                          3
                             PRAYER FOR RELIEF

      For the foregoing reasons, Mr. Pruett asks that Judge Richardson recuse

himself, or be recused by this Court, from the case.

                              Respectfully Submitted,



                                s/ David R. Dow
                         __________________________
                                  David R. Dow
                            Texas Bar No. 06064900
                        University of Houston Law Center
                                 100 Law Center
                           Houston, Texas 77204-6060
                              Tel. (713) 743-2171
                              Fax (713) 743-2131

                             Counsel for Robert Pruett




                                         4
                          CERTIFICATE OF SERVICE

      I certify that on the 8th day of April 2015, a true and correct copy of the
above legal document was delivered via email to:

      Jefferson Clendenin
      Assistant Attorney General
      Criminal Appeals Division
      Texas Bar No. 24059589
      P.O. Box 12548, Capitol Station
      Austin, Texas 78711
      Tel. (512) 936-1600
      Fax (512) 320-8132
      Email jay.clendenin@texasattorneygeneral.gov


      Melinda Fletcher
      Special Prosecution Unit
      mfletcher@sputexas.org

                                                     s/ David R. Dow
                                                     _________________________
                                                     David R. Dow




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