Cause No. ___________ 

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 Emergency Motion to Stay Proceedings in the 

Second Court of Appeals 

To the Court of Criminal Appeals: 

 This Second Court of Appeals has recently issued an order denying 

State’s Motion to Recuse the Hon. Justice Dauphinot on February 26, 

2015.1

 The State has promptly filed its Petition for Discretionary Review 

today, March 4, 2015.2

 

1

 See Attachment A, The State’s Motion to Recuse the Hon. Justice Dauphinot 

(attachments omitted) and Attachment B, Order of the Second Court of Appeals. 

2

 See Tex. R. App. P. 68.2(a). 

PD-0241-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/4/2015 4:20:51 PM

Accepted 3/4/2015 6:29:05 PM

ABEL ACOSTA

CLERK
2 

 The State filed a motion to stay appellate proceedings in this case the 

day immediately following the Second Court of Appeals’ ruling.3 The 

motion for stay was unopposed.4 As three out of seven justices sitting en 

banc would have granted recusal, the motion for stay was made in good 

faith and not for purposes of delay. Unfortunately, five days have passed 

and the Second Court of Appeals has not yet ruled on the motion to stay. 

 Texas Rule of Appellate Procedure 16.3(c) expressly provides that 

“the denial of a recusal motion is reviewable.” Therefore, the State has a 

clear right to file for petitionary review and have that petition determined 

before opinions are issued on the merits in the contested cases. If Justice 

Dauphinot has, in fact, demonstrated a disqualifying predisposition against 

the Wichita County District Attorney’s Office that compromises her 

appearance of being impartial, as three of colleagues have so determined 

as expressed by their public votes to recuse her, then Justice Dauphinot 

should not participate in the contested cases until the State has exhausted 

its review under 16.3(c). 

 The Second Court of Appeals issues opinions on Thursdays. The 

State is seeking emergency relief since the Fort Worth Court of Appeals 

 

3

 See Attachment C. 

4

 Id. 
3 

has failed to grant a stay pending the disposition of the State’s petition 

pursuant to 16.3(c). 

Accordingly, the State prays that this court immediately order a stay 

of proceedings in the Second Court of Appeals, and further order said court 

to issue no opinions in this case until the State’s accompanying Petition is 

heard.

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 

 
4 

Certificate of Compliance 

 I certify that this document contains 326 words, counting all parts of 

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The 

body text is in 14 point font, and the footnote text is in 12 point font. 

/s/Maureen Shelton 

Maureen Shelton 

Certificate of Service

 I do certify that on March 4, 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/Maureen Shelton 

Maureen Shelton 

Certificate of Conference 

I certify that staying proceedings was discussed with Michael Payne 

(attorney for Antonio Leija) in person on February 27, 2015, and that he is 

unopposed to staying proceedings at the Court of Appeals. 

/s/Maureen Shelton 

Maureen Shelton 


No. 02-13-00473-CR 

Court of Appeals 

Second District of Texas 

Fort Worth 

Antonio Leija, Jr., 

Appellant 

v. 

State of Texas, 

Appellee 

On Appeal From No. 52,563-B in the 78th District Court of Wichita County, 

Texas, Hon. Judge Fudge Presiding

State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot 

To the Honorable Justices of this Court: 

The Wichita County Criminal District Attorney, Maureen Shelton, and 

her staff have the upmost respect for the Fort Worth Court of Appeals and 

its justices. The District Attorney and her staff also take their oath to 

uphold the Constitution and the law very seriously. 

Regrettably, a justice of this honorable court has leveled baseless 

accusations against the District Attorney and her staff in a published, 

     

   	 
      
   




       
         

  
    
      



	   	    	  	        

  
 



   

  
 
dissenting opinion alleging an observable pattern of violating the 

constitution and fundamental fairness.1

 A fair reading of the dissent reveals (1) the extremely serious nature 

of the accusations; (2) that the accusations are completely unfounded with 

no evidentiary support; (3) that the accusations were made with no way for 

the District Attorney to respond or rebut with evidence; (4) that in dealing 

with the Wichita County District Attorney as a party, the justice will not 

follow the binding precedent of the Court of Criminal Appeals, credibility 

determinations of the trial judge, or accurately represent the trial court 

record; and (5) that the justice applies a different set of rules when the 

WCDA is a party than she does in other cases.2

 Simply stated, this justice has so unequivocally expressed her 

antagonism toward the Wichita County District Attorney and her staff in the 

dissent and has demonstrated that it affects her ability to be fair and 

impartial to this office as a party. Thus, this justice has unfortunately left 

the Wichita County District Attorney with no choice but to seek her recusal 

to preserve our Due Process rights to a fair and impartial hearing body. 



1

 Ex parte Roberson, No. 02-13-00582-CR, 2015 WL 148476, at *5 (Tex. App.—

Fort Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J., dissenting). 

2

 Id. 


In light of the clearly articulated antagonism toward the Wichita 

County District Attorney and her staff, as expressed in Justice Dauphinot’s 

recent scathing dissenting opinion in Ex parte Byrias Roberson where 

Justice Dauphinot expresses deeply-held, personal, speculative opinions 

about the Wichita County District Attorney’s Office unrelated to the specific 

facts before this Court in Ex parte Byrias Roberson, and where Justice 

Dauphinot refuses to follow binding precedent and ignores the trial record,3

combined with her opinion in Johnson v. State being withdrawn on en banc 

reconsideration, and her dissenting opinion on rehearing in same, the State 

promptly files this motion and requests that Justice Dauphinot recuse 

herself from the above-styled cases, because her impartiality might 

reasonably be questioned, and because she has displayed and expressed 

a personal bias or prejudice concerning the Wichita County Criminal District 

Attorney’s Office (WCDA). 

Absent self-recusal, the State requests that members of the Fort 

Worth Court of Appeals decide this motion en banc, as required by the 

Texas Rules of Appellate Procedure. 



3

 Id. 


