Cause No. PD-0241-15 

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 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 

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

CLERK
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 threejudge 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