### 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 CLERK2



### The State filed a motion to stay appellate proceed ings in this case the day immediately following the Second Court of Appea ls’ 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 sta y 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 o n the motion to stay. Texas Rule of Appellate Procedure 16.3(c) expressl y provides that

“the denial of a recusal motion is reviewable.” Th erefore, 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 con tested cases. If Justice Dauphinot has, in fact, demonstrated a disqualifyin g predisposition against the Wichita County District Attorney’s Office that compromises her appearance of being impartial, as three of colleagu es have so determined as expressed by their public votes to recuse her, t hen 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 Thu rsdays. The State is seeking emergency relief since the Fort Wo rth 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 immedi ately 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 fax4 

### Certificate of Compliance I certify that this document contains 326 words, c ounting 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 tex t is in 12 point font.

/s/Maureen Shelton Maureen Shelton

Certificate of Service I do certify that on March 4, 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/Maureen Shelton Maureen Shelton

Certificate of Conference I certify that staying proceedings was discussed wi th Michael Payne (attorney for Antonio Leija) in person on February 27, 2015, and that he is unopposed to staying proceedings at the Court of Ap peals.

/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 Co urt of Wichita County,

Texas, Hon. Judge Fudge Presiding

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

To the Honorable Justices of this Court: The Wichita County Criminal District Attorney, Maur een Shelton, and her staff have the upmost respect for the Fort Wort h 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 s taff in a published, 



      

   











 



 





   



 



 

     



 



 





  



    



### dissenting opinion alleging an observable pattern o f violating the

constitution and fundamental fairness. 1 

### A fair reading of the dissent reveals (1) the extr emely serious nature of the accusations; (2) that the accusations are co mpletely unfounded with no evidentiary support; (3) that the accusations we re made with no way for the District Attorney to respond or rebut with evid ence; (4) that in dealing with the Wichita County District Attorney as a part y, the justice will not follow the binding precedent of the Court of Crimin al Appeals, credibility determinations of the trial judge, or accurately re present the trial court record; and (5) that the justice applies a differen t set of rules when the WCDA is a party than she does in other cases. 2 

### Simply stated, this justice has so unequivocally e xpressed her antagonism toward the Wichita County District Attor ney and her staff in the

dissent and has demonstrated that it affects her ab ility to be fair and impartial to this office as a party. Thus, this ju stice 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 im partial hearing body.1 Ex parte Roberson, No. 02-13-00582-CR, 2015 WL 148476, at *5 (Tex. Ap p.— Fort Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J. , dissenting). 2 Id

.

### In light of the clearly articulated antagonism towa rd the Wichita County District Attorney and her staff, as expresse d 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 i gnores 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 Justic e Dauphinot recuse herself from the above-styled cases, because her im partiality might reasonably be questioned, and because she has displ ayed and expressed a personal bias or prejudice concerning the Wichita County Criminal District Attorney’s Office (WCDA). Absent self-recusal, the State requests that member s 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 bef ore 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 t hose provided in

the Texas Rules of Civil Procedure. 9 

### Specifically, a justice must recuse herself if (1) the justice’s impartiality might rea sonably be questioned or (2) the justice has a personal bias or prejudice concer ning the party. 10 

### While courts enjoy a presumption of impartiality, 11 

### this presumption is overcome if “a reasonable member of the public at l arge, knowing all the4 Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Gagnon v. Scarpelli , 411 U.S. 778, 786 (1973); U.S. C ONST . 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 imparti al.” 12 

### “Bias or prejudice” is a disposition or opinion tha t is somehow wrongful or inappropriate, either because it is und eserved, 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 sho wing a high degree of antagonism. 14 

### When bias is alleged as the ground for recusal, the movant must provide sufficient evidence to esta blish that a reasonable person, knowing all the circumstances involved, wou ld 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 the12 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 actuall y 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 pub lic to question the objective nature of the judge’s rulings. 17 

### Evidence of a “deep-seated favoritism or antagonism that would make fair judgm ent impossible”

necessitates recusal. 18 

### The right to an impartial judge is so important t hat

its violation constitutes a structural error that d efies harm analysis. 19 

### I. Justice Dauphinot has publicly expressed a high degree of antagonism toward the Wichita County Criminal Distr ict Attorney’s Office. Justice Dauphinot’s own words in her recent dissen t in Ex parte Byrias Roberson 20 

### 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.—For t Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J., dissenting).

### 1. Justice Dauphinot’s hostile and injudicious lang uage shows her high degree of antagonism. First, Justice Dauphinot’s seething dissent uses h ostile and injudicious language to describe the WCDA. The lan guage itself shows the significant antagonism that Justice Dauphinot posse sses for the WCDA. Justice Dauphinot begins by equating the Wichita C ounty 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 emper or might be.” 21 

### The very selection of the “Emperor-has-no-clothes” bromide coupled with the additional reference of “no matter how pop ular the emperor might be” are improper for a dispassionate appellate just ice simply judging the facts before her. Rather, they clearly express a h igh degree of animus by Justice Dauphinot toward the alleged, unclothed, ye t popular emperor: the elected District Attorney of Wichita County. The f act that Justice Dauphinot elects to frame her entire dissent as telling a nak ed emperor a few things (i.e. about alleged discovery improprieties) reveal s that this is about more

than the facts of the misdemeanor case before the C ourt; rather it is about Justice Dauphinot’s general antagonism toward the e lected District21 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-judic ial tone by an appellate justice toward one of the parties of an a ppeal. 2. Justice Dauphinot expresses general opinions tha t she has formed about the Wichita County District Attorney a nd her staff that she clearly carries from case-to-case. Second, instead of limiting her dissent to the iss ues before the court

in Roberson , Justice Dauphinot vividly expresses general opini ons that she has formed against the WCDA in general. First, as she directs her dissent to the popular, yet unclothed emperor (i.e. the ele cted District Attorney), it is clear this opinion is about far more than the is sues before the Court in Ex parte Roberson . Justice Dauphinot confirms this in the second pa ragraph when she states, “[a]ppellate judges are in a bette r position than trial judges to see patterns of conduct.” 23 

### Justice Dauphinot then casts this case as part of an observed pattern: “appellate jud ges have an obligation to speak up when observed patterns show a course of co nduct at odds with

constitutional mandates and fundamental fairness.” 2422 The reference to “no matter how popular the emper or 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 pattern s” and that these “observed patterns” have prompted her to “speak up” and tell the popular, yet unclothed emperor (the elected District Attorne y) that her office is “at

odds with constitutional mandates and fundamental f airness.” 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 ration ale for deciding the case and impugning the motivations and integrity of the Wichita County District Attorney and her staff, including the misd emeanor 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 befo re her in any particular

case.25 Id

.

### 3. Justice Dauphinot’s antagonism to the WCDA is de monstrated by her willingness to substitute her judgment for t he trial judge’s on matters of credibility determination and by igno ring settled, binding case law. Justice Dauphinot’s deep-seated and demonstrated a ntagonism toward the WCDA has significant consequences: it i s 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 b y the trial judge, and by

the record in the case. 27 

### Since Justice Dauphinot ignores the credibility26 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 circumv ent [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 appella te court must pay almost absolute deference to the trial court’s findings of fact bas ed 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 fa cts 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, n o pet.) (Justice Dauphinot states, “Because a decisio n 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 preceden t and the record in cases involving the WCDA, she must be harboring a deep-se ated antagonism toward the WCDA. Any one of these would be a serio us departure from judicial norms; taken together they show her undeni able animus and its

influence. a) Justice Dauphinot would substitute her credibili ty judgment for the trial judge based upon the “observed patterns” she references. Even though it is well-established that a trial ju dge’s determinations of matters of credibility entitled to almost total def erence from an appellate court, Justice Dauphinot would ignore this preceden t 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 o nly the conduct in the courtrooms over which they preside, appellate court s are presented with records from other courts in that county...Appellate judges are in a betterthe appellate court should afford almost total defe rence 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 co nduct.” 29 

### Thus, Justice Dauphinot begins her dissent by stating why she bel ieves she is in a better position than the trial judge to know what was real ly going on in the County Court at Law #1 of Wichita County. Justice Dauphinot cites the trial judge’s credibil ity determination relating to Investigator Cavinder’s conduct: “And I ’m not casting fault on Investigator Cavinder at all. I understand that wa s an honest mistake. I completely believe that he believed he was speaking to Ms. Steele.” 30 

### Then, Justice Dauphinot promptly ignores this credi bility determination of the trial judge and instead substitutes her own jud gment: “The record casts doubt on Cavinder’s testimony concerning his own kn owledge.” 31 

### Despite the trial judge stating on the record that he was n ot casting fault on Investigator Cavinder, that it was an “honest mista ke” and that he completely believed Cavinder, Justice Dauphinot ins tead implicitly calls

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

### Justice Dauphinot, based upon her antagonism towar d the WCDA and the “observed patterns” of abuse that she claim s to have discerned, has subsumed a power not granted to her by the Rule s of Appellate29 Roberson , 2015 WL 148476 at *5-6. (Dauphinot, J., dissentin g). 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 Dauphi not expresses toward

the WCDA. b) Justice Dauphinot’s antagonism toward the WCDA i s also evidenced by her refusal to apply the binding prece dent. While Justice Dauphinot recites that the Court of Criminal Appeals requires proof that the prosecution intended to cau se a mistrial for jeopardy to bar a second prosecution, Justice Dauphinot igno res that standard in favor of her own standard: “At some point, appellat e courts must hold that the conduct is so egregious that the party cannot a void 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 t he Court of Criminal Appeals. 35 

### This is not a situation where Justice Dauphinot s imply disagrees with the majority about the particular Wheeler factors or how much weight to give them; rather, Justice Dauphinot would reverse the33 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., dissenti ng).

### case without reference to the binding precedent. 36 

### The only explanation for Justice Dauphinot failing to engage and apply bindi ng precedent cited in the majority opinion is that she is solely motivate d by her antagonism

toward the WCDA. c) Justice Dauphinot’s antagonism is further displa yed by the unwarranted speculation and assumptions that she ma kes in Ex parte Roberson. In addition to ignoring the credibility determinati on of the trial judge and failing to apply binding precedent, Justice Dau phinot’s dissent also contains unsupported speculations and assumptions w hich clearly flow from her antagonism toward the WCDA. 37 

### In rejecting Investigator Cavinder’s sworn testimo ny, impugning him as a liar, and rejecting the trial judge’s determin ation that Investigator Cavinder testified honestly, Justice Dauphinot seek s a motivation for Investigator Cavinder’s actions other than an “hone st mistake.” 38 

### Thus, Justice Dapuhinot advances a theory that Investigat or Cavinder’s actions were part of the prosecutor’s strategy to obtain mo re time to give discovery

notice. 39 

### Justice Dauphinot’s theory was that the prosecuto r and the36 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 eit her 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 cou rt excluding anything; rather, the trial judge had just granted a motion-in-limine. 42 

### It is well-established law that a motion-in-limine preser ves 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 defenda nt. 44 

### Fourth, Justice Dauphinot claims the prosecutor en gaged in a “conscious decision” to withhold mandated discovery as a trial tactic. 45 

### There is simply no support that the prosecutor enga ged in any trial tactic, that the prosecutor made a “conscious decision,” or that the information40 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 pr osecutor 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 w ere 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 co urt indicated that the prosecutor would be able to ask the officers whethe r 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 motive s for improper conduct which are not born-out by the record. Sixth, while Justice Dauphinot states “[t]he prose cution did not provide mandated discovery to the defense,” this pr oposition is also46 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 wou ld ask “if defense counsel intends to challenge the legality of that e ntry,” 52 

### there was never an offer of proof in the record or a ruling by the tri al 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 m isconduct that the State intended to offer into evidence was untimely and th at 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 l ike 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 th at ground. Make sure you come up before you start with them.” 56 

### Thus, Justice Dauphinot conflates a ruling on a mo tion in limine with an evidentiary ruling at trial when she wrongly sta ted that the trial judge had

“ruled that the notice of extraneous acts of miscon duct that the State51 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 i n Roberson).	

### intended to offer into evidence was untimely and th at 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 admissibi lity 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 mo tion in limine and an evidentiary ruling. 60 

### That Justice Dauphinot would misrepresent a rulin g on a motion in limine as an evidentiary ruling can onl y be motivated by her high antagonism to the WCDA and demonstrates that t he she applies a different set of rules when the WCDA is a party tha n she does in other

cases. 6157 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 t he 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 admissibili ty 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 m isconduct that the State intended to offer into evidence was untimely and that the evide nce, 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 a n evidentiary ruling.