Applicable law 

Due process requires a neutral and detached hearing body or 

officer.4

 A party may file a motion to recuse a justice before whom the case 

is pending.5 The motion must be filed promptly after the party has reason 

to believe that the justice should not participate in deciding the case. 6 

When an appellate justice refuses to recuse herself, the remaining justices 

in the court must hear the motion en banc.7 The challenged justice may 

not sit with the remainder of the court to consider the motion against her.8

The grounds for recusal on appeal are the same as those provided in 

the Texas Rules of Civil Procedure.9 Specifically, a justice must recuse 

herself if (1) the justice’s impartiality might reasonably be questioned or (2) 

the justice has a personal bias or prejudice concerning the party.10

While courts enjoy a presumption of impartiality,11 this presumption is 

overcome if “a reasonable member of the public at large, knowing all the 



4

 Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Gagnon v. 

Scarpelli, 411 U.S. 778, 786 (1973); U.S. CONST. amend XIV. 

5

 Tex. R. App. P. 16.3(a). 

6

 Id. 

7

 Tex. R. App. P. 16.3(b). 

8

 Id. 

9

 Tex. R. App. P. 16.2. 

10 Tex. R. Civ. P. 18b(b)(1)-(2). 

11

 Brumit, 206 S.W.3d at 645. 


facts in the public domain concerning the judge and the case, would have a 

reasonable doubt that the judge is actually impartial.”12

“Bias or prejudice” is a disposition or opinion that is somehow 

wrongful or inappropriate, either because it is undeserved, resting upon 

knowledge that the subject ought not to possess, or because it is excessive 

in degree.13 Recusal is required for a justice with a bias showing a high 

degree of antagonism.14 When bias is alleged as the ground for recusal, 

the movant must provide sufficient evidence to establish that a reasonable 

person, knowing all the circumstances involved, would harbor doubts as to 

the impartiality of the judge.15

Standard of Review 

Recusal is required when the movant provides facts demonstrating 

the presence of bias or partiality “of such nature and extent as to deny the 



12

 Kirby v. Chapman, 917 S.W.2d 902, 908 (Tex. App.—Fort Worth 1996); Ex parte 

Ellis, 275 S.W.3d 109 (Tex. App.—Austin 2008, no pet.); Kniatt v. State, 239 S.W.3d 

910 (Tex. App.—Waco 2007, no pet); Burkett v. State, 196 S.W.3d 892, 896 (Tex. 

App.—Texarkana 2006, no pet.); Sears v. Olivarez, 28 S.W.3d 611, 615 (Tex. App.—

Corpus Christi 2000). See Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) (“Because I 

believe a reasonable member of the public at large, knowing all the facts in the public 

domain, would doubt that the justices ... are actually impartial I recuse myself from 

participation in all matters related to this cause.”). 

13

 Liteky v. U.S., 510 U.S. 540 (1994). 

14

 Roman v. State, 145 S.W.3d 316 (Tex. App.—Houston 2004, pet. ref’d). 

15

 Abdygapparova v. State, 243 S.W.3d 191 (Tex. App.—San Antonio, pet. ref’d), 

citing Kemp, 846 S.W.2d at 305. 


movant due process of law.”16 The Court should recuse a judge who 

displays an “attitude or state of mind so resistant to fair and dispassionate 

inquiry” as to cause a reasonable member of the public to question the 

objective nature of the judge’s rulings. 17 Evidence of a “deep-seated 

favoritism or antagonism that would make fair judgment impossible” 

necessitates recusal.18 The right to an impartial judge is so important that 

its violation constitutes a structural error that defies harm analysis.19

I. Justice Dauphinot has publicly expressed a high degree of 

antagonism toward the Wichita County Criminal District 

Attorney’s Office.

 Justice Dauphinot’s own words in her recent dissent in Ex parte 

Byrias Roberson20 and her actions in departing from the binding case law 

and the record of the case are the best evidence of the high degree of 

antagonism that she has formed toward the WCDA and its prosecutorial 

staff as a whole. 



16

 Id., citing Office of Pub. Util. Counsel v. Public Util. Comm’n, 185 S.W.3d 555, 

574 (Tex. App.—Austin 2006, pet. denied) and Roman, 145 S.W.3d at 321. 

17

 Liteky, 510 U.S. at 557-58 (Kennedy, J., concurring). 

18

 Liteky, 510 U.S. at 555. 

19

 Abdygapparova, 243 S.W.3d at 209, citing Arizona v. Fulminante, 499 U.S. 279, 

309 (1991); Chapman v. California, 386 U.S. 18, 23 & n. 8 (1967); and Turney v. Ohio, 

273 U.S. 510 (1927). 

20 No. 02-13-00582-CR, 2015 WL 148476 (Tex. App.—Fort Worth Jan. 8, 2015, no 

pet. h.) (Dauphinot, J., dissenting). 


1. Justice Dauphinot’s hostile and injudicious language shows her 

high degree of antagonism. 

 

 First, Justice Dauphinot’s seething dissent uses hostile and 

injudicious language to describe the WCDA. The language itself shows the 

significant antagonism that Justice Dauphinot possesses for the WCDA. 

 Justice Dauphinot begins by equating the Wichita County District 

Attorney with a popular emperor and declaring that she has no clothes on: 

“I believe appellate courts are obligated to admit that the emperor is 

wearing no clothes, no matter how popular the emperor might be.”21

 

The very selection of the “Emperor-has-no-clothes” bromide coupled 

with the additional reference of “no matter how popular the emperor might 

be” are improper for a dispassionate appellate justice simply judging the 

facts before her. Rather, they clearly express a high degree of animus by 

Justice Dauphinot toward the alleged, unclothed, yet popular emperor: the 

elected District Attorney of Wichita County. The fact that Justice Dauphinot 

elects to frame her entire dissent as telling a naked emperor a few things 

(i.e. about alleged discovery improprieties) reveals that this is about more 

than the facts of the misdemeanor case before the Court; rather it is about 

Justice Dauphinot’s general antagonism toward the elected District 



21

 Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
	

Attorney of Wichita County.22 Justice Dauphinot’s choice of that particular 

analogy shows an improperly demeaning and non-judicial tone by an 

appellate justice toward one of the parties of an appeal. 

