Lewis, Gordon Ray ( 2015 )

PD-0173-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/5/2015 3:37:19 PM
November 5, 2015 Accepted 11/5/2015 3:43:52 PM
CASE NO. PD-0173-15 ABEL ACOSTA
CLERK
In the Court of Criminal Appeals
Austin, Texas
GORDON RAY LEWIS
Petitioner
V.
STATE OF TEXAS
Respondent
Appealed from the Second Court of Appeals
Fort Worth, Texas
Court of Appeals Cause No. 02-13-00367-CR
MOTION FOR REHEARING OF PETITION FOR
DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES Gordon Ray Lewis, petitioner, who makes and files the
following motion for rehearing of his petition for discretionary review
refused by the Court on October 14, 2015, and in support thereof would
respectfully show:
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ARGUMENT
I. As the court of last resort for criminal matters, the Court
should hear and decide cases like this one which, although
it arises from unusual circumstances, provides provides a
unique opportunity to establish precedent for future cases.
In this case, Gordon Ray Lewis was tried before the same judge his
mother was convicted of threatening to kill because of his indictment.
Counsel for petitioner has been unable to find a similar factual scenario in
cases from Texas or other jurisdictions. Even so, the guarantee of
fundamental fairness under the Due Process Clause1 and the state
constitution’s due course of law clause, as well as Tex. R. Civ. P. 18b(b)(1)’s
mandate that a judge be recused where his impartiality might reasonably be
questioned, is still very real and applicable to the case at bar.
These questions are fact intensive and must be decided on a case by
case basis. But the Court’s refusal to order full briefing by the parties on
the Court’s refusal order stands that rule on its head because without
review, there can be no case by case basis. Instead the Court’s action allows
this important issue to be swept under the rug by an unpublished court of
appeals opinion.
1 U.S. CONST. AMEND. XIV; TEX. CONST. Art. I § 19.
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Lewis contends that he is entitled to a new trial because of the
administrative judge’s failure to recuse Judge Walton. It goes without
question that the state disagrees. Ultimately this Court may decide after
full briefing and possible argument that Lewis not entitled to a new trial.
But at least this Court will have further delineated the parameters of Rule
18b.
II. Whether Lewis received a fair trial in a fair tribunal, as a
basic requirement of due process, is a question of
importance justifying this Court’s attention.
This Court has held that due process requires a neutral and detached
hearing body or officer.2 This is precisely the same principle embraced by
the United States Supreme Court when it held that “[i]t is axiomatic that
‘[a] fair trial in a fair tribunal is a basic requirement of due process.’”3 As
the Supreme Court recognized,
[S]uch a stringent rule may sometimes bar trial by judges who have
no actual bias, and who would do their very best to weigh the scales of
justice equally between contending parties. But to perform its high
function in the best way ‘justice must satisfy the appearance of justice’
Offutt v. United States, 348 U.S. 11, 14 (1954).4
2 Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006), citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973).
3 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009). Cf. In re
Murchison, 349 U.S. 133, 135 (1955)( “’Every procedure which would offer a possible
temptation to the average man as a judge…not to hold the balance nice, clear and true
between the state and the accused denies the latter due process of law.’”), quoting
Tumey v. Ohio, 273 U.S. 510, 532 (1927).
4 In re Murchison, 349 U.S. at 135.
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Lewis’ mother was convicted of retaliation and sentenced to six years
because she threatened Judge Walton after Lewis was indicted.5 The Court
can take judicial notice of the nature of the charges against Karen Adams
and the ultimate fact of her conviction.6
The provisions of Rule 18b apply in both civil and criminal cases.7
For this reason the Court should heed Justice Spears’ eloquent comments
regarding the importance of the policies underlying recusal based on the
policies of fairness and impartiality:
Public policy demands that the judge who sits in a case act with
absolute impartiality. Pendergrass v. Beale, 59 Tex. 446, 447 (1883).
