                                                                                       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