2. Justice Dauphinot expresses general opinions that she has 

formed about the Wichita County District Attorney and her staff 

that she clearly carries from case-to-case. 

 

 Second, instead of limiting her dissent to the issues before the court 

in Roberson, Justice Dauphinot vividly expresses general opinions that she 

has formed against the WCDA in general. First, as she directs her dissent 

to the popular, yet unclothed emperor (i.e. the elected District Attorney), it 

is clear this opinion is about far more than the issues before the Court in Ex 

parte Roberson. Justice Dauphinot confirms this in the second paragraph 

when she states, “[a]ppellate judges are in a better position than trial 

judges to see patterns of conduct.”23 Justice Dauphinot then casts this 

case as part of an observed pattern: “appellate judges have an obligation to 

speak up when observed patterns show a course of conduct at odds with 

constitutional mandates and fundamental fairness.”24



22 The reference to “no matter how popular the emperor may be” makes it clear that 

this is directed to the District Attorney, the only elected member of the District Attorney’s 

Office, rather than the misdemeanor investigator or misdemeanor prosecutor. 

“Emperor” clearly refers to the one in charge—i.e. the elected District Attorney. 

23

 Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).

24

 Id. at *5-6. 



It is clear from Justice Dauphinot’s own words that she is looking 

beyond the record in this case to “observed patterns” and that these 

“observed patterns” have prompted her to “speak up” and tell the popular, 

yet unclothed emperor (the elected District Attorney) that her office is “at 

odds with constitutional mandates and fundamental fairness.”25

 

 Justice Dauphinot concludes her dissent by placing Ex parte 

Roberson within an observed pattern by citing Dabney v. State, Pitman v. 

State, and Juarez v. State. Justice Dauphinot could not be clearer: she 

would decide Ex parte Roberson not just on the record before the Court, 

but she would use an observed pattern as her rationale for deciding the 

case and impugning the motivations and integrity of the Wichita County 

District Attorney and her staff, including the misdemeanor prosecutor and 

investigator. Thus, Justice Dauphinot has admitted she has formed 

opinions about the WCDA that she carries from case-to-case that influence 

her judgment and that even outweigh the record before her in any particular 

case. 



25

 Id. 


3. Justice Dauphinot’s antagonism to the WCDA is demonstrated 

by her willingness to substitute her judgment for the trial judge’s 

on matters of credibility determination and by ignoring settled, 

binding case law. 

 

 Justice Dauphinot’s deep-seated and demonstrated antagonism 

toward the WCDA has significant consequences: it is so great that it 

justified her substituting her own judgment for the trial judge’s on issues of 

credibility determination and ignoring the settled, binding case law which 

the majority easily applied. 

 This Court is required to follow binding precedent of the Court of 

Criminal Appeals and credibility determinations of the trial judge.26

 Justice 

Dauphinot is a long-tenured and experienced jurist and knows that she is 

bound by precedent, by credibility determinations by the trial judge, and by 

the record in the case.27 Since Justice Dauphinot ignores the credibility 



26

 See Vance v. Hatten, 508 S.W.2d 625 (Tex. Crim. App. 1974) (“no other court of 

this state has the authority to overrule or circumvent [the Court of Criminal Appeals’] 

decisions or disobey its mandates” and to question this “would render the entire 

appellate process nothing more than an exercise in futility.”); Francis v. State, 428 

S.W.3d 850, 855 (Tex. Crim. App. 2014) (“An appellate court must pay almost absolute 

deference to the trial court’s findings of fact based on determinations of credibility or 

demeanor...”). 

27

 See, e.g. State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010), 

aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) (Dauphinot, J., dissenting) (“We cannot 

and must not substitute our determination of the facts and the credibility of the 

witnesses in order to achieve the result we believe the trial court should have 

reached.”); State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no 

pet.) (Justice Dauphinot states, “Because a decision of the court of criminal appeals is 

binding precedent, we are compelled to comply with its dictates.”); Jordy v. State, 969 

S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.) (Justice Dauphinot explains 

“When the findings are based on an evaluation of a witnesses’ credibility and demeanor, 


determinations of the trial judge, substitutes her own credibility estimation 

for the trial judge’s, and ignores settled precedent and the record in cases 

involving the WCDA, she must be harboring a deep-seated antagonism 

toward the WCDA. Any one of these would be a serious departure from 

judicial norms; taken together they show her undeniable animus and its 

influence.

a) Justice Dauphinot would substitute her credibility judgment for 

the trial judge based upon the “observed patterns” 

she references. 

 Even though it is well-established that a trial judge’s determinations of 

matters of credibility entitled to almost total deference from an appellate 

court, Justice Dauphinot would ignore this precedent because she insists 

she is in a better position than the trial judge to discern the motivations of 

the DA investigator and the WCDA.28 Justice Dauphinot unambiguously 

states, “[u]nlike trial judges, who primarily see only the conduct in the 

courtrooms over which they preside, appellate courts are presented with 

records from other courts in that county...Appellate judges are in a better 



the appellate court should afford almost total deference to the trial court’s fact 

findings.”). 

28

 Guzman v. State, 995 S.W.2d at 87; Jordy v. State, 969 S.W.2d 528, 532 (Tex. 

App.—Fort Worth 1998, no pet.) ( “When the findings are based on an evaluation of a 

witnesses’ credibility and demeanor, the appellate court should afford almost total 

deference to the trial court’s fact findings.”). 


position than the trial judge to see patterns of conduct.”29 Thus, Justice 

Dauphinot begins her dissent by stating why she believes she is in a better 

position than the trial judge to know what was really going on in the County 

Court at Law #1 of Wichita County. 

