                                                                        WR-62,099-04
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 4/20/2015 3:52:54 PM
                                                           Accepted 4/20/2015 4:28:24 PM
                                                                           ABEL ACOSTA
                                                                                   CLERK
                       No. WR-62,099-04

                                                           RECEIVED
                                                   COURT OF CRIMINAL APPEALS
                        IN THE                             4/20/2015
                                                      ABEL ACOSTA, CLERK
              COURT OF CRIMINALAPPEALS
               FOR THE STATE OF TEXAS



                          Ex parte
                     Robert Lynn Pruett,


                           Applicant.


             _________________________________

       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-62,099-04



                                 IN THE
                       COURT OF CRIMINAL APPEALS
                         FOR THE STATE OF TEXAS

                                     Ex parte
                                Robert Lynn Pruett,

                                      Applicant.

                      _________________________________

            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 application

filed in this cause on April 17, 2015 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,

his impartiality with respect to the instant application 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.

                                         2
      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. Dow1
                            __________________________
                                     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




1
  On April 16, 2015, a motion for leave for counsel to appear in this cause number was filed.
The motion remains pending. Though counsel has yet to be granted leave to appear, he feels it
incumbent upon him to file this motion today, so as not to violate this Court’s Miscellaneous
Rule 11-003.

                                               4
                      CERTIFICATE OF SERVICE

      I certify that on the 20th 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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