                                                                                    PD-0241-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
MARCH 4, 2015
                              PD-0241-15                          Transmitted 3/4/2015 4:20:51 PM
                                                                    Accepted 3/4/2015 6:29:05 PM
                                                                                     ABEL ACOSTA
                           Cause No. ___________                                             CLERK



                             In the Court of Criminal
                                 Appeals of Texas


                               Antonio Leija, Jr.,
                                   Appellant

                                         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 Emergency Motion to Stay Proceedings in the
                        Second Court of Appeals


To the Court of Criminal Appeals:

       This Second Court of Appeals has recently issued an order denying

State’s Motion to Recuse the Hon. Justice Dauphinot on February 26,

2015.1 The State has promptly filed its Petition for Discretionary Review

today, March 4, 2015.2




1
       See Attachment A, The State’s Motion to Recuse the Hon. Justice Dauphinot
(attachments omitted) and Attachment B, Order of the Second Court of Appeals.
2
       See Tex. R. App. P. 68.2(a).
      The State filed a motion to stay appellate proceedings in this case the

day immediately following the Second Court of Appeals’ ruling.3         The

motion for stay was unopposed.4 As three out of seven justices sitting en

banc would have granted recusal, the motion for stay was made in good

faith and not for purposes of delay. Unfortunately, five days have passed

and the Second Court of Appeals has not yet ruled on the motion to stay.

      Texas Rule of Appellate Procedure 16.3(c) expressly provides that

“the denial of a recusal motion is reviewable.” Therefore, the State has a

clear right to file for petitionary review and have that petition determined

before opinions are issued on the merits in the contested cases. If Justice

Dauphinot has, in fact, demonstrated a disqualifying predisposition against

the Wichita County District Attorney’s Office that compromises her

appearance of being impartial, as three of colleagues have so determined

as expressed by their public votes to recuse her, then Justice Dauphinot

should not participate in the contested cases until the State has exhausted

its review under 16.3(c).

      The Second Court of Appeals issues opinions on Thursdays. The

State is seeking emergency relief since the Fort Worth Court of Appeals



3
      See Attachment C.
4
      Id.
                                      2
has failed to grant a stay pending the disposition of the State’s petition

pursuant to 16.3(c).

     Accordingly, the State prays that this court immediately order a stay

of proceedings in the Second Court of Appeals, and further order said court

to issue no opinions in this case until the State’s accompanying Petition is

heard.

                                     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




                                     3
                          Certificate of Compliance

      I certify that this document contains 326 words, counting all parts of

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The

body text is in 14 point font, and the footnote text is in 12 point font.

                                         /s/Maureen Shelton
                                         Maureen Shelton


                            Certificate of Service

      I do certify that on March 4, 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/Maureen Shelton
                                         Maureen Shelton


                          Certificate of Conference

      I certify that staying proceedings was discussed with Michael Payne

(attorney for Antonio Leija) in person on February 27, 2015, and that he is

unopposed to staying proceedings at the Court of Appeals.

                                         /s/Maureen Shelton
                                         Maureen Shelton




                                        4
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                            No. 02-13-00473-CR


                              Court of Appeals
                           Second District of Texas
                                Fort Worth


                             Antonio Leija, Jr.,
                                 Appellant

                                      v.

                               State of Texas,
                                  Appellee

On Appeal From No. 52,563-B in the 78th District Court of Wichita County,
                Texas, Hon. Judge Fudge Presiding


     State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot


To the Honorable Justices of this Court:

      The Wichita County Criminal District Attorney, Maureen Shelton, and

her staff have the upmost respect for the Fort Worth Court of Appeals and

its justices.   The District Attorney and her staff also take their oath to

uphold the Constitution and the law very seriously.

      Regrettably, a justice of this honorable court has leveled baseless

accusations against the District Attorney and her staff in a published,




                                      ϭ
dissenting opinion alleging an observable pattern of violating the

constitution and fundamental fairness.1

      A fair reading of the dissent reveals (1) the extremely serious nature

of the accusations; (2) that the accusations are completely unfounded with

no evidentiary support; (3) that the accusations were made with no way for

the District Attorney to respond or rebut with evidence; (4) that in dealing

with the Wichita County District Attorney as a party, the justice will not

follow the binding precedent of the Court of Criminal Appeals, credibility

determinations of the trial judge, or accurately represent the trial court

record; and (5) that the justice applies a different set of rules when the

WCDA is a party than she does in other cases.2

      Simply stated, this justice has so unequivocally expressed her

antagonism toward the Wichita County District Attorney and her staff in the

dissent and has demonstrated that it affects her ability to be fair and

impartial to this office as a party. Thus, this justice has unfortunately left

the Wichita County District Attorney with no choice but to seek her recusal

to preserve our Due Process rights to a fair and impartial hearing body.




1
      Ex parte Roberson, No. 02-13-00582-CR, 2015 WL 148476, at *5 (Tex. App.—
Fort Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J., dissenting).
2
      Id.
                                       Ϯ
     In light of the clearly articulated antagonism toward the Wichita

County District Attorney and her staff, as expressed in Justice Dauphinot’s

recent scathing dissenting opinion in Ex parte Byrias Roberson where

Justice Dauphinot expresses deeply-held, personal, speculative opinions

about the Wichita County District Attorney’s Office unrelated to the specific

facts before this Court in Ex parte Byrias Roberson, and where Justice

Dauphinot refuses to follow binding precedent and ignores the trial record,3

combined with her opinion in Johnson v. State being withdrawn on en banc

reconsideration, and her dissenting opinion on rehearing in same, the State

promptly files this motion and requests that Justice Dauphinot recuse

herself from the above-styled cases, because her impartiality might

reasonably be questioned, and because she has displayed and expressed

a personal bias or prejudice concerning the Wichita County Criminal District

Attorney’s Office (WCDA).

     Absent self-recusal, the State requests that members of the Fort

Worth Court of Appeals decide this motion en banc, as required by the

Texas Rules of Appellate Procedure.