### II. The Wichita County District Attorney denies in the strongest terms possible Justice Dauphinot’s outrageous sugge stion that her office engages in a pattern of misconduct that violates the constitution and fundamental fairness. Further, Justice Dauphinot violated judicial princi ples by making such a sweeping pronouncement on extremely l imited information when it was not a case or controversy b efore 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 sugge stion that her office engages in a pattern of misconduct that violates th e constitution and fundamental fairness. The Wichita County District A ttorney takes her oath

to enforce the Constitution and the laws of the Sta te of Texas extremely seriously. Second, Justice Dauphinot’s assertion is all the m ore indefensible because (1) the Wichita County District Attorney’s Office never received an opportunity before a trial court as a fact-finder t o offer facts or evidence to

show the utter fallaciousness of this assertion sin ce it was not an issue before the trial court and Justice Dauphinot is exp ressing 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 c ases 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 evide nce or testimony about the alleged pattern because it was not an issue before the trial court. While Justice Dauphinot cites “observed patterns” t hat “show a

course of conduct at odds with constitutional manda tes and fundamental fairness” as the basis for her dissent, this suppos ed 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 appropriate62 See

Attachment A, IV-V R.R. (motion for mistrial and h earing 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 c ourts do not take testimony or receive evidence).

### remedy is to abate the appeal and refer the case fo r an evidentiary hearing

in a trial court. 67 

### Since an alleged pattern was not an issue before t he trial court and the appellate court did not abate the appeal and re mand for such a determination, the WCDA never had the opportunity t o offer any evidence

to refute the erroneous claim. To state such a seri ous conclusion as fact in the dissent of a published opinion when there has b een no evidentiary hearing before a trial court on the issue is comple tely 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 ma kes a sweeping advisory pronouncement without the WCDA having an o pportunity to rebut that pronouncement. 2. Justice Dauphinot cites three opinions out of th ousands of cases handled by the WCDA. For the supposed pattern that she has observed, Ju stice Dauphinot cites three cases handled by the WCDA. These cases that she cites span67 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 “j udicial power does not include the power to issue advisory opinions” which result “whe n a court attempts to decide an issue that does not arise from an actual controvers y 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 score s of which have gone before this honorable Court of Appeals. The lack o f an evidentiary hearing on such an important issue is further highlighted w hen 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 thr ee cases she cited supported her proposition (which they do not), thre e 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 estab lish 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 discretiona ry 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 t rial69 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

T HE S TATE ’ S P ETITION FOR D ISCRETIONARY R EVIEW , Dabney v. State , No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?Med iaVersionID=59aad18c-9d6a4018-8b70-6fbb32cd8db1

.

### judge had admitted the evidence as rebuttal evidenc e. 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 allegati on that the WCDA engages in discovery abuses, even though Judge Brot herton in Dabney found no such discovery abuse and Justice Walker di scerned no such abuse. Furthermore, the State questions the fairne ss of using an opinion where the asserted issue is the subject of a pendin g petition for discretionary review. 75 

### Second, Justice Dauphinot cites Pitman v. State

. 76 

### In Pitman, this Court affirmed the judgment and sentence finding th at 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 the72 Attachment B, VI R.R. at 21, 33. 73 Id

. 74 Dabney

, 2014 WL 5307178 at *10-11 (Walker, J., dissenting ). 75 See

T HE S TATE ’ S P ETITION FOR D ISCRETIONARY R EVIEW , Dabney v. State , No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?Med iaVersionID=59aad18c-9d6a4018-8b70-6fbb32cd8db1 76 Pittman v. State , 372 S.W.3d 261, 270 (Tex. App.—Fort Worth 2012, p et ref’d). 77 Id

.

### WCDA’s policy concerning CPS records – was “not nec essary to the disposition of this appeal” and, therefore, mere di cta. 78 

### Furthermore, the position taken by the WCDA – that the CPS records s hould be subpoenaed and presented to the trial court for in camera revi ew because of the confidentiality of CPS records – is now supported b y 39.14(a) of the Code of Criminal Procedure excluding records deemed conf idential 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 at torney-client knowledge to the criminal prosecutor in a prosecution of an o pposing 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 now78 Id. at 270. 79 Tex. Code Crim. Proc. art. 39.14 (West Suppl. 201 4) (“Subject to the restrictions provided by Section 264.408 Family Code...”) & Tex. F am. Code Ann. § 264.408 (West 2014) (“[CPS documents] may only be disclosed for purposes consistent with this chapter.”; the only exceptions to this confidential ity for a prosecuting attorney are “as needed to provide services under this chapter” or f or 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 ne ither preserved nor ruled upon as part of her “observable pattern” of discove ry 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 cit ed two cases where the Court did not find a discovery violation. 86 

