                                                                                 PD-0173-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 11/5/2015 3:37:19 PM
November 5, 2015                                                 Accepted 11/5/2015 3:43:52 PM
                            CASE NO. PD-0173-15                                  ABEL ACOSTA
                                                                                         CLERK


                        In the Court of Criminal Appeals
                                 Austin, Texas

                            GORDON RAY LEWIS

                                   Petitioner

                                       V.

                              STATE OF TEXAS

                                  Respondent

                   Appealed from the Second Court of Appeals
                               Fort Worth, Texas

               Court of Appeals Cause No. 02-13-00367-CR


          MOTION FOR REHEARING OF PETITION FOR
                 DISCRETIONARY REVIEW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      NOW COMES Gordon Ray Lewis, petitioner, who makes and files the

following motion for rehearing of his petition for discretionary review

refused by the Court on October 14, 2015, and in support thereof would

respectfully show:




                                   Page 1 of 7
                                      ARGUMENT

I.       As the court of last resort for criminal matters, the Court
         should hear and decide cases like this one which, although
         it arises from unusual circumstances, provides provides a
         unique opportunity to establish precedent for future cases.


         In this case, Gordon Ray Lewis was tried before the same judge his

mother was convicted of threatening to kill because of his indictment.

Counsel for petitioner has been unable to find a similar factual scenario in

cases from Texas or other jurisdictions.               Even so, the guarantee of

fundamental fairness under the Due Process Clause1 and the state

constitution’s due course of law clause, as well as Tex. R. Civ. P. 18b(b)(1)’s

mandate that a judge be recused where his impartiality might reasonably be

questioned, is still very real and applicable to the case at bar.

         These questions are fact intensive and must be decided on a case by

case basis. But the Court’s refusal to order full briefing by the parties on

the Court’s refusal order stands that rule on its head because without

review, there can be no case by case basis. Instead the Court’s action allows

this important issue to be swept under the rug by an unpublished court of

appeals opinion.




1   U.S. CONST. AMEND. XIV; TEX. CONST. Art. I § 19.
                                         Page 2 of 7
         Lewis contends that he is entitled to a new trial because of the

administrative judge’s failure to recuse Judge Walton. It goes without

question that the state disagrees. Ultimately this Court may decide after

full briefing and possible argument that Lewis not entitled to a new trial.

But at least this Court will have further delineated the parameters of Rule

18b.

II.      Whether Lewis received a fair trial in a fair tribunal, as a
         basic requirement of due process, is a question of
         importance justifying this Court’s attention.
         This Court has held that due process requires a neutral and detached

hearing body or officer.2 This is precisely the same principle embraced by

the United States Supreme Court when it held that “[i]t is axiomatic that

‘[a] fair trial in a fair tribunal is a basic requirement of due process.’”3 As

the Supreme Court recognized,

         [S]uch a stringent rule may sometimes bar trial by judges who have
         no actual bias, and who would do their very best to weigh the scales of
         justice equally between contending parties. But to perform its high
         function in the best way ‘justice must satisfy the appearance of justice’
         Offutt v. United States, 348 U.S. 11, 14 (1954).4

2 Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006), citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973).

3 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009). Cf. In re
Murchison, 349 U.S. 133, 135 (1955)( “’Every procedure which would offer a possible
temptation to the average man as a judge…not to hold the balance nice, clear and true
between the state and the accused denies the latter due process of law.’”), quoting
Tumey v. Ohio, 273 U.S. 510, 532 (1927).

4   In re Murchison, 349 U.S. at 135.
                                        Page 3 of 7
         Lewis’ mother was convicted of retaliation and sentenced to six years

because she threatened Judge Walton after Lewis was indicted.5 The Court

can take judicial notice of the nature of the charges against Karen Adams

and the ultimate fact of her conviction.6

         The provisions of Rule 18b apply in both civil and criminal cases.7

For this reason the Court should heed Justice Spears’ eloquent comments

regarding the importance of the policies underlying recusal based on the

policies of fairness and impartiality:

         Public policy demands that the judge who sits in a case act with
         absolute impartiality. Pendergrass v. Beale, 59 Tex. 446, 447 (1883).
         Beyond the demand that a judge be impartial, however, is the
         requirement that a judge appear to be impartial so that no doubts or
         suspicions exist as to the fairness or integrity of the court. Aetna Life
         Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823
         (1986); Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64
         L.Ed.2d 182 (1980). The judiciary must strive not only to give all
         parties a fair trial but also to maintain a high level of public trust and
         confidence. Indemnity Ins. Co. v. McGee,163 Tex. 412, 356 S.W.2d
         666, 668 (Tex.1962). The legitimacy of the judicial process is based
         on the public's respect and on its confidence that the system settles
         controversies impartially and fairly. Judicial decisions rendered
         under circumstances that suggest bias, prejudice, or favoritism
         undermine the integrity of the courts, breed skepticism and mistrust,

5 Adams v. State, 2015 WL 505143 (Tex. App.—Fort Worth, pet. denied) (not designated
for publication).

6 See Huffman v. State, 479 S.W.2d 62, 68 (Tex. Crim. App. 1972); Turner v. State, 733
S.W.2d 218, 223 (Tex. Crim. App. 1987) (en banc); ex-parte Flores, 537 S.W.2d 458
(Tex. Crim. App. 1978) (court may take judicial notice of its own records in the same or
related proceedings involving same or nearly same parties).

7   Arnold v. State,853 S.W.2d 543, 544 (Tex. Crim. App. 1993).

                                        Page 4 of 7
         and thwart the very principles on which the judicial system is
         based. The judiciary must be extremely diligent in avoiding any
         appearance of impropriety and must hold itself to exacting standards
         lest it lose its legitimacy and suffer a loss of public confidence.
         Although the court reverses the trial court's judgment, it remains
         silent on the recusal question and thus fails to cure the perception of
         unfairness.8

         Simply put, Lewis’ mother was convicted of threatening to harm or

kill Judge Walton because Lewis was indicted for murder. Even though

Judge Walton correctly referred the recusal motion to the administrative

judge, the fact remains that because of the administrative judge’s decision

Lewis was tried for capital murder before the same judge his mother

threatened to kill for indicting him. If that does not describe a situation

where a judge’s impartiality “might reasonably be questioned”, then what

does?

         Judge Walton’s “actual state of mind, purity of heart, incorruptibility,

or lack of partiality are not the issue.”9 In this situation, “what matters is

not the reality of bias or prejudice but its appearance.”10 If that notion,

either embodied in Texas Rule of Civil Procedure 18b(b)(1) or in the more

fundamental notions of federal and state constitutional due process, means


8  Sun Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206
(Tex.1989)(Spears, J., concurring).

9   Nichols v. Alley, 71 F.3d. 347, 351 (10th Cir. 1995).

10   Litekey v. U.S. 510 U.S. 540, 548 (1994).
                                            Page 5 of 7
anything at all beyond mere lip service the Court should grant review on

this important issue, even if the ultimate result is to affirm Lewis’

conviction.

     WHEREFORE, PREMISES CONSIDERED, Gordon Ray Lewis prays

that his motion for rehearing of his petition for discretionary review in the

above styled and numbered cause be granted as to the specific question of

whether he was entitled to recusal of Judge Ralph H. Walton, Jr. at trial.

Lewis further prays that his petition for discretionary review be granted and

that the Court allow full briefing on the issue and that upon hearing in this

matter by the Court his judgment of conviction be reversed and the case

remanded for a new trial.

                             Respectfully submitted,

                             By: /s/Michael W. Minton
                                   MICHAEL W. MINTON
                                   State Bar No. 14194550

                                   THE LAW OFFICES OF
                                   MICHAEL W. MINTON, P.L.L.C.
                                   6100 Western Place, Suite W0541
                                   Fort Worth, Texas 76107
                                   mminton@mintonlaw.com
                                   Telephone: 817-377-9200
                                   Facsimile: 817-377-9201




                                 Page 6 of 7
                        CERTIFICATE OF SERVICE

      I hereby certify that on November 5, 2015, a true and correct copy of

the above and foregoing document was sent via the efiling service provider

and/or facsimile transmittal to all counsel of record in the above-styled and

numbered cause.

                                          /s/Michael W. Minton
                                          MICHAEL W. MINTON


                   CERTIFICATE OF COMPLIANCE

      I hereby certify in accordance with Tex. R. App. P. 9.4(i) that the

above and foregoing document was prepared with Microsoft Word for a

total of 1,405 words.

                                          /s/Michael W. Minton
                                          MICHAEL W. MINTON




                                 Page 7 of 7