3
     Id.
                                      ϯ
                                  Applicable law

      Due process requires a neutral and detached hearing body or

officer.4 A party may file a motion to recuse a justice before whom the case

is pending.5 The motion must be filed promptly after the party has reason

to believe that the justice should not participate in deciding the case. 6

When an appellate justice refuses to recuse herself, the remaining justices

in the court must hear the motion en banc.7 The challenged justice may

not sit with the remainder of the court to consider the motion against her.8

      The grounds for recusal on appeal are the same as those provided in

the Texas Rules of Civil Procedure.9 Specifically, a justice must recuse

herself if (1) the justice’s impartiality might reasonably be questioned or (2)

the justice has a personal bias or prejudice concerning the party.10

      While courts enjoy a presumption of impartiality,11 this presumption is

overcome if “a reasonable member of the public at large, knowing all the




4
      Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973); U.S. CONST. amend XIV.
5
      Tex. R. App. P. 16.3(a).
6
      Id.
7
      Tex. R. App. P. 16.3(b).
8
      Id.
9
      Tex. R. App. P. 16.2.
10
      Tex. R. Civ. P. 18b(b)(1)-(2).
11
      Brumit, 206 S.W.3d at 645.
                                         ϰ
facts in the public domain concerning the judge and the case, would have a

reasonable doubt that the judge is actually impartial.”12

      “Bias or prejudice” is a disposition or opinion that is somehow

wrongful or inappropriate, either because it is undeserved, resting upon

knowledge that the subject ought not to possess, or because it is excessive

in degree.13 Recusal is required for a justice with a bias showing a high

degree of antagonism.14 When bias is alleged as the ground for recusal,

the movant must provide sufficient evidence to establish that a reasonable

person, knowing all the circumstances involved, would harbor doubts as to

the impartiality of the judge.15

                                Standard of Review

      Recusal is required when the movant provides facts demonstrating

the presence of bias or partiality “of such nature and extent as to deny the




12
        Kirby v. Chapman, 917 S.W.2d 902, 908 (Tex. App.—Fort Worth 1996); Ex parte
Ellis, 275 S.W.3d 109 (Tex. App.—Austin 2008, no pet.); Kniatt v. State, 239 S.W.3d
910 (Tex. App.—Waco 2007, no pet); Burkett v. State, 196 S.W.3d 892, 896 (Tex.
App.—Texarkana 2006, no pet.); Sears v. Olivarez, 28 S.W.3d 611, 615 (Tex. App.—
Corpus Christi 2000). See Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) (“Because I
believe a reasonable member of the public at large, knowing all the facts in the public
domain, would doubt that the justices … are actually impartial I recuse myself from
participation in all matters related to this cause.”).
13
        Liteky v. U.S., 510 U.S. 540 (1994).
14
        Roman v. State, 145 S.W.3d 316 (Tex. App.—Houston 2004, pet. ref’d).
15
        Abdygapparova v. State, 243 S.W.3d 191 (Tex. App.—San Antonio, pet. ref’d),
citing Kemp, 846 S.W.2d at 305.
                                           ϱ
movant due process of law.” 16 The Court should recuse a judge who

displays an “attitude or state of mind so resistant to fair and dispassionate

inquiry” as to cause a reasonable member of the public to question the

objective nature of the judge’s rulings. 17           Evidence of a “deep-seated

favoritism or antagonism that would make fair judgment impossible”

necessitates recusal.18 The right to an impartial judge is so important that

its violation constitutes a structural error that defies harm analysis.19

     I.     Justice Dauphinot has publicly expressed a high degree of
            antagonism toward the Wichita County Criminal District
            Attorney’s Office.

          Justice Dauphinot’s own words in her recent dissent in Ex parte

Byrias Roberson20 and her actions in departing from the binding case law

and the record of the case are the best evidence of the high degree of

antagonism that she has formed toward the WCDA and its prosecutorial

staff as a whole.




16
        Id., citing Office of Pub. Util. Counsel v. Public Util. Comm’n, 185 S.W.3d 555,
574 (Tex. App.—Austin 2006, pet. denied) and Roman, 145 S.W.3d at 321.
17
        Liteky, 510 U.S. at 557-58 (Kennedy, J., concurring).
18
        Liteky, 510 U.S. at 555.
19
        Abdygapparova, 243 S.W.3d at 209, citing Arizona v. Fulminante, 499 U.S. 279,
309 (1991); Chapman v. California, 386 U.S. 18, 23 & n. 8 (1967); and Turney v. Ohio,
273 U.S. 510 (1927).
20
        No. 02-13-00582-CR, 2015 WL 148476 (Tex. App.—Fort Worth Jan. 8, 2015, no
pet. h.) (Dauphinot, J., dissenting).
                                            ϲ
     1. Justice Dauphinot’s hostile and injudicious language shows her
        high degree of antagonism.

       First, Justice Dauphinot’s seething dissent uses hostile and

injudicious language to describe the WCDA. The language itself shows the

significant antagonism that Justice Dauphinot possesses for the WCDA.

       Justice Dauphinot begins by equating the Wichita County District

Attorney with a popular emperor and declaring that she has no clothes on:

“I believe appellate courts are obligated to admit that the emperor is

wearing no clothes, no matter how popular the emperor might be.”21

     The very selection of the “Emperor-has-no-clothes” bromide coupled

with the additional reference of “no matter how popular the emperor might

be” are improper for a dispassionate appellate justice simply judging the

facts before her. Rather, they clearly express a high degree of animus by

Justice Dauphinot toward the alleged, unclothed, yet popular emperor: the

elected District Attorney of Wichita County. The fact that Justice Dauphinot

elects to frame her entire dissent as telling a naked emperor a few things

(i.e. about alleged discovery improprieties) reveals that this is about more

than the facts of the misdemeanor case before the Court; rather it is about

Justice Dauphinot’s general antagonism toward the elected District



21
       Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
                                          ϳ
Attorney of Wichita County.22 Justice Dauphinot’s choice of that particular

analogy shows an improperly demeaning and non-judicial tone by an

appellate justice toward one of the parties of an appeal.

