Lamont Cousins v. the State of Texas

Opinion

In the

Court of Appeals Second Appellate District of Texas at Fort Worth

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No. 02-25-00136-CR

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LAMONT COUSINS, Appellant V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 3 Tarrant County, Texas

Trial Court No. 1827911

Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Wallach

MEMORANDUM OPINION

Appellant Lamont Cousins appeals his capital murder conviction and life sentence. In his only issue, Cousins argues that the trial court abused its discretion by denying his pretrial motion to disqualify the Tarrant County Criminal District Attorney’s Office from this case. Because the trial court did not abuse its discretion and, in fact, would have erred to grant the motion to disqualify, we will affirm.

Background

Cousins does not challenge the sufficiency of the evidence, and because we conclude that the trial court did not abuse its discretion, we need not conduct a harmless-error analysis. The nature of his issue, however, warrants a summation of this case’s procedural history.

In 2021, when a grand jury indicted Cousins for capital murder, the Honorable Robb Catalano was the presiding judge of Tarrant County Criminal District Court No. 3. Cousins’s trial counsel filed a series of ex parte motions under seal,1 and Judge Catalano signed orders on those motions. In January 2023, Judge Catalano left the bench and accepted the position of first assistant criminal district attorney at the Tarrant County Criminal District Attorney’s Office. In January 2025, Cousins filed a

See Tex. Code Crim. Proc. art. 26.052(f) (providing procedure for 1

court-appointed counsel to “file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses” in a death penalty case).

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motion to have the Tarrant County Criminal District Attorney’s Office “recused”2 on the grounds that Catalano had “reviewed motions that [were] filed under seal” as judge and that he was “privy to sealed information” as a prosecutor.

The trial court heard Cousins’s motion in February 2025. At the hearing, Dale Smith, one of the prosecutors assigned to Cousins’s case, told the trial court that • as the first assistant criminal district attorney, “Catalano has had no involvement in this case”;

• Smith and the other prosecutor on the case “do not speak to [Catalano]

about the facts of this case”;

• the prosecutors “report directly to . . . the criminal division chief of the Tarrant County Criminal District Attorney’s Office in all matters of this case”; and

• Catalano “has not disclosed of or spoken to [the prosecutors] about any matters that came before him as the judge of [Tarrant County] Criminal District Court No. 3.”3

2 Although Cousins used the verb “recuse” throughout his motion, the motion is better understood as a motion to disqualify, and that appears to be how the trial court treated it. For purposes of this appeal, we do likewise. See Ex parte Gray, 649 S.W.2d 640, 642 (Tex. Crim. App. 1983) (looking “not to the nomenclature or form of the relief sought, but to its substance”).

3 It does not appear from the record that Smith was under oath when he made these statements. Normally, an attorney’s statements must be under oath to be considered evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). However,

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The trial court denied Cousins’s motion. Cousins was subsequently tried and convicted on the capital murder charge. The State had sought the death penalty, but because the jury answered the first special issue4 in the negative, Cousins was sentenced to life imprisonment without parole. See Tex. Code Crim. Proc. art. 37.071, § 2(g).

Discussion

In his only appellate issue, Cousins argues that because his trial counsel had “disclosed confidential information to” Catalano, either “the Tarrant County Criminal District Attorney’s Office should have been disqualified or the trial court should have crafted a sufficient remedy to preserve [Cousins’s] due process rights.” We reject Cousins’s argument because he has failed (1) to establish legal grounds for disqualifying the entire Tarrant County Criminal District Attorney’s Office from his case and (2) to show that his due process rights were impinged.5

Smith made clear that he was “mak[ing] an offer of proof as an officer of the [c]ourt,” and Cousins’s trial counsel did not object. By failing to object, Cousins waived the oath requirement. See id. The trial court could thus have considered Smith’s unsworn statements as evidence. See id.; see also State v. Guerrero, 400 S.W.3d 576, 585 & nn.32 & 36 (Tex. Crim. App. 2013) (applying Banda rule in criminal case “when counsel is speaking from first-hand knowledge”); Holloway v. Arkansas, 435 U.S. 475, 486, 98 S. Ct. 1173, 1179 (1978) (explaining that “attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath” (cleaned up)).

See Tex. Code Crim. Proc. art. 37.071, § 2(b)(1).