 Justice Dauphinot cites the trial judge’s credibility determination 

relating to Investigator Cavinder’s conduct: “And I’m not casting fault on 

Investigator Cavinder at all. I understand that was an honest mistake. I 

completely believe that he believed he was speaking to Ms. Steele.”30

 

Then, Justice Dauphinot promptly ignores this credibility determination of 

the trial judge and instead substitutes her own judgment: “The record casts 

doubt on Cavinder’s testimony concerning his own knowledge.”31 Despite 

the trial judge stating on the record that he was not casting fault on 

Investigator Cavinder, that it was an “honest mistake” and that he 

completely believed Cavinder, Justice Dauphinot instead implicitly calls 

Cavinder a liar and relates that she does not believe him.32

 Justice Dauphinot, based upon her antagonism toward the WCDA 

and the “observed patterns” of abuse that she claims to have discerned, 

has subsumed a power not granted to her by the Rules of Appellate 



29

 Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting). 

30

 Id. at *7. 

31

 Id. at *7. 

32

 Id. at *8. 


Procedure, the Court of Criminal Appeals or the law of the State of Texas: 

the power to re-determine issues of credibility. 33 This is irrefutable 

evidence of the high antagonism that Justice Dauphinot expresses toward 

the WCDA. 

b) Justice Dauphinot’s antagonism toward the WCDA is also 

evidenced by her refusal to apply the binding precedent. 

 

 While Justice Dauphinot recites that the Court of Criminal Appeals 

requires proof that the prosecution intended to cause a mistrial for jeopardy 

to bar a second prosecution, Justice Dauphinot ignores that standard in 

favor of her own standard: “At some point, appellate courts must hold that 

the conduct is so egregious that the party cannot avoid its 

consequences.”34 Instead of applying the Court of Criminal Appeals factors 

in Ex parte Wheeler (as the majority opinion does), Justice Dauphinot 

ignores the Wheeler factors and seeks to apply her own standard 

formulated ad hoc, unmoored from the precedent of the Court of Criminal 

Appeals. 35 This is not a situation where Justice Dauphinot simply 

disagrees with the majority about the particular Wheeler factors or how 

much weight to give them; rather, Justice Dauphinot would reverse the 



33

 See Francis, 428 S.W.3d at 855; Guzman, 995 S.W.2d at 87. 

34

 Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).

35

 Roberson, 2015 WL 148476 at *10-11 (Dauphinot, J., dissenting). 


case without reference to the binding precedent.36 The only explanation for 

Justice Dauphinot failing to engage and apply binding precedent cited in 

the majority opinion is that she is solely motivated by her antagonism 

toward the WCDA. 

c) Justice Dauphinot’s antagonism is further displayed by the 

unwarranted speculation and assumptions that she makes in Ex 

parte Roberson. 

In addition to ignoring the credibility determination of the trial judge 

and failing to apply binding precedent, Justice Dauphinot’s dissent also 

contains unsupported speculations and assumptions which clearly flow 

from her antagonism toward the WCDA.37

 In rejecting Investigator Cavinder’s sworn testimony, impugning him 

as a liar, and rejecting the trial judge’s determination that Investigator 

Cavinder testified honestly, Justice Dauphinot seeks a motivation for 

Investigator Cavinder’s actions other than an “honest mistake.”38 Thus, 

Justice Dapuhinot advances a theory that Investigator Cavinder’s actions 

were part of the prosecutor’s strategy to obtain more time to give discovery 

notice. 39 Justice Dauphinot’s theory was that the prosecutor and the 



36

 Id. 

37

 Id. at *6-10. 

38

 Id. at *7-8. 

39

 Id. at *10-11. 


investigator colluded to obtain a mistrial so that the prosecutor could have 

more time to give extraneous notice concerning the previous encounter.40

 

 First, there is no evidence in the record from either Investigator 

Cavinder, nor the prosecutor, nor any other witness to support this theory 

as the reason for Investigator Cavinder’s actions.41

Secondly, there had been no ruling by the trial court excluding 

anything; rather, the trial judge had just granted a motion-in-limine.42 It is 

well-established law that a motion-in-limine preserves nothing for review 

and just requires the parties to approach.43

Third, the prosecutor actually stated on the record that she had no 

intent to mention the previous entry except if the defense questioned 

whether the officers were familiar with the defendant.44

 Fourth, Justice Dauphinot claims the prosecutor engaged in a 

“conscious decision” to withhold mandated discovery as a trial tactic.45 

There is simply no support that the prosecutor engaged in any trial tactic, 

that the prosecutor made a “conscious decision,” or that the information 



40

 Id. at *10-11. 

41 State’s Exhibit I, III R.R. at 156-158 (testimony of Donnie Cavinder) & IV R.R. at 

5-7 (testimony of Juror Vale).

42 Attachment A, III R.R. at 5.

43

 Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972). 

44 Attachment A, III R.R. at 5-6. 

45

 Roberson, 2015 WL 148476 at *9 (Dauphinot, J., dissenting).


even needed to be disclosed.46 Additionally, no offer of proof or evidentiary 

ruling was made 47 thus, Justice Dauphinot elevated speculation to 

established fact without regard to the trial record.

48

 

 Fifth, while Justice Dauphinot speculates that the prosecutor plotted 

with the investigator to cause a mistrial so the prosecutor could have more 

time to offer extraneous notice in a new case, the trial judge had indicated 

that he was inclined to let the officers say they were familiar with the 

defendant (which is what the prosecutor wanted).49 So, while the court 

made no ruling more than a motion in limine, the court indicated that the 

prosecutor would be able to ask the officers whether they were familiar with 

the defendant from the past.50 Thus, Justice Dauphinot’s speculation as to 

a plot to obtain a mistrial is completely misguided. Justice Dauphinot’s 

animus to the WCDA is so great that she sees motives for improper 

conduct which are not born-out by the record. 

 Sixth, while Justice Dauphinot states “[t]he prosecution did not 

provide mandated discovery to the defense,” this proposition is also 



46

 See Attachment A, IV R.R. at 9 (“I understand that was an honest mistake. I 

completely believe that [Cavinder] believed he was speaking to Ms. Steele.”). See also 

Attachment A, III R.R. at 4-14 (hearing on motions in limine). See also generally 

Attachment A, I R.R. (showing no hearing requesting compelled discovery). 