     2. Justice Dauphinot expresses general opinions that she has
        formed about the Wichita County District Attorney and her staff
        that she clearly carries from case-to-case.

       Second, instead of limiting her dissent to the issues before the court

in Roberson, Justice Dauphinot vividly expresses general opinions that she

has formed against the WCDA in general. First, as she directs her dissent

to the popular, yet unclothed emperor (i.e. the elected District Attorney), it

is clear this opinion is about far more than the issues before the Court in Ex

parte Roberson. Justice Dauphinot confirms this in the second paragraph

when she states, “[a]ppellate judges are in a better position than trial

judges to see patterns of conduct.” 23 Justice Dauphinot then casts this

case as part of an observed pattern: “appellate judges have an obligation to

speak up when observed patterns show a course of conduct at odds with

constitutional mandates and fundamental fairness.”24




22
        The reference to “no matter how popular the emperor may be” makes it clear that
this is directed to the District Attorney, the only elected member of the District Attorney’s
Office, rather than the misdemeanor investigator or misdemeanor prosecutor.
“Emperor” clearly refers to the one in charge—i.e. the elected District Attorney.
23
        Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
24
        Id. at *5-6.
                                              ϴ
        It is clear from Justice Dauphinot’s own words that she is looking

beyond the record in this case to “observed patterns” and that these

“observed patterns” have prompted her to “speak up” and tell the popular,

yet unclothed emperor (the elected District Attorney) that her office is “at

odds with constitutional mandates and fundamental fairness.”25

        Justice Dauphinot concludes her dissent by placing Ex parte

Roberson within an observed pattern by citing Dabney v. State, Pitman v.

State, and Juarez v. State. Justice Dauphinot could not be clearer: she

would decide Ex parte Roberson not just on the record before the Court,

but she would use an observed pattern as her rationale for deciding the

case and impugning the motivations and integrity of the Wichita County

District Attorney and her staff, including the misdemeanor prosecutor and

investigator.   Thus, Justice Dauphinot has admitted she has formed

opinions about the WCDA that she carries from case-to-case that influence

her judgment and that even outweigh the record before her in any particular

case.




25
        Id.
                                     ϵ
     3. Justice Dauphinot’s antagonism to the WCDA is demonstrated
        by her willingness to substitute her judgment for the trial judge’s
        on matters of credibility determination and by ignoring settled,
        binding case law.

       Justice Dauphinot’s deep-seated and demonstrated antagonism

toward the WCDA has significant consequences:                  it is so great that it

justified her substituting her own judgment for the trial judge’s on issues of

credibility determination and ignoring the settled, binding case law which

the majority easily applied.

       This Court is required to follow binding precedent of the Court of

Criminal Appeals and credibility determinations of the trial judge.26 Justice

Dauphinot is a long-tenured and experienced jurist and knows that she is

bound by precedent, by credibility determinations by the trial judge, and by

the record in the case.27 Since Justice Dauphinot ignores the credibility


26
        See Vance v. Hatten, 508 S.W.2d 625 (Tex. Crim. App. 1974) (“no other court of
this state has the authority to overrule or circumvent [the Court of Criminal Appeals’]
decisions or disobey its mandates” and to question this “would render the entire
appellate process nothing more than an exercise in futility.”); Francis v. State, 428
S.W.3d 850, 855 (Tex. Crim. App. 2014) (“An appellate court must pay almost absolute
deference to the trial court’s findings of fact based on determinations of credibility or
demeanor…”).
27
        See, e.g. State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010),
aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) (Dauphinot, J., dissenting) (“We cannot
and must not substitute our determination of the facts and the credibility of the
witnesses in order to achieve the result we believe the trial court should have
reached.”); State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no
pet.) (Justice Dauphinot states, “Because a decision of the court of criminal appeals is
binding precedent, we are compelled to comply with its dictates.”); Jordy v. State, 969
S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.) (Justice Dauphinot explains
“When the findings are based on an evaluation of a witnesses’ credibility and demeanor,
                                           ϭϬ
determinations of the trial judge, substitutes her own credibility estimation

for the trial judge’s, and ignores settled precedent and the record in cases

involving the WCDA, she must be harboring a deep-seated antagonism

toward the WCDA. Any one of these would be a serious departure from

judicial norms; taken together they show her undeniable animus and its

influence.

   a) Justice Dauphinot would substitute her credibility judgment for
      the trial judge based upon the “observed patterns”
      she references.

      Even though it is well-established that a trial judge’s determinations of

matters of credibility entitled to almost total deference from an appellate

court, Justice Dauphinot would ignore this precedent because she insists

she is in a better position than the trial judge to discern the motivations of

the DA investigator and the WCDA.28 Justice Dauphinot unambiguously

states, “[u]nlike trial judges, who primarily see only the conduct in the

courtrooms over which they preside, appellate courts are presented with

records from other courts in that county…Appellate judges are in a better




the appellate court should afford almost total deference to the trial court’s fact
findings.”).
28
       Guzman v. State, 995 S.W.2d at 87; Jordy v. State, 969 S.W.2d 528, 532 (Tex.
App.—Fort Worth 1998, no pet.) ( “When the findings are based on an evaluation of a
witnesses’ credibility and demeanor, the appellate court should afford almost total
deference to the trial court’s fact findings.”).
                                         ϭϭ
position than the trial judge to see patterns of conduct.”29 Thus, Justice

Dauphinot begins her dissent by stating why she believes she is in a better

position than the trial judge to know what was really going on in the County

Court at Law #1 of Wichita County.

