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IN THE

3RD DISTRICT COURT, ANDERSON COUNTY, TEXAS

____________________________

) Trial Cause No. 26,162

EX PARTE )

ROBERT LESLIE ROBERSON III, ) Writ Cause No. WR-63,081-04

APPLICANT )

)

____________________________ )

MOTION TO VACATE UNLAWFUL EXECUTION WARRANT AND ALL RELATED

ORDERS AND TO RECUSE JUDGE DEBORAH OAKES EVANS

Robert Leslie Roberson III, by and through counsel, files this Verified Motion to Vacate

Unlawful Execution Warrant and All Related Orders and to Recuse Judge Deborah Oakes Evans.

This motion is based on the following:

• Judge Evans, a retired judge, took judicial acts in this cause without compliance with the

statutory requirements in section 75.001 of the Texas Government Code necessary to

permit her to serve as an assigned judge; thus, all actions she has taken in this cause,

including the setting of an execution date, are absolutely void for lack of jurisdiction.

• Additionally, pursuant to Rules 18a & 18b(b) of the Texas Rules of Civil Procedure, Judge

Evans must voluntarily recuse herself or must be recused because her “impartiality might

reasonably be questioned.” TEX. R. CIV. PROC. 18b(b)(1).1

Because Judge Evans’ assignment and then subsequent judicial acts were unlawful, Mr.

Roberson moves to have the execution warrant and all related orders deemed null and void.

Further, because she currently has no judicial authority to act, and for the additional reasons

described below, Judge Evans should be recused from presiding in this cause.

In support of this motion, Mr. Roberson respectfully shows the following:

1 The Texas Rules of Civil Procedure governing recusal apply to both civil and criminal

proceedings. See Fuelberg v. State, 410 S.W.3d 498, 508-09 (Tex. App.—Austin 2013, no pet.).

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TABLE OF CONTENTS

Introduction..................................................................................................................................... 1

Relevant Factual and Procedural Background................................................................................ 2

I. Background of Mr. Roberson's Case...............................................................2

II. Facts Relevant to Judge Evans' Post-Retirement Qualification to Serve......................6

III. Facts Suggesting the Apprarance That Judge Evans Lacks Impartiality......................7

A. The process whereby Judge Evans came to be assigned over this matter was not

transparent and resulted in summary denials of Mr. Roberson’s repeated attempts to

be heard about a matter of life-and-death.....................................................7

B. Judge Evans’ close personal relationships with judges involved in the underlying facts

and with the current DA, Allyson Mitchell, create an appearance that Judge Evans

lacks impartiality................................................................................11

C. Judge Evans’ arbitrary rulings in Anderson County’s two Shaken Baby cases further

suggest a lack of impartiality..................................................................15

Argument & Authorities ............................................................................................................... 17

I. Because Judge Evans Did Not Comply with the Statutory Process to Be Eligible to Accept

Assignments, Judge Evans’ Order Setting Mr. Roberson’s Execution Date and Her Issuance of

an Execution Warrant Are Null and Void and Must Be Vacated. ............................................ 18

II. The Totality of the Circumstances Would Reasonably Prompt An Informed, Objective

Observer to Question Judge Evans’ Impartiality. ..................................................................... 21

A. The process whereby Judge Evans was assigned to this cause lacked transparency........ 22

B. Judge Evans’ personