Sex offender asks Waco's 10th Court of Appeals Chief Justice Gray to recuse himself from case

2-1-2009 Texas:

Waco’s 10th Court of Appeals Chief Justice Tom Gray, who recently was disciplined by the State Commission on Judicial Conduct, has been asked to step down from a case by a convicted sex offender because of the acerbic nature of previous opinions the judge wrote in his case.

Bobby Blake Newton’s aggravated sexual assault of a child case has taken a circuitous route through the criminal justice system. Most recently, on Jan. 14, the Court of Criminal Appeals in Austin sent the case back to Waco’s 10th Court of Appeals for further consideration in light of a higher-court opinion that had not been rendered when a divided 10th Court reversed the conviction in June 2007.

Newton was sentenced to 60 years in prison in February 2006 after a trial in 272nd State District Court in Brazos County. The three-judge panel of Waco’s 10th Court of Appeals initially affirmed his conviction in March 2007 but reversed the case in June 2007, with Gray dissenting, when Newton’s attorney, Brian Wice, of Houston, asked the court to reconsider its earlier ruling.

Now that the case is back in the 10th Court, Wice is asking that Gray recuse himself. Gray recently was admonished by the State Commission on Judicial Conduct for allowing his acrimonious relationships with former Justice Bill Vance and Justice Felipe Reyna “to improperly influence his conduct and judgment.”


Vance retired in December and was replaced by Justice Rex Davis.

Gray said Friday that he was precluded from discussing the motion to recuse because it is a pending matter. A court official said Friday afternoon that no action had been taken on the recusal motion.

A public admonition is the least serious public rebuke the commission can hand out, behind a suspension, public reprimand and public warning.

In his dissent in Newton’s case, Gray wrote, “It is impossible for me to convey the level to which I am disappointed by my colleagues by the issuance of the order to change the publication designation of Newton v. Texas. Their action shows that they have no regard for the rules of appellate procedure, and, therefore, no respect for the rules of law.”

Gray continued by inviting readers to “draw their own conclusions” about the propriety of the majority’s actions.

“But if a person has any respect for the rule of law, the person would have to ask, why would the majority disregard and violate the rule that is so clearly applicable?” Gray wrote.

While the commission did not sanction Gray for what it called the “unprofessional personal attacks” against his colleagues in his frequent dissents, it did note that the tone of his dissents “likely had the effect of diminishing public confidence in the integrity and impartiality of the judiciary and cast discredit on the administration of justice.”

In seeking Gray’s recusal, Wice charges that while the commission did not sanction Gray for his writings, they call into question his ability to remain impartial in Newton’s case.

“If all Chief Justice Gray had claimed was that his colleagues were wrong, recusal would not be in order,” Wice wrote. “But in going one step further, in suggesting that they are lawbreakers, and that they ‘must have something larger at work here than just getting to what the majority believes is the correct judgment,’ Chief Justice Gray has suggested that the majority’s decision was not informed by its faithful adherence to the law, but to other, more sinister motives susceptible to any number of interpretations, any of which diminish public confidence in the integrity and impartiality of the majority, and all of which cast a giant shadow . . .” on Gray’s ability to remain impartial.

Wice declined comment Friday on the motion. ..News Source.. by Tommy Witherspoon