47

 See Attachment A, III R.R. (motion in limine and trial on the merits). 

48

 Roberson, 2015 WL148476 at *11 (Dauphinot, J., dissenting). 

49 Attachment A, III R.R. at 6.

50

 Id. 


speculation without any evidentiary support. 51 While there was some 

discussion on the record of what the prosecutor would ask “if defense 

counsel intends to challenge the legality of that entry,”52 there was never an 

offer of proof in the record or a ruling by the trial judge.53 A motion in limine 

is not a ruling on admissibility.54 Yet, Justice Dauphinot states “[t]he trial 

judge ruled that the notice of extraneous acts of misconduct that the State 

intended to offer into evidence was untimely and that the evidence, 

presumably, were inadmissible.”55 When he granted the limine, the trial 

judge stated that: “Without hearing [the witnesses], I’d be inclined to say 

they might have had previous contact or something like that that’s how they 

recognized. But to go any further might be a problem. But we’ll discuss 

that. So I’ll go ahead and grant that limine on that ground. Make sure you 

come up before you start with them.”56

 

 Thus, Justice Dauphinot conflates a ruling on a motion in limine with 

an evidentiary ruling at trial when she wrongly stated that the trial judge had 

“ruled that the notice of extraneous acts of misconduct that the State 



51

 Roberson, 2015 WL 1484765 at *11 (Dauphinot, J., dissenting). 

52 Attachment A, III R.R. at 5. 

53

 See Attachment A, III R.R. (motion in limine and trial on the merits).

54

 Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972). 

55

 Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).

56

 See Attachment A, III R.R. at 6 (transcript excerpts in Roberson). 
	

intended to offer into evidence was untimely and that the evidence, 

presumably, was inadmissible.”57 The trial judge made no such ruling.58

 

 Justice Dauphinot, herself, has previously stated that “The granting of 

a motion in limine is not a ruling on the admissibility of the evidence and 

does not preserve error. A motion in limine simply prohibits references to 

specific issues without first obtaining a ruling on the admissibility of those 

issues outside the presence of the jury.” 59 Justice Dauphinot clearly 

understands the difference between a ruling on a motion in limine and an 

evidentiary ruling.60 That Justice Dauphinot would misrepresent a ruling on 

a motion in limine as an evidentiary ruling can only be motivated by her 

high antagonism to the WCDA and demonstrates that the she applies a 

different set of rules when the WCDA is a party than she does in other 

cases.61



57

 Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).

58

 See Attachment A, III R.R. at 4-14 (hearing on motions in limine).

59

 BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth 

2014, no pet. history). 

60

 Id. 

61

 Compare BNSF Railway Co., 434 S.W.3d at 699 (Justice Dauphinot states: “The

granting of a motion in limine is not a ruling on the admissibility of the evidence and 

does not preserve error. A motion in limine simply prohibits references to specific issues 

without first obtaining a ruling on the admissibility of those issues outside the presence 

of the jury.”) with Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (“The trial 

judge ruled that the notice of extraneous acts of misconduct that the State intended to 

offer into evidence was untimely and that the evidence, presumably, was 

inadmissible.”). It is clear when the party is not the WCDA, Justice Dauphinot 

understands a ruling on a motion in limine is not an evidentiary ruling.



II. The Wichita County District Attorney denies in the strongest 

terms possible Justice Dauphinot’s outrageous suggestion 

that her office engages in a pattern of misconduct that 

violates the constitution and fundamental fairness. 

Further, Justice Dauphinot violated judicial principles by 

making such a sweeping pronouncement on extremely limited 

information when it was not a case or controversy before the 

court and the parties had no opportunity to provide testimony 

or evidence on Justice Dauphinot’s alleged pattern to a trial 

court. 

 First, the Wichita County District Attorney denies in the strongest 

terms possible Justice Dauphinot’s outrageous suggestion that her office 

engages in a pattern of misconduct that violates the constitution and 

fundamental fairness. The Wichita County District Attorney takes her oath 

to enforce the Constitution and the laws of the State of Texas extremely 

seriously. 

 Second, Justice Dauphinot’s assertion is all the more indefensible 

because (1) the Wichita County District Attorney’s Office never received an 

opportunity before a trial court as a fact-finder to offer facts or evidence to 

show the utter fallaciousness of this assertion since it was not an issue 

before the trial court and Justice Dauphinot is expressing opinion on facts 

not in the record in the Roberson case; (2) Justice Dauphinot cites three 

cases for her alleged pattern out of thousands of cases handled by the 


WCDA; and (3) the three cases that she cites offer no support for her 

conclusion. 

1. The WCDA never had an opportunity to offer evidence or 

testimony about the alleged pattern because it was not an 

issue before the trial court. 

 

While Justice Dauphinot cites “observed patterns” that “show a 

course of conduct at odds with constitutional mandates and fundamental 

fairness” as the basis for her dissent, this supposed pattern was not a 

controversy in issue before the trial judge. 62 There was no allegation 

before the trial judge of any such pattern.63 Rather, the only issues before 

the trial court were (1) what had happened; and (2) why did it happen.64 

The trial court never asked for, heard, or received any evidence about any 

pattern of misconduct by the WCDA.65 Therefore, the WCDA has never 

been afforded any opportunity to offer testimony or evidence rebutting any 

such pattern. Appellate courts are not evidentiary courts. 66 When an 

appellate court needs additional evidence to decide a point, the appropriate 



62

 See Attachment A, IV-V R.R. (motion for mistrial and hearing on habeas 

application). 

63

 Id.

64

 Id.

65

 Id.

66

 See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas 

2013, no pet. history) (explaining that appellate courts do not take testimony or receive 

evidence). 


remedy is to abate the appeal and refer the case for an evidentiary hearing 

in a trial court.67

 Since an alleged pattern was not an issue before the trial court and 

the appellate court did not abate the appeal and remand for such a 

determination, the WCDA never had the opportunity to offer any evidence 

to refute the erroneous claim. To state such a serious conclusion as fact in 

the dissent of a published opinion when there has been no evidentiary 

hearing before a trial court on the issue is completely contrary to the tenets 

of judicial fairness, the Texas Rules of Appellate Procedure, and the 

proscription against issuing advisory opinions.68 This further demonstrates 

Justice Dauphinot’s antagonism to the WCDA: she makes a sweeping 

advisory pronouncement without the WCDA having an opportunity to rebut 

that pronouncement. 

2. Justice Dauphinot cites three opinions out of thousands of 

cases handled by the WCDA. 

 For the supposed pattern that she has observed, Justice Dauphinot 

cites three cases handled by the WCDA. These cases that she cites span 



67 Tex. R. App. P. 44.4. 

68 Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised 

and necessary to final disposition of the appeal); see also Garrett v. State, 749 S.W.2d 

784, 803 (Tex. Crim. App. 1988) (explaining that “judicial power does not include the 

power to issue advisory opinions” which result “when a court attempts to decide an 

issue that does not arise from an actual controversy capable of a final adjudication.”) 

overruled on other grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). 
a period of over five years.69 During those five years, the WCDA has 

handled thousands of criminal cases, multiple scores of which have gone 

before this honorable Court of Appeals. The lack of an evidentiary hearing 

on such an important issue is further highlighted when Justice Dauphinot 

attempts to discern a pattern of misconduct out of three cases in six years 

out of thousands of cases handled. Even if the three cases she cited 

supported her proposition (which they do not), three cases in five years is 

no substitute for an evidentiary hearing on such an important question. 

3. The three cases that Justice Dauphinot cites do not support 

the pattern she alleges. 

 The cases cited by Justice Dauphinot fail to establish any pattern. 

First, Justice Dauphinot cites Dabney v. State,

70 an unpublished 

memorandum opinion that was released on October 16, 2014. The State 

currently has a pending application for discretionary review before the 

Court of Criminal Appeals on Dabney.71 While Justice Dauphinot, who 

authored the Dabney opinion, disputed the trial court’s decision, the trial 



69

 Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting). 

70 No. 02-12-00530-CR, 2014 WL 5307178, at *7–9 (Tex. App.—Fort Worth Oct. 

16, 2014, pet. filed) (mem. op., not designated for publication). 

71

 See THE STATE’S PETITION FOR DISCRETIONARY REVIEW, Dabney v. State, No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at 

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a4018-8b70-6fbb32cd8db1.


judge had admitted the evidence as rebuttal evidence.72 Judge Robert 

Brotherton, an experienced trial judge who presided over the case, did not 

believe that the WCDA had engaged in any discovery violation as 

evidenced by his decision to admit the evidence.73 Additionally, Justice 

Walker dissented in Dabney and would have affirmed the admission of the 

evidence as rebuttal evidence.74 So, Justice Dauphinot cites to Dabney, an 

opinion that she authored, for part of her allegation that the WCDA 

engages in discovery abuses, even though Judge Brotherton in Dabney

found no such discovery abuse and Justice Walker discerned no such 

abuse. Furthermore, the State questions the fairness of using an opinion 

where the asserted issue is the subject of a pending petition for 

discretionary review.75

 Second, Justice Dauphinot cites Pitman v. State.

76 In Pitman, this 

Court affirmed the judgment and sentence finding that the appellant had 

failed to satisfy the second and third Brady prongs.77 The portion of the 

opinion that Justice Dauphinot is apparently citing to – dealing with the 



72 Attachment B, VI R.R. at 21, 33.

73

 Id.

74

 Dabney, 2014 WL 5307178 at *10-11 (Walker, J., dissenting).

75

 See THE STATE’S PETITION FOR DISCRETIONARY REVIEW, Dabney v. State, No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at 

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a4018-8b70-6fbb32cd8db1

76

 Pittman v. State, 372 S.W.3d 261, 270 (Tex. App.—Fort Worth 2012, pet ref’d). 

77

 Id. 


WCDA’s policy concerning CPS records – was “not necessary to the 

disposition of this appeal” and, therefore, mere dicta.78 Furthermore, the 

position taken by the WCDA – that the CPS records should be subpoenaed 

and presented to the trial court for in camera review because of the 

confidentiality of CPS records – is now supported by 39.14(a) of the Code 

of Criminal Procedure excluding records deemed confidential under 

Section 264.408 of the Family Code. 79 This statutory confidentiality 

recognizes the unique attorney-client relationship the Civil Division of the 

District Attorney’s Office has with the Department of Family and Protective 

Services and how inappropriate imputing all such attorney-client knowledge 

to the criminal prosecutor in a prosecution of an opposing party in a child 

protective services case would be. Therefore, not only is the portion of 

Pitman that Justice Dauphinot cites dicta (which in itself would be 

inappropriate to use as evidence of a pattern), but the issue of 

attorney/client privilege between CPS and WCDA in Pitman is now 



78 Id. at 270. 

79 Tex. Code Crim. Proc. art. 39.14 (West Suppl. 2014) (“Subject to the restrictions 

provided by Section 264.408 Family Code...”) & Tex. Fam. Code Ann. § 264.408 (West 

2014) (“[CPS documents] may only be disclosed for purposes consistent with this 

chapter.”; the only exceptions to this confidentiality for a prosecuting attorney are “as 

needed to provide services under this chapter” or for a “video recording of an interview 

of a child”) (emphasis added) 


supported by statute due to the amendment of 39.14(a) of the Code of 

Criminal Procedure.80

 Third, Justice Dauphinot cites Juarez v. State,

81 another unpublished, 

memorandum opinion. The Juarez case was handled under the previous 

District Attorney, Barry Macha.82 While on appeal the appellant claimed 

lack of notice of an extraneous offense, this Court overruled the point of 

error for lack of preservation.83 So, in citing Juarez, Justice Dauphinot was 

citing to an appellant’s point of error that was neither preserved nor ruled 

upon as part of her “observable pattern” of discovery abuses.84 Incredibly, 

the fact that the merits of the case were not ruled upon by this Court does 

not deter Justice Dauphinot from seeing her pattern of abuse from a mere 

appellant point that was never reached.85

 For her alleged pattern, Justice Dauphinot has cited two cases where 

the Court did not find a discovery violation.86 The third case she cites – 

Dabney – currently has a petition for discretionary review pending before 



80

 Id. 

81 No. 02-08-00167-CR, 2009 WL 1564926, at *1 & n.2 (Tex. App.—Fort Worth 

June 4, 2009, no pet.) (mem. op., not designated for publication). 

82

 Id. 

83

 Id. 

84

 Id. 

85

 Id. 

86

 Pitman, 372 S.W.3d at 268-70 & Juarez v. State, No. 02-08-00167-CR, 2009 WL 

1564926, at *1 & n.2 (Tex. App.—Fort Worth June 4, 2009, no pet.) (mem. op., not 

designated for publication)


the Court of Criminal Appeals.87 Also, one of these three cases was under 

a previous District Attorney.88 No fair observer would discern any pattern 

from these three cases. That Justice Dauphinot sees a pattern in them 

reveals that she has such a high degree of antagonism toward the WCDA 

that she will see a pattern where none exists. This lack of pattern, alone, 

would be enough to demonstrate Justice Dauphinot’s inability to be 

impartial in judging cases involving the WCDA. 

III. The close proximity in time between the WCDA prevailing on 

its motion for en banc reconsideration on the Joe Johnson

appeal and this dissent suggests the basis for Justice 

Dauphinot’s antagonism toward the WCDA. 

 

 The WCDA’s successful motion for en banc reconsideration in 

Johnson v. State in October 2014 in which this Court withdrew Justice 

Dauphinot’s memorandum opinion would appear, to an impartial observer, 

as a motivation for Justice Dauphinot’s antagonism toward the WCDA. 

 The memorandum opinion authored by Justice Dauphinot in Johnson 

v. State made many factual assertions that were not supported by the 

record.89 The memorandum opinion’s reasoning was premised upon a 



87

 See THE STATE’S PETITION FOR DISCRETIONARY REVIEW, Dabney v. State, No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at 

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a4018-8b70-6fbb32cd8db1

88

 Juarez, 2009 WL 1564926 at *1.

89

 Johnson v. State, No. 02-11-00253-CR, 2013 WL 531079 (Tex. App.—Fort 

Worth Feb. 14, 2013) (mem. op, not designated for publication) (Johnson I), opinion 


false open-door theory not supported in the record.90 Because the reversal 

would have caused a child rape victim to re-testify, the WCDA had no 

choice but to file a motion for en banc reconsideration which detailed the 

many factual errors that served as the premise of the false open-door 

theory.91

 On October 9, 2014, a majority of this Court agreed, thereby 

withdrawing Justice Dauphinot’s opinion, and affirming the conviction. 92 

Justice Dauphinot dissented from the majority decision.93

 The State believes that to an impartial observer, it would appear to be 

more than a coincidence that following a majority of this Court rectifying the 

false open-door premise that formed the basis of her open-door theory in 

Johnson v. State, Justice Dauphinot has since developed and expressed 

such animus toward the WCDA where she is willing to ignore the trial 

judge’s credibility determination, ignore binding precedent, and discern a 

pattern of misconduct where none exists.94

 



withdrawn and superseded by Johnson v. State, No. 02-11-00253-CR, 2014 WL 

5583345, at *1 (Tex. App.—Fort Worth Oct. 9, 2014) (en banc) (Johnson II); MOTION 

FOR EN BANC RECONSIDERATION, Johnson v. State, No. 02-11-00253-CR (Tex. App.—Fort 

Worth Feb. 22, 2013). 

90

 Johnson I, 2013 WL 531079, at *1. 

91

 Johnson II, 2014 WL 5583345, at *1. 

92

 Id. 

93

 Id. at *5. 

94

 Compare Johnson II, 2014 WL 5583345, released Oct. 9, 2014 

with Roberson, 2015 WL 148476 (Dauphinot, J., dissenting), released Jan. 8, 2015. 
	

 Any party to an appeal has a right under T.R.A.P. 49.7 to file for a 

motion for en banc rehearing when the party believes the opinion is 

founded on false premises and is contrary to the trial record in the case. A 

party should be able to exercise that right without fear of reprisal by the 

author of the opinion. The State believes that an impartial observer, 

reading Justice Dauphinot’s dissent in Roberson and the high level of 

antagonism that it expresses toward the WCDA just a few months after the 

WCDA prevailing on its motion for en banc reconsideration in Johnson, 

would question Justice Dauphinot’s ability to be a fair and impartial judge. 

Conclusion 

 The State has shown that Justice Dauphinot has a high degree of 

antagonism toward the WCDA that she carries with her from case-to-case. 

The State has shown that “a reasonable member of the public at large, 

knowing all the facts in the public domain concerning the judge and the 

case, would have a reasonable doubt that [Justice Dauphinot] is actually 

impartial” and that “a reasonable person, knowing all the circumstances 

involved, would harbor doubts as to the impartiality of [Justice Dauphinot].” 

The deep-seated antagonism that Justice Dauphinot holds affects her 

ability to dispassionately apply the settled law from the Court of Criminal 




Appeals, her ability to defer to credibility determinations of the trial judge, 

and her ability to distinguish between a ruling on a motion in limine and an 

evidentiary ruling. In previous opinions she authored, Justice Dauphinot 

has cited and applied the proper law in these areas; yet, when the WCDA 

is a party, she now applies a different set of rules.95

 

 Justice Dauphinot has expressed an attitude so resistant to fair and 

dispassionate inquiry as to cause a reasonable member of the public to 

question the objective nature of her rulings in cases involving the WCDA. 

Since the State has a due process right to have a neutral and detached 

hearing body or officer, and since that due process right would be violated 

by Justice Dauphinot sitting on these panels, recusal is proper. 

Prayer 

 The State prays Justice Dauphinot recuse herself from the three 

above-captioned cases. Absent a self-recusal, the State prays that this en 

banc Court enter a finding that Justice Dauphinot should be recused. 



95

 Compare BNSF Railway Co., 434 S.W.3d at 699 (“The granting of a motion in 

limine is not a ruling on the admissibility of evidence and does not preserve error.”);

Stevenson, 993 S.W.2d at 867 (“Because a decision of the court of criminal appeals is 

binding precedent, we are compelled to comply with its dictates.”); Jordy, 969 S.W.2d 

at 531 (“the appellate court should afford almost total deference to the trial court’s fact 

findings); with Roberson, 2015 WL 148476 at (Dauphinot, J., dissenting) (where she 

claims a ruling on a limine is an evidentiary ruling, she fails to engage and apply the 

Court of Criminal Appeals precedent to the issue at hand, and she fails to defer to the 

trial judge’s credibility determination of Investigator Cavinder). 


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 

Certificate of Compliance 

 I certify that this document contains 6,629 words, counting all parts of 

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The 

body text is in 14 point font, and the footnote text is in 12 point font. 

/s/Maureen Shelton 

Maureen Shelton 

 


Certificate of Service

 I do certify that on January 21, 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. 

/s/Maureen Shelton 

Maureen Shelton 

Certificate of Conference 

A conference was held on January 20, 2015 by telephone with 

Michael F. Payne (attorney for Antonio Leija, Jr.) on the merits of this 

motion, and he was not able to confer whether or not he was opposed 

without speaking with his client first. He has not yet responded. 

/s/Maureen Shelton 

Maureen Shelton 
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00319-CR

MICHAEL OLIVER SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

TRIAL COURT NO. 52,047-B

------------

NO. 02-13-00473-CR

ANTONIO LEIJA, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

TRIAL COURT NO. 52,563-B

------------

FILE COPY
NO. 02-13-00482-CR

KURLEY JAMES JOHNSON APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

TRIAL COURT NO. 53,445-C

------------

ORDER

------------

Currently pending before this court in each of the above referenced causes

is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed

January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each

cause under Texas Rule of Appellate Procedure 16.

Rule 16 states that the grounds for recusal are the “same as those

provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R.

Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the

grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d

87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides

that a judge must recuse himself or herself in a proceeding in which the judge’s

2

FILE COPY
impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The

State’s motions challenge the impartiality of Justice Dauphinot under this rule. 

Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the

procedure to be followed for recusal of an appellate justice or judge:

Before any further proceeding in the case, the challenged justice or

judge must either remove himself or herself from all participation in

the case or certify the matter to the entire court, which will decide the

motion by a majority of the remaining judges sitting en banc. The

challenged justice or judge must not sit with the remainder of the

court to consider the motion as to him or her.

Tex. R. App. P. 16.3(b). 

Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the

recusal motions and prior to any further proceedings in these appeals, Justice

Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no

reason to recuse herself and certified the matter in writing to the remaining

members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This

court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App.

P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50

S.W.3d at 88. A majority of the remaining justices of the court could not agree on

a decision, so that fact was certified to the Chief Justice of the Supreme Court.

The Chief Justice temporarily assigned former Justice Rebecca Simmons as a

visiting justice to sit with the court of appeals to consider the motions. See Tex.

R. App. P. 41.2(b). 

3

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The visiting justice then met with the six remaining justices to deliberate

and decide the motions to recuse Justice Dauphinot by a vote of a majority of the

justices. Justice Dauphinot did not sit with the other members of the court when

her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50

S.W.3d at 88. The determination of whether recusal was necessary was made

on a case-specific, fact-intensive basis. See McCullough, 50 S.W.3d at 89;

Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no

pet.) (order).

The en banc court, Justice Dauphinot not participating, has carefully

examined the motions and the records as to the allegations pertaining to Justice

Dauphinot. The majority of the remaining justices have concluded that the

motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b). 

Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above

referenced causes is denied.

DATED February 26, 2015.

PER CURIAM

EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment).

DAUPHINOT, J., not participating.

LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.

4

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1 

No. 02-13-00473-CR 

Court of Appeals 

Second District of Texas 

Fort Worth 

Antonio Leija, Jr., 

Appellant 

v. 

State of Texas, 

Appellee 

On Appeal From No. 52,563-B in the 78th District Court of Wichita County, 

Texas, Hon. Judge Fudge Presiding

State’s Unopposed Motion to Stay Proceedings 

To the Honorable Justices of this Court: 

 This court has recently issued an order denying State’s Motion to 

Recuse the Hon. Justice Dauphinot. The State will promptly file a Petition 

for Discretionary Review to review this order, as permitted by the Texas 

Rules of Appellate Procedure 16.3(c) and 68.1. While the State has 30 

days to file this petition,1

 it plans to file it next week. 

 

1

 Tex. R. App. P. 68.2(a). 

ACCEPTED

02-13-00473-CR

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

2/27/2015 10:24:40 AM

DEBRA SPISAK

CLERK
2 

 The State prays that this court stay further proceedings in this case 

and not render an opinion until the Court of Criminal Appeals has acted on 

the State’s Petition for Discretionary Review. This motion is made in good 

faith, as three out of seven justices sitting en banc would have granted 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 

 
3 

Certificate of Compliance 

 I certify that this document contains 119 words, counting all parts of 

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The 

body text is in 14 point font, and the footnote text is in 12 point font. 

/s/Maureen Shelton 

Maureen Shelton 

Certificate of Service

 I do certify that on February 27, 2015, a true and correct copy of the 

above document has been served electronically to Michael Payne (attorney 

for Antonio Leija) at michaelfpayne@gmail.com. 

/s/Maureen Shelton 

Maureen Shelton 

Certificate of Conference 

I certify that this motion was discussed with Michael Payne (attorney 

for Antonio Leija) in person on February 27, 2015, and that he is 

unopposed to this motion. 

/s/Maureen Shelton 

Maureen Shelton