     Justice Dauphinot cites the trial judge’s credibility determination

relating to Investigator Cavinder’s conduct: “And I’m not casting fault on

Investigator Cavinder at all. I understand that was an honest mistake. I

completely believe that he believed he was speaking to Ms. Steele.” 30

Then, Justice Dauphinot promptly ignores this credibility determination of

the trial judge and instead substitutes her own judgment: “The record casts

doubt on Cavinder’s testimony concerning his own knowledge.”31 Despite

the trial judge stating on the record that he was not casting fault on

Investigator Cavinder, that it was an “honest mistake” and that he

completely believed Cavinder, Justice Dauphinot instead implicitly calls

Cavinder a liar and relates that she does not believe him.32

     Justice Dauphinot, based upon her antagonism toward the WCDA

and the “observed patterns” of abuse that she claims to have discerned,

has subsumed a power not granted to her by the Rules of Appellate

29
     Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting).
30
     Id. at *7.
31
     Id. at *7.
32
     Id. at *8.
                                        ϭϮ
Procedure, the Court of Criminal Appeals or the law of the State of Texas:

the power to re-determine issues of credibility. 33            This is irrefutable

evidence of the high antagonism that Justice Dauphinot expresses toward

the WCDA.

     b) Justice Dauphinot’s antagonism toward the WCDA is also
        evidenced by her refusal to apply the binding precedent.

       While Justice Dauphinot recites that the Court of Criminal Appeals

requires proof that the prosecution intended to cause a mistrial for jeopardy

to bar a second prosecution, Justice Dauphinot ignores that standard in

favor of her own standard: “At some point, appellate courts must hold that

the    conduct    is   so   egregious     that   the   party   cannot    avoid   its

consequences.”34 Instead of applying the Court of Criminal Appeals factors

in Ex parte Wheeler (as the majority opinion does), Justice Dauphinot

ignores the Wheeler factors and seeks to apply her own standard

formulated ad hoc, unmoored from the precedent of the Court of Criminal

Appeals. 35      This is not a situation where Justice Dauphinot simply

disagrees with the majority about the particular Wheeler factors or how

much weight to give them; rather, Justice Dauphinot would reverse the



33
       See Francis, 428 S.W.3d at 855; Guzman, 995 S.W.2d at 87.
34
       Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
35
       Roberson, 2015 WL 148476 at *10-11 (Dauphinot, J., dissenting).
                                         ϭϯ
case without reference to the binding precedent.36 The only explanation for

Justice Dauphinot failing to engage and apply binding precedent cited in

the majority opinion is that she is solely motivated by her antagonism

toward the WCDA.

     c) Justice Dauphinot’s antagonism is further displayed by the
        unwarranted speculation and assumptions that she makes in Ex
        parte Roberson.

       In addition to ignoring the credibility determination of the trial judge

and failing to apply binding precedent, Justice Dauphinot’s dissent also

contains unsupported speculations and assumptions which clearly flow

from her antagonism toward the WCDA.37

       In rejecting Investigator Cavinder’s sworn testimony, impugning him

as a liar, and rejecting the trial judge’s determination that Investigator

Cavinder testified honestly, Justice Dauphinot seeks a motivation for

Investigator Cavinder’s actions other than an “honest mistake.” 38 Thus,

Justice Dapuhinot advances a theory that Investigator Cavinder’s actions

were part of the prosecutor’s strategy to obtain more time to give discovery

notice. 39   Justice Dauphinot’s theory was that the prosecutor and the



36
       Id.
37
       Id. at *6-10.
38
       Id. at *7-8.
39
       Id. at *10-11.
                                       ϭϰ
investigator colluded to obtain a mistrial so that the prosecutor could have

more time to give extraneous notice concerning the previous encounter.40

      First, there is no evidence in the record from either Investigator

Cavinder, nor the prosecutor, nor any other witness to support this theory

as the reason for Investigator Cavinder’s actions.41

      Secondly, there had been no ruling by the trial court excluding

anything; rather, the trial judge had just granted a motion-in-limine.42 It is

well-established law that a motion-in-limine preserves nothing for review

and just requires the parties to approach.43

      Third, the prosecutor actually stated on the record that she had no

intent to mention the previous entry except if the defense questioned

whether the officers were familiar with the defendant.44

      Fourth, Justice Dauphinot claims the prosecutor engaged in a

“conscious decision” to withhold mandated discovery as a trial tactic. 45

There is simply no support that the prosecutor engaged in any trial tactic,

that the prosecutor made a “conscious decision,” or that the information



40
       Id. at *10-11.
41
       State’s Exhibit I, III R.R. at 156-158 (testimony of Donnie Cavinder) & IV R.R. at
5-7 (testimony of Juror Vale).
42
       Attachment A, III R.R. at 5.
43
       Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).
44
       Attachment A, III R.R. at 5-6.
45
       Roberson, 2015 WL 148476 at *9 (Dauphinot, J., dissenting).
                                            ϭϱ
even needed to be disclosed.46 Additionally, no offer of proof or evidentiary
                      47
ruling was made            thus, Justice Dauphinot elevated speculation to

established fact without regard to the trial record.48

      Fifth, while Justice Dauphinot speculates that the prosecutor plotted

with the investigator to cause a mistrial so the prosecutor could have more

time to offer extraneous notice in a new case, the trial judge had indicated

that he was inclined to let the officers say they were familiar with the

defendant (which is what the prosecutor wanted). 49 So, while the court

made no ruling more than a motion in limine, the court indicated that the

prosecutor would be able to ask the officers whether they were familiar with

the defendant from the past.50 Thus, Justice Dauphinot’s speculation as to

a plot to obtain a mistrial is completely misguided. Justice Dauphinot’s

animus to the WCDA is so great that she sees motives for improper

conduct which are not born-out by the record.