### The third case she cites – Dabney – currently has a petition for discretionary revie w pending before80 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 fo r 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 see s a pattern in them reveals that she has such a high degree of antagoni sm toward the WCDA that she will see a pattern where none exists. Thi s 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 p revailing on its motion for en banc reconsideration on the Joe Johnson appeal and this dissent suggests the basis for Just ice Dauphinot’s antagonism toward the WCDA.

The WCDA’s successful motion for en banc reconside ration in

Johnson v. State

in October 2014 in which this Court withdrew Justi ce 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 Dauphin ot in Johnson

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

record. 89 

### The memorandum opinion’s reasoning was premised u pon a87 See

T HE S TATE ’ S P ETITION FOR D ISCRETIONARY R EVIEW , Dabney v. State , No. PD1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?Med iaVersionID=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.—For t Worth Feb. 14, 2013) (mem. op, not designated for p ublication) ( 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 reconsidera tion which detailed the many factual errors that served as the premise of t he false open-door theory. 91 

### On October 9, 2014, a majority of this Court agree d, thereby withdrawing Justice Dauphinot’s opinion, and affirm ing the conviction. 92 

### Justice Dauphinot dissented from the majority decis ion. 93 

### The State believes that to an impartial observer, it would appear to be more than a coincidence that following a majority o f this Court rectifying the false open-door premise that formed the basis of he r open-door theory in Johnson v. State, Justice Dauphinot has since developed and expresse d such animus toward the WCDA where she is willing to ignore the trial judge’s credibility determination, ignore binding p recedent, and discern a pattern of misconduct where none exists. 94withdrawn 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 ); M OTION FOR EN BANC R ECONSIDERATION , 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), releas ed 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 believe s the opinion is founded on false premises and is contrary to the tr ial 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 reconside ration 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 h igh degree of antagonism toward the WCDA that she carries with he r from case-to-case.

The State has shown that “a reasonable member of th e public at large, knowing all the facts in the public domain concerni ng the judge and the case, would have a reasonable doubt that [Justice D auphinot] is actually impartial” and that “a reasonable person, knowing a ll the circumstances involved, would harbor doubts as to the impartialit y of [Justice Dauphinot].” The deep-seated antagonism that Justice Dauphinot h olds affects her ability to dispassionately apply the settled law fr om the Court of Criminal


### Appeals, her ability to defer to credibility determ inations 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 autho red, 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 rule s. 95 

### Justice Dauphinot has expressed an attitude so r esistant to fair and dispassionate inquiry as to cause a reasonable memb er of the public to question the objective nature of her rulings in cas es involving the WCDA. Since the State has a due process right to have a n eutral and detached hearing body or officer, and since that due process right would be violated by Justice Dauphinot sitting on these panels, recus al is proper. Prayer The State prays Justice Dauphinot recuse herself f rom the three above-captioned cases. Absent a self-recusal, the State prays that this en banc Court enter a finding that Justice Dauphinot s hould 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 evid ence and does not preserve error.”); Stevenson , 993 S.W.2d at 867 (“Because a decision of the cou rt 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 t otal 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 rulin g, 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 Investig ator 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 tex t 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 Mi chael 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 teleph one with Michael F. Payne (attorney for Antonio Leija, Jr.) on the merits of this motion, and he was not able to confer whether or no t 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

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

2impartiality 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).

3The 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.

41 

### 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 CLERK2



### The State prays that this court stay further proce edings in this case and not render an opinion until the Court of Crimin al Appeals has acted on the State’s Petition for Discretionary Review. Thi s motion is made in good faith, as three out of seven justices sitting en ba nc 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 fax3 

### Certificate of Compliance I certify that this document contains 119 words, c ounting 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 tex t 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 Mi chael 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 Micha el Payne (attorney for Antonio Leija) in person on February 27, 2015, and that he is unopposed to this motion.

/s/Maureen Shelton Maureen Shelton