Beyond the demand that a judge be impartial, however, is the
requirement that a judge appear to be impartial so that no doubts or
suspicions exist as to the fairness or integrity of the court. Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823
(1986); Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S. Ct. 1610, 64
L. Ed. 2d 182 (1980). The judiciary must strive not only to give all
parties a fair trial but also to maintain a high level of public trust and
confidence. Indemnity Ins. Co. v. McGee,163 Tex. 412, 356 S.W.2d
666, 668 (Tex.1962). The legitimacy of the judicial process is based
on the public's respect and on its confidence that the system settles
controversies impartially and fairly. Judicial decisions rendered
under circumstances that suggest bias, prejudice, or favoritism
undermine the integrity of the courts, breed skepticism and mistrust,
5 Adams v. State, 2015 WL 505143 (Tex. App.—Fort Worth, pet. denied) (not designated
for publication).
6 See Huffman v. State, 479 S.W.2d 62, 68 (Tex. Crim. App. 1972); Turner v. State, 733
S.W.2d 218, 223 (Tex. Crim. App. 1987) (en banc); ex-parte Flores, 537 S.W.2d 458
(Tex. Crim. App. 1978) (court may take judicial notice of its own records in the same or
related proceedings involving same or nearly same parties).
7 Arnold v. State,853 S.W.2d 543, 544 (Tex. Crim. App. 1993).
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and thwart the very principles on which the judicial system is
based. The judiciary must be extremely diligent in avoiding any
appearance of impropriety and must hold itself to exacting standards
lest it lose its legitimacy and suffer a loss of public confidence.
Although the court reverses the trial court's judgment, it remains
silent on the recusal question and thus fails to cure the perception of
unfairness.8
Simply put, Lewis’ mother was convicted of threatening to harm or
kill Judge Walton because Lewis was indicted for murder. Even though
Judge Walton correctly referred the recusal motion to the administrative
judge, the fact remains that because of the administrative judge’s decision
Lewis was tried for capital murder before the same judge his mother
threatened to kill for indicting him. If that does not describe a situation
where a judge’s impartiality “might reasonably be questioned”, then what
does?
Judge Walton’s “actual state of mind, purity of heart, incorruptibility,
or lack of partiality are not the issue.”9 In this situation, “what matters is
not the reality of bias or prejudice but its appearance.”10 If that notion,
either embodied in Texas Rule of Civil Procedure 18b(b)(1) or in the more
fundamental notions of federal and state constitutional due process, means
8 Sun Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206
(Tex.1989)(Spears, J., concurring).
9 Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995).
10 Litekey v. U.S. 510 U.S. 540, 548 (1994).
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anything at all beyond mere lip service the Court should grant review on
this important issue, even if the ultimate result is to affirm Lewis’
conviction.
WHEREFORE, PREMISES CONSIDERED, Gordon Ray Lewis prays
that his motion for rehearing of his petition for discretionary review in the
above styled and numbered cause be granted as to the specific question of
whether he was entitled to recusal of Judge Ralph H. Walton, Jr. at trial.
Lewis further prays that his petition for discretionary review be granted and
that the Court allow full briefing on the issue and that upon hearing in this
matter by the Court his judgment of conviction be reversed and the case
remanded for a new trial.
Respectfully submitted,
By: /s/Michael W. Minton
MICHAEL W. MINTON
State Bar No. 14194550
THE LAW OFFICES OF
MICHAEL W. MINTON, P.L.L.C.
6100 Western Place, Suite W0541
Fort Worth, Texas 76107
mminton@mintonlaw.com
Telephone: 817-377-9200
Facsimile: 817-377-9201
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CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2015, a true and correct copy of
the above and foregoing document was sent via the efiling service provider
and/or facsimile transmittal to all counsel of record in the above-styled and
numbered cause.
/s/Michael W. Minton
MICHAEL W. MINTON
CERTIFICATE OF COMPLIANCE
I hereby certify in accordance with Tex. R. App. P. 9.4(i) that the
above and foregoing document was prepared with Microsoft Word for a
total of 1,405 words.
/s/Michael W. Minton
MICHAEL W. MINTON
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