      Sixth, while Justice Dauphinot states “[t]he prosecution did not

provide mandated discovery to the defense,” this proposition is also


46
      See Attachment A, IV R.R. at 9 (“I understand that was an honest mistake. I
completely believe that [Cavinder] believed he was speaking to Ms. Steele.”). See also
Attachment A, III R.R. at 4-14 (hearing on motions in limine). See also generally
Attachment A, I R.R. (showing no hearing requesting compelled discovery).
47
      See Attachment A, III R.R. (motion in limine and trial on the merits).
48
      Roberson, 2015 WL148476 at *11 (Dauphinot, J., dissenting).
49
      Attachment A, III R.R. at 6.
50
      Id.
                                          ϭϲ
speculation without any evidentiary support. 51             While there was some

discussion on the record of what the prosecutor would ask “if defense

counsel intends to challenge the legality of that entry,”52 there was never an

offer of proof in the record or a ruling by the trial judge.53 A motion in limine

is not a ruling on admissibility.54 Yet, Justice Dauphinot states “[t]he trial

judge ruled that the notice of extraneous acts of misconduct that the State

intended to offer into evidence was untimely and that the evidence,

presumably, were inadmissible.”55 When he granted the limine, the trial

judge stated that: “Without hearing [the witnesses], I’d be inclined to say

they might have had previous contact or something like that that’s how they

recognized. But to go any further might be a problem. But we’ll discuss

that. So I’ll go ahead and grant that limine on that ground. Make sure you

come up before you start with them.”56

      Thus, Justice Dauphinot conflates a ruling on a motion in limine with

an evidentiary ruling at trial when she wrongly stated that the trial judge had

“ruled that the notice of extraneous acts of misconduct that the State




51
      Roberson, 2015 WL 1484765 at *11 (Dauphinot, J., dissenting).
52
      Attachment A, III R.R. at 5.
53
      See Attachment A, III R.R. (motion in limine and trial on the merits).
54
      Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).
55
      Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).
56
      See Attachment A, III R.R. at 6 (transcript excerpts in Roberson).
                                           ϭϳ
intended to offer into evidence was untimely and that the evidence,

presumably, was inadmissible.”57 The trial judge made no such ruling.58

      Justice Dauphinot, herself, has previously stated that “The granting of

a motion in limine is not a ruling on the admissibility of the evidence and

does not preserve error. A motion in limine simply prohibits references to

specific issues without first obtaining a ruling on the admissibility of those

issues outside the presence of the jury.” 59              Justice Dauphinot clearly

understands the difference between a ruling on a motion in limine and an

evidentiary ruling.60 That Justice Dauphinot would misrepresent a ruling on

a motion in limine as an evidentiary ruling can only be motivated by her

high antagonism to the WCDA and demonstrates that the she applies a

different set of rules when the WCDA is a party than she does in other

cases.61



57
        Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).
58
        See Attachment A, III R.R. at 4-14 (hearing on motions in limine).
59
        BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth
2014, no pet. history).
60
        Id.
61
        Compare BNSF Railway Co., 434 S.W.3d at 699 (Justice Dauphinot states: “The
granting of a motion in limine is not a ruling on the admissibility of the evidence and
does not preserve error. A motion in limine simply prohibits references to specific issues
without first obtaining a ruling on the admissibility of those issues outside the presence
of the jury.”) with Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (“The trial
judge ruled that the notice of extraneous acts of misconduct that the State intended to
offer into evidence was untimely and that the evidence, presumably, was
inadmissible.”). It is clear when the party is not the WCDA, Justice Dauphinot
understands a ruling on a motion in limine is not an evidentiary ruling.
                                           ϭϴ
   II.     The Wichita County District Attorney denies in the strongest
           terms possible Justice Dauphinot’s outrageous suggestion
           that her office engages in a pattern of misconduct that
           violates the constitution and fundamental fairness.

           Further, Justice Dauphinot violated judicial principles by
           making such a sweeping pronouncement on extremely limited
           information when it was not a case or controversy before the
           court and the parties had no opportunity to provide testimony
           or evidence on Justice Dauphinot’s alleged pattern to a trial
           court.

         First, the Wichita County District Attorney denies in the strongest

terms possible Justice Dauphinot’s outrageous suggestion that her office

engages in a pattern of misconduct that violates the constitution and

fundamental fairness. The Wichita County District Attorney takes her oath

to enforce the Constitution and the laws of the State of Texas extremely

seriously.

         Second, Justice Dauphinot’s assertion is all the more indefensible

because (1) the Wichita County District Attorney’s Office never received an

opportunity before a trial court as a fact-finder to offer facts or evidence to

show the utter fallaciousness of this assertion since it was not an issue

before the trial court and Justice Dauphinot is expressing opinion on facts

not in the record in the Roberson case; (2) Justice Dauphinot cites three

cases for her alleged pattern out of thousands of cases handled by the




                                      ϭϵ
WCDA; and (3) the three cases that she cites offer no support for her

conclusion.

      1. The WCDA never had an opportunity to offer evidence or
         testimony about the alleged pattern because it was not an
         issue before the trial court.

      While Justice Dauphinot cites “observed patterns” that “show a

course of conduct at odds with constitutional mandates and fundamental

fairness” as the basis for her dissent, this supposed pattern was not a

controversy in issue before the trial judge. 62 There was no allegation

before the trial judge of any such pattern.63 Rather, the only issues before

the trial court were (1) what had happened; and (2) why did it happen.64

The trial court never asked for, heard, or received any evidence about any

pattern of misconduct by the WCDA.65 Therefore, the WCDA has never

been afforded any opportunity to offer testimony or evidence rebutting any

such pattern.      Appellate courts are not evidentiary courts. 66 When an

appellate court needs additional evidence to decide a point, the appropriate




62
       See Attachment A, IV-V R.R. (motion for mistrial and hearing on habeas
application).
63
       Id.
64
       Id.
65
       Id.
66
       See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas
2013, no pet. history) (explaining that appellate courts do not take testimony or receive
evidence).
                                            ϮϬ
remedy is to abate the appeal and refer the case for an evidentiary hearing

in a trial court.67

      Since an alleged pattern was not an issue before the trial court and

the appellate court did not abate the appeal and remand for such a

determination, the WCDA never had the opportunity to offer any evidence

to refute the erroneous claim. To state such a serious conclusion as fact in

the dissent of a published opinion when there has been no evidentiary

hearing before a trial court on the issue is completely contrary to the tenets

of judicial fairness, the Texas Rules of Appellate Procedure, and the

proscription against issuing advisory opinions.68 This further demonstrates

Justice Dauphinot’s antagonism to the WCDA: she makes a sweeping

advisory pronouncement without the WCDA having an opportunity to rebut

that pronouncement.