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Cousins did not mention due process in his written motion or at the hearing

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on his motion. A constitutional objection must alert the trial court to the

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Standard of Review “The standard of review for disqualification is whether the [trial court] abused its discretion.” Williams v. State, 707 S.W.3d 233, 240 (Tex. Crim. App. 2024). A trial court abuses its discretion only when the decision lies outside the zone of reasonable disagreement. Id.; Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). Law on Disqualification of District Attorneys The office of a district attorney is constitutionally created and protected, and a district attorney’s authority “cannot be abridged or taken away.” Williams, 707 S.W.3d at 240 (quoting Landers v. State, 256 S.W.3d 295, 303–04 (Tex. Crim. App. 2008)); see Tex. Const. art. V, § 21; see also State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990). A trial court has limited authority to disqualify an elected district attorney and his staff from the prosecution of a criminal case. Williams, 707 S.W.3d at 240. “A trial court may not disqualify a district attorney or his staff on the basis of a

constitutional bases for the objection, allowing the trial court to make a reasoned ruling. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (“[T]he trial court should know when it is being asked to make a constitutional ruling because constitutional error is subject to a much stricter harm analysis on appeal . . . . The court needs to be presented with and have the chance to rule on the specific constitutional objection because it can have such heavy implications on appeal.”); Turner v. State, 413 S.W.3d 442, 447–48 (Tex. App.—Fort Worth 2012, no pet.) (“Although [appellant] did not give the trial court any constitutional authority for his objection to the exclusion of [his] family members [from jury selection], he made his desire for their inclusion clear . . . .”). Because no magic words are needed to preserve a constitutionality argument, see Faust v. State, 491 S.W.3d 733, 744 n.28 (Tex. Crim. App. 2015), we will treat his due process complaint as preserved and review its merits.

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conflict of interest that does not rise to the level of a due process violation.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). Analysis In arguing that the Tarrant County Criminal District Attorney’s Office should have been disqualified, Cousins relies solely on the fact that “Catalano had reviewed motions containing privileged information that had been filed under seal.” He concedes that “the record does not contain any such disclosure of privileged information” but contends that he was prejudiced by Catalano’s “dual status as the former judge with confidential information and current prosecuting official.” But Catalano was only a “current prosecuting official” in the sense that he was first assistant criminal district attorney at the Tarrant County Criminal District Attorney’s Office. The trial court could have reasonably relied on Smith’s representations that Catalano had not had any involvement with the prosecution of Cousins’s case and had not disclosed to the prosecutors any information he had gained about the case in his role as judge.

For this reason, Cousins’s remaining contention that “the trial court should have entered an order preventing . . . Catalano from participating in the proceedings in any manner and outlined screening procedures” also fails.6 It is difficult to conceive

6 Cousins did not request that the trial court enter such an order or outline any screening procedures. He requested only “that the Tarrant County [Criminal] D[istrict] A[ttorney]’s [O]ffice . . . recuse themselves and [either] bring in . . . a special prosecutor or just send it to a completely different district attorney’s office all

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what “screening procedures” could be more effective than those outlined by Smith. Absent any showing that Catalano was personally involved in the prosecution of Cousins’s case or that he shared confidential information with the prosecutors who were handling the case, Cousins has not shown that his defense was prejudiced or that his due process rights were violated. See Clarke v. State, 928 S.W.2d 709, 722 (Tex. App.—Fort Worth 1996, pet. ref’d) (op. on reh’g). Accordingly, the trial court was without authority to disqualify the Tarrant County Criminal District Attorney’s Office from Cousins’s case and did not abuse its discretion by denying his motion. See Williams, 707 S.W.3d at 240; Landers, 256 S.W.3d at 303–05; Pirtle, 887 S.W.2d at 927. We overrule Cousins’s issue.

Conclusion

Having overruled Cousins’s issue, we affirm the trial court’s judgment.

together.” Thus, we question whether he can complain on appeal that the trial court did not fashion him a remedy that he never sought. See Tex. R. App. P. 33.1(a)(1) (“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .” (emphasis added)). However, in the interest of justice, we will briefly explain why such an order was unnecessary in this case. See Tex. R. App. P. 47.1.

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/s/ Mike Wallach

Mike Wallach

Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 27, 2026