No. WR-62,099-04

IN THE

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

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

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;
2

(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.
3

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. 
4

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.
5

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