      2. Justice Dauphinot cites three opinions out of thousands of
         cases handled by the WCDA.

      For the supposed pattern that she has observed, Justice Dauphinot

cites three cases handled by the WCDA. These cases that she cites span


67
       Tex. R. App. P. 44.4.
68
       Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised
and necessary to final disposition of the appeal); see also Garrett v. State, 749 S.W.2d
784, 803 (Tex. Crim. App. 1988) (explaining that “judicial power does not include the
power to issue advisory opinions” which result “when a court attempts to decide an
issue that does not arise from an actual controversy capable of a final adjudication.”)
overruled on other grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
                                           Ϯϭ
a period of over five years. 69 During those five years, the WCDA has

handled thousands of criminal cases, multiple scores of which have gone

before this honorable Court of Appeals. The lack of an evidentiary hearing

on such an important issue is further highlighted when Justice Dauphinot

attempts to discern a pattern of misconduct out of three cases in six years

out of thousands of cases handled.            Even if the three cases she cited

supported her proposition (which they do not), three cases in five years is

no substitute for an evidentiary hearing on such an important question.

      3. The three cases that Justice Dauphinot cites do not support
         the pattern she alleges.

      The cases cited by Justice Dauphinot fail to establish any pattern.
                                                              70
First, Justice Dauphinot cites Dabney v. State,                    an unpublished

memorandum opinion that was released on October 16, 2014. The State

currently has a pending application for discretionary review before the

Court of Criminal Appeals on Dabney. 71 While Justice Dauphinot, who

authored the Dabney opinion, disputed the trial court’s decision, the trial




69
        Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting).
70
        No. 02-12-00530-CR, 2014 WL 5307178, at *7–9 (Tex. App.—Fort Worth Oct.
16, 2014, pet. filed) (mem. op., not designated for publication).
71
        See THE STATE’S PETITION FOR DISCRETIONARY REVIEW , Dabney v. State, No. PD-
1515-14 (Tex. Crim. App. Nov. 12, 2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a-
4018-8b70-6fbb32cd8db1.
                                         ϮϮ
judge had admitted the evidence as rebuttal evidence. 72 Judge Robert

Brotherton, an experienced trial judge who presided over the case, did not

believe that the WCDA had engaged in any discovery violation as

evidenced by his decision to admit the evidence. 73 Additionally, Justice

Walker dissented in Dabney and would have affirmed the admission of the

evidence as rebuttal evidence.74 So, Justice Dauphinot cites to Dabney, an

opinion that she authored, for part of her allegation that the WCDA

engages in discovery abuses, even though Judge Brotherton in Dabney

found no such discovery abuse and Justice Walker discerned no such

abuse. Furthermore, the State questions the fairness of using an opinion

where the asserted issue is the subject of a pending petition for

discretionary review.75

      Second, Justice Dauphinot cites Pitman v. State.76 In Pitman, this

Court affirmed the judgment and sentence finding that the appellant had

failed to satisfy the second and third Brady prongs.77 The portion of the

opinion that Justice Dauphinot is apparently citing to – dealing with the

72
        Attachment B, VI R.R. at 21, 33.
73
        Id.
74
        Dabney, 2014 WL 5307178 at *10-11 (Walker, J., dissenting).
75
        See THE STATE’S PETITION FOR DISCRETIONARY REVIEW , Dabney v. State, No. PD-
1515-14 (Tex. Crim. App. Nov. 12, 2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a-
4018-8b70-6fbb32cd8db1
76
        Pittman v. State, 372 S.W.3d 261, 270 (Tex. App.—Fort Worth 2012, pet ref’d).
77
        Id.
                                          Ϯϯ
WCDA’s policy concerning CPS records – was “not necessary to the

disposition of this appeal” and, therefore, mere dicta.78 Furthermore, the

position taken by the WCDA – that the CPS records should be subpoenaed

and presented to the trial court for in camera review because of the

confidentiality of CPS records – is now supported by 39.14(a) of the Code

of Criminal Procedure excluding records deemed confidential under

Section 264.408 of the Family Code. 79                This statutory confidentiality

recognizes the unique attorney-client relationship the Civil Division of the

District Attorney’s Office has with the Department of Family and Protective

Services and how inappropriate imputing all such attorney-client knowledge

to the criminal prosecutor in a prosecution of an opposing party in a child

protective services case would be. Therefore, not only is the portion of

Pitman that Justice Dauphinot cites dicta (which in itself would be

inappropriate to use as evidence of a pattern), but the issue of

attorney/client privilege between CPS and WCDA in Pitman is now




78
       Id. at 270.
79
       Tex. Code Crim. Proc. art. 39.14 (West Suppl. 2014) (“Subject to the restrictions
provided by Section 264.408 Family Code…”) & Tex. Fam. Code Ann. § 264.408 (West
2014) (“[CPS documents] may only be disclosed for purposes consistent with this
chapter.”; the only exceptions to this confidentiality for a prosecuting attorney are “as
needed to provide services under this chapter” or for a “video recording of an interview
of a child”) (emphasis added)
                                           Ϯϰ
supported by statute due to the amendment of 39.14(a) of the Code of

Criminal Procedure.80

      Third, Justice Dauphinot cites Juarez v. State,81 another unpublished,

memorandum opinion. The Juarez case was handled under the previous

District Attorney, Barry Macha.82 While on appeal the appellant claimed

lack of notice of an extraneous offense, this Court overruled the point of

error for lack of preservation.83 So, in citing Juarez, Justice Dauphinot was

citing to an appellant’s point of error that was neither preserved nor ruled

upon as part of her “observable pattern” of discovery abuses.84 Incredibly,

the fact that the merits of the case were not ruled upon by this Court does

not deter Justice Dauphinot from seeing her pattern of abuse from a mere

appellant point that was never reached.85

      For her alleged pattern, Justice Dauphinot has cited two cases where

the Court did not find a discovery violation.86 The third case she cites –

Dabney – currently has a petition for discretionary review pending before


80
      Id.
81
      No. 02-08-00167-CR, 2009 WL 1564926, at *1 & n.2 (Tex. App.—Fort Worth
June 4, 2009, no pet.) (mem. op., not designated for publication).
82
      Id.
83
      Id.
84
      Id.
85
      Id.
86
      Pitman, 372 S.W.3d at 268-70 & Juarez v. State, No. 02-08-00167-CR, 2009 WL
1564926, at *1 & n.2 (Tex. App.—Fort Worth June 4, 2009, no pet.) (mem. op., not
designated for publication)
                                       Ϯϱ
the Court of Criminal Appeals.87 Also, one of these three cases was under

a previous District Attorney.88 No fair observer would discern any pattern

from these three cases. That Justice Dauphinot sees a pattern in them

reveals that she has such a high degree of antagonism toward the WCDA

that she will see a pattern where none exists. This lack of pattern, alone,

would be enough to demonstrate Justice Dauphinot’s inability to be

impartial in judging cases involving the WCDA.

