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 leave 1 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 CLERKDauphinot. Since this is such an unusual procedura l situation, the State

seeks leave for the filing of its petition for disc retionary 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 n o such restriction. The

Code of Criminal Procedure also contains no such li miting provision. Second, “review” means “to re-examine judicially...a

reconsideration.” 2 Thus, “is reviewable” means that the denial of th e order itself is subject to being “re-examined judicially... a reconsideration.” Third, T.R.A.P. 68.2 states that a petition for di scretionary review “must be filed within 30 days after...the day the cou rt of appeals’ judgment was rendered.” In this instance, the judgment of t he 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 i s later than 30-days from released opinions on Thursday, March 5, as is its c ustom. Thus, the State filed its petition for discretionary review on Wednesday, Mar ch 4, 2015. The State has since realized that it failed to accompany its petition f or discretionary review with a motion for leave; thus, the State has filed this motion. 2 B LACK ’ S L AW D ICTIONARY 1320 (6th ed. 1990).February 26, 2015, the date the judgment of the cou rt was released on the

State’s recusal motion), then the State would proce durally default its ability to appeal the en banc denial of the motion to recus e. Fourth, as review is still subject to the discreti on of this Court and motions to recuse appellate justices are exceedingl y 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 is suance of the threejudge opinion could serve as a sword of Damocles ha nging 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 pa rties and the awkward position for the justice. Sixth, T.R.A.P. 16.3(c) states the denial “is revi ewable.” However, if the Court required the State to wait until issuance of opinions and if the State prevailed in the opinion, then that would def eat review. As the State’s grounds for recusal are not case-specific b ut are based upon an antagonism demonstrated toward the Wichita County D istrict Attorney in

3 After an exhaustive search, the State could locat e no case law on 16.3(c) and an appeal of an order denying a motion to recuse an ap pellate justice.general, the State would then have to continue fili ng motions to recuse on

panels that Justice Dauphinot was appointed until i t finally lost on the

merits of the case at the Second Court to effectuat e review of the denial of recusal. Thus, judicial economy supports review an d a resolution to this important issue. Wherefore, the State of Texas prays this Court gran t 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. T he 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 cor rect copy of the above document has been served electronically to Mi chael 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 GillespieCertificate 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