PD-0241-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS MARCH 4, 2015 PD-0241-15 Transmitted 3/4/2015 4:20:51 PM Accepted 3/4/2015 6:29:05 PM ABEL ACOSTA Cause No. ___________ CLERK
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). 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. 2 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
3 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.
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.
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No. 02-13-00473-CR
Court of Appeals Second District of Texas Fort Worth
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,
ϭ 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. Ϯ 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. ϯ 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. ϰ 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. ϱ 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). ϲ 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). ϳ 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. ϴ 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. ϵ 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, ϭϬ 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.”). ϭϭ 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. ϭϮ 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). ϭϯ 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. ϭϰ 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). ϭϱ even needed to be disclosed.46 Additionally, no offer of proof or evidentiary 47 ruling was made 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. ϭϲ 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). ϭϳ 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. ϭϴ 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
ϭϵ 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). ϮϬ 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). Ϯϭ 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. 70 First, Justice Dauphinot cites Dabney v. State, 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. PD- 1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a- 4018-8b70-6fbb32cd8db1. ϮϮ 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. PD- 1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a- 4018-8b70-6fbb32cd8db1 76 Pittman v. State, 372 S.W.3d 261, 270 (Tex. App.—Fort Worth 2012, pet ref’d). 77 Id. Ϯϯ 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) Ϯϰ 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) Ϯϱ 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. PD- 1515-14 (Tex. Crim. App. Nov. 12, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=59aad18c-9d6a- 4018-8b70-6fbb32cd8db1 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 Ϯϲ 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. Ϯϳ 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
Ϯϴ 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). Ϯϵ 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.
ϯϬ 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.
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.
ϯϭ FILE COPY
NO. 02-13-00319-CR
MICHAEL OLIVER SMITH APPELLANT
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY TRIAL COURT NO. 52,047-B
ANTONIO LEIJA, JR. APPELLANT
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
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 FILE COPY
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 ACCEPTED 02-13-00473-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 2/27/2015 10:24:40 AM DEBRA SPISAK CLERK
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
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). 1 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.
/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
2 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.
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.
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.