     III.     The close proximity in time between the WCDA prevailing on
              its motion for en banc reconsideration on the Joe Johnson
              appeal and this dissent suggests the basis for Justice
              Dauphinot’s antagonism toward the WCDA.

            The WCDA’s successful motion for en banc reconsideration in

Johnson v. State in October 2014 in which this Court withdrew Justice

Dauphinot’s memorandum opinion would appear, to an impartial observer,

as a motivation for Justice Dauphinot’s antagonism toward the WCDA.

            The memorandum opinion authored by Justice Dauphinot in Johnson

v. State made many factual assertions that were not supported by the

record. 89 The memorandum opinion’s reasoning was premised upon a


87
        See THE STATE’S PETITION FOR DISCRETIONARY REVIEW , Dabney v. State, No. PD-
1515-14 (Tex. Crim. App. Nov. 12, 2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a-
4018-8b70-6fbb32cd8db1
88
        Juarez, 2009 WL 1564926 at *1.
89
        Johnson v. State, No. 02-11-00253-CR, 2013 WL 531079 (Tex. App.—Fort
Worth Feb. 14, 2013) (mem. op, not designated for publication) (Johnson I), opinion
                                         Ϯϲ
false open-door theory not supported in the record.90 Because the reversal

would have caused a child rape victim to re-testify, the WCDA had no

choice but to file a motion for en banc reconsideration which detailed the

many factual errors that served as the premise of the false open-door

theory.91

      On October 9, 2014, a majority of this Court agreed, thereby

withdrawing Justice Dauphinot’s opinion, and affirming the conviction. 92

Justice Dauphinot dissented from the majority decision.93

      The State believes that to an impartial observer, it would appear to be

more than a coincidence that following a majority of this Court rectifying the

false open-door premise that formed the basis of her open-door theory in

Johnson v. State, Justice Dauphinot has since developed and expressed

such animus toward the WCDA where she is willing to ignore the trial

judge’s credibility determination, ignore binding precedent, and discern a

pattern of misconduct where none exists.94



withdrawn and superseded by Johnson v. State, No. 02-11-00253-CR, 2014 WL
5583345, at *1 (Tex. App.—Fort Worth Oct. 9, 2014) (en banc) (Johnson II); MOTION
FOR EN BANC RECONSIDERATION, Johnson v. State, No. 02-11-00253-CR (Tex. App.—Fort
Worth Feb. 22, 2013).
90
       Johnson I, 2013 WL 531079, at *1.
91
       Johnson II, 2014 WL 5583345, at *1.
92
       Id.
93
       Id. at *5.
94
       Compare Johnson II, 2014 WL 5583345, released Oct. 9, 2014
with Roberson, 2015 WL 148476 (Dauphinot, J., dissenting), released Jan. 8, 2015.
                                       Ϯϳ
      Any party to an appeal has a right under T.R.A.P. 49.7 to file for a

motion for en banc rehearing when the party believes the opinion is

founded on false premises and is contrary to the trial record in the case. A

party should be able to exercise that right without fear of reprisal by the

author of the opinion.    The State believes that an impartial observer,

reading Justice Dauphinot’s dissent in Roberson and the high level of

antagonism that it expresses toward the WCDA just a few months after the

WCDA prevailing on its motion for en banc reconsideration in Johnson,

would question Justice Dauphinot’s ability to be a fair and impartial judge.

                                Conclusion

      The State has shown that Justice Dauphinot has a high degree of

antagonism toward the WCDA that she carries with her from case-to-case.

The State has shown that “a reasonable member of the public at large,

knowing all the facts in the public domain concerning the judge and the

case, would have a reasonable doubt that [Justice Dauphinot] is actually

impartial” and that “a reasonable person, knowing all the circumstances

involved, would harbor doubts as to the impartiality of [Justice Dauphinot].”

The deep-seated antagonism that Justice Dauphinot holds affects her

ability to dispassionately apply the settled law from the Court of Criminal




                                      Ϯϴ
Appeals, her ability to defer to credibility determinations of the trial judge,

and her ability to distinguish between a ruling on a motion in limine and an

evidentiary ruling. In previous opinions she authored, Justice Dauphinot

has cited and applied the proper law in these areas; yet, when the WCDA

is a party, she now applies a different set of rules.95

       Justice Dauphinot has expressed an attitude so resistant to fair and

dispassionate inquiry as to cause a reasonable member of the public to

question the objective nature of her rulings in cases involving the WCDA.

Since the State has a due process right to have a neutral and detached

hearing body or officer, and since that due process right would be violated

by Justice Dauphinot sitting on these panels, recusal is proper.

                                          Prayer

       The State prays Justice Dauphinot recuse herself from the three

above-captioned cases. Absent a self-recusal, the State prays that this en

banc Court enter a finding that Justice Dauphinot should be recused.



95
         Compare BNSF Railway Co., 434 S.W.3d at 699 (“The granting of a motion in
limine is not a ruling on the admissibility of evidence and does not preserve error.”);
Stevenson, 993 S.W.2d at 867 (“Because a decision of the court of criminal appeals is
binding precedent, we are compelled to comply with its dictates.”); Jordy, 969 S.W.2d
at 531 (“the appellate court should afford almost total deference to the trial court’s fact
findings); with Roberson, 2015 WL 148476 at (Dauphinot, J., dissenting) (where she
claims a ruling on a limine is an evidentiary ruling, she fails to engage and apply the
Court of Criminal Appeals precedent to the issue at hand, and she fails to defer to the
trial judge’s credibility determination of Investigator Cavinder).
                                             Ϯϵ
                                         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


                          Certificate of Compliance

      I certify that this document contains 6,629 words, counting all parts of

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The

body text is in 14 point font, and the footnote text is in 12 point font.

                                         /s/Maureen Shelton
                                         Maureen Shelton




                                        ϯϬ
                           Certificate of Service

     I do certify that on January 21, 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.

                                      /s/Maureen Shelton
                                      Maureen Shelton

                        Certificate of Conference

     A conference was held on January 20, 2015 by telephone with

Michael F. Payne (attorney for Antonio Leija, Jr.) on the merits of this

motion, and he was not able to confer whether or not he was opposed

without speaking with his client first. He has not yet responded.

                                      /s/Maureen Shelton
                                      Maureen Shelton




                                     ϯϭ
                                                         FILE COPY




                     COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH

                        NO. 02-13-00319-CR


MICHAEL OLIVER SMITH                               APPELLANT

                                 V.

THE STATE OF TEXAS                                        STATE


                             ------------

        FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                    TRIAL COURT NO. 52,047-B

                             ------------

                        NO. 02-13-00473-CR


ANTONIO LEIJA, JR.                                 APPELLANT

                                 V.

THE STATE OF TEXAS                                        STATE


                             ------------

        FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                    TRIAL COURT NO. 52,563-B

                             ------------
                                                                         FILE COPY




                              NO. 02-13-00482-CR


KURLEY JAMES JOHNSON                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 53,445-C

                                    ------------

                                    ORDER
                                    ------------

      Currently pending before this court in each of the above referenced causes

is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed

January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each

cause under Texas Rule of Appellate Procedure 16.

      Rule 16 states that the grounds for recusal are the “same as those

provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R.

Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the

grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d

87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides

that a judge must recuse himself or herself in a proceeding in which the judge’s




                                         2
                                                                            FILE COPY




impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The

State’s motions challenge the impartiality of Justice Dauphinot under this rule.

      Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the

procedure to be followed for recusal of an appellate justice or judge:

      Before any further proceeding in the case, the challenged justice or
      judge must either remove himself or herself from all participation in
      the case or certify the matter to the entire court, which will decide the
      motion by a majority of the remaining judges sitting en banc. The
      challenged justice or judge must not sit with the remainder of the
      court to consider the motion as to him or her.

Tex. R. App. P. 16.3(b).

      Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the

recusal motions and prior to any further proceedings in these appeals, Justice

Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no

reason to recuse herself and certified the matter in writing to the remaining

members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This

court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App.

P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50

S.W.3d at 88. A majority of the remaining justices of the court could not agree on

a decision, so that fact was certified to the Chief Justice of the Supreme Court.

The Chief Justice temporarily assigned former Justice Rebecca Simmons as a

visiting justice to sit with the court of appeals to consider the motions. See Tex.

R. App. P. 41.2(b).




                                         3
                                                                        FILE COPY




      The visiting justice then met with the six remaining justices to deliberate

and decide the motions to recuse Justice Dauphinot by a vote of a majority of the

justices. Justice Dauphinot did not sit with the other members of the court when

her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50

S.W.3d at 88. The determination of whether recusal was necessary was made

on a case-specific, fact-intensive basis.   See McCullough, 50 S.W.3d at 89;

Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no

pet.) (order).

      The en banc court, Justice Dauphinot not participating, has carefully

examined the motions and the records as to the allegations pertaining to Justice

Dauphinot. The majority of the remaining justices have concluded that the

motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b).

Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above

referenced causes is denied.

      DATED February 26, 2015.



                                            PER CURIAM

EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment).

DAUPHINOT, J., not participating.

LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.




                                       4
                                                                                   ACCEPTED
                                                                              02-13-00473-CR
                                                                   SECOND COURT OF APPEALS
                                                                         FORT WORTH, TEXAS
                                                                        2/27/2015 10:24:40 AM
                                                                               DEBRA SPISAK
                                                                                       CLERK

                                 No. 02-13-00473-CR


                                Court of Appeals
                             Second District of Texas
                                  Fort Worth


                                 Antonio Leija, Jr.,
                                     Appellant

                                          v.

                                   State of Texas,
                                      Appellee

On Appeal From No. 52,563-B in the 78th District Court of Wichita County,
                Texas, Hon. Judge Fudge Presiding


              State’s Unopposed Motion to Stay Proceedings


To the Honorable Justices of this Court:

      This court has recently issued an order denying State’s Motion to

Recuse the Hon. Justice Dauphinot. The State will promptly file a Petition

for Discretionary Review to review this order, as permitted by the Texas

Rules of Appellate Procedure 16.3(c) and 68.1. While the State has 30

days to file this petition,1 it plans to file it next week.




1
      Tex. R. App. P. 68.2(a).
                                          1
     The State prays that this court stay further proceedings in this case

and not render an opinion until the Court of Criminal Appeals has acted on

the State’s Petition for Discretionary Review. This motion is made in good

faith, as three out of seven justices sitting en banc would have granted 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




                                     2
                          Certificate of Compliance

      I certify that this document contains 119 words, counting all parts of

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The

body text is in 14 point font, and the footnote text is in 12 point font.

                                         /s/Maureen Shelton
                                         Maureen Shelton


                            Certificate of Service

      I do certify that on February 27, 2015, a true and correct copy of the

above document has been served electronically to Michael Payne (attorney

for Antonio Leija) at michaelfpayne@gmail.com.

                                         /s/Maureen Shelton
                                         Maureen Shelton


                          Certificate of Conference

      I certify that this motion was discussed with Michael Payne (attorney

for Antonio Leija) in person on February 27, 2015, and that he is

unopposed to this motion.

                                         /s/Maureen Shelton
                                         Maureen Shelton




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