Lewis, Michael David

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,237-01

EX PARTE MICHAEL DAVID LEWIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR30418-A IN THE 238TH DISTRICT COURT
FROM MIDLAND COUNTY

KELLER, P.J., filed a dissenting opinion in which YEARY and KEEL, JJ., joined.

DISSENTING OPINION

The Court commits an unforced error in this case, and in doing so unnecessarily jeopardizes

thousands of convictions out of Midland County that were obtained over a period of around nineteen

years.1 Regrettably, the Court hazes over crucial facts, cites to cases that are factually and legally

distinct from this case, and fails to cite a single pertinent due process case to support its decision.

The concurring opinion, though justified in its disapproval of what happened here, cites as fact

1
See, e.g., District Courts: Activity by County Summary, September 1, 2016 to August 31,
2017, p. 5, “criminal cases” column for Midland County (showing 2,765 disposed cases), on internet
at https://www.txcourts.gov/media/1440656/3-district-activity-summary-by-county.pdf .
LEWIS DISSENT — 2

allegations in a motion upon which this Court has not acted and cites to an unpublished opinion of

this Court. To be sure, the situation in this case is unfortunate. And admittedly, there are no on-

point cases for the Court to cite. But under the law and cases that I can find, Applicant has not

established a denial of due process.

I. BACKGROUND

Applicant was convicted of the capital murder of a nine-month old child and sentenced to

life in prison without parole. In this, his first and only post-conviction habeas application, he

alleges, among other things, that he was denied a fair and impartial judge at trial. The habeas court

recommended that relief be denied.

Ralph Petty worked for the Midland County District Attorney’s Office as a prosecutor

between 2002 and 2019. During Applicant’s capital murder case in 2005, Petty represented the State

in at least two contested hearings. Judge John Hyde presided over Applicant’s trial.

Petty was also paid by Judge Hyde and other Midland County district court judges for

legal work he performed on the side for them on post-conviction habeas cases from 2001

through 2014, as well as in 2017 and 2018.

Applicant filed this habeas application, alleging that at his trial he was denied a fair

and impartial judge. Judge Ana Estevez was appointed to preside over the habeas

proceeding.2 Judge Estevez requested responses from the parties on the question of whether

Petty had worked for Judge Hyde on a habeas application from Applicant. The judge sent

2
Besides being a district judge, she is also the Regional Presiding Judge for the Ninth
Administrative Judicial Region.
LEWIS DISSENT — 3

the following request to the parties:

Thank you for your supplemental response. I did not see a record reference to
Petty being paid for legal work in connection with Applicant’s post-conviction
application for writ of habeas corpus. If there is no evidence that Petty
actually drafted the order denying Applicant’s 11.07 writ application, I would
like the state to include a harm analysis in its response. If there is evidence of
Petty actually working for the court on drafting the order recommending
denial of a writ application, please include the record reference in your
proposed findings. Thank you.

After receiving responses, Judge Estevez recommended denying relief because Petty never

worked for the judge on a habeas application for Applicant. In fact, Applicant had never

even filed a habeas application so there was no occasion for Petty to have worked on one.

Judge Estevez found that “The Midland County District Attorney knew of Petty’s

work for Midland County judges in unrelated cases and failed to disclose it.”3 But she also

explicitly found that, “Petty never worked nor billed on a post-conviction writ of habeas corpus

on Applicant’s case.” No one has suggested that Petty worked for the trial judge on any stage of

Applicant’s case, either at trial or on habeas.

II. ANALYSIS

Applicant’s sole claim regarding the Petty issue is a conflict of interest claim alleging that

he was denied “a fair and impartial judge.” Whether a judge is deemed biased for due-process

purposes based on a conflict of interest depends on whether “as an objective matter, the average

judge in his position is likely to be neutral, or whether there is an unconstitutional potential for

3
Emphasis added.
LEWIS DISSENT — 4

bias.”4 “[A]n unconstitutional potential for bias exists when the same person serves as both accuser

and adjudicator in a case.”5 Here, though, the judge did not serve dual roles as prosecutor and judge.

Rather, a person who worked as a prosecutor also worked for the judge.

Several cases involving law clerks hold that a judge need not recuse himself because of a law

clerk’s participation in the case as a prosecutor, or relationship to a prosecutor in the case, as long

as the law clerk is screened off from working on the case for the judge.6 Petty did not work for the

judge on Applicant’s case, and Applicant has not shown that Petty’s work for the judge on other

cases created a risk of bias on the part of the judge in violation of due process.

The Court cites Metts v. State7 for the proposition that a judge can be “disqualified” due to

an “appearance of impropriety.” But Metts is inapt for two reasons. First, the legal basis of the

claim there differs from the claim here. Metts concerned the judicial “disqualification” provisions

in the Texas Constitution and the Code of Criminal Procedure.8 No one has alleged that Judge Hyde

4
Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (internal quotation marks omitted).
5
Id.
6
United States v. Martinez, 446 F.3d 878, (8th Cir. 2006) (prosecutor who had presented the
defendant’s case to the grand jury, signed the indictment, represented the United States in the early
pretrial phase of the prosecution, and cross-examined the defendant at a suppression hearing became
a law clerk for the trial judge but assigned to work exclusively on the civil docket and immediately
screened from the criminal docket); United States v. DeTemple, 162 F.3d 279, 286 n.2 (4th Cir.
1998) (law clerk married to prosecutor but judge took pains to see that law clerk did not work on the
defendant’s case); Mathis v. Huff & Puff Trucking, 787 F.3d 1297, 1313 (10th Cir. 2015) (“as soon
as the law clerk became aware of her husband’s situation, she informed the judge, who screened her
from substantive work on the case”) (citing DeTemple);
7
510 S.W.3d 1 (Tex. Crim. App. 2016).
8
Id. at 4.
LEWIS DISSENT — 5

was constitutionally or statutorily disqualified. Second, the facts are different in Metts. There, a

prosecutor signed the State’s consent to waive a jury.9 Metts was later placed on deferred

adjudication, and he was eventually adjudicated.10 After the fact, it was discovered that the judge

at the adjudication hearing was the former prosecutor who had signed the jury waiver.11 But Judge

Hyde was never himself counsel for the State in this case, so Metts is not on point.12

For the same reason, the Supreme Court cases cited by the Court are not on point. In re

Murchison involved a judge who acted as a “one-man grand jury” in accordance with Michigan law

and subsequently presided over a contempt proceeding arising out of conduct occurring in the prior

one-man-grand-jury proceeding.13 In Tumey v. Ohio, a mayor who acted as judge was paid from

court fees if the defendant was convicted.14 Offutt v. United States involved a judge who found an

attorney in criminal contempt for proceedings had before that judge.15 None of these cases involved

dual roles by a judge’s law clerk.

And while the Court characterizes Petty as the judge’s “paid judicial law clerk,” the habeas

court’s findings indicate that Petty never worked for the judge at all on any aspect of Appellant’s

9
Id. at 2.
10
Id. at 3.
11
Id.
12
See id. (describing the constitutional and statutory provisions respectively as stating that
a judge is disqualified if he has “been counsel in the case” or “has been of counsel for the State or
the accused”).
13
349 U.S. 133, 134 (1955).
14
273 U.S. 510, 531-32 (1927).
15
348 U.S. 11, 12 (1954).
LEWIS DISSENT — 6

case, and they further suggest that Petty only ever worked for the judges on post-conviction habeas

cases, effectively screening him from any pending prosecutions.

Because Applicant has failed to establish a due process violation, I respectfully dissent.

Filed: May 8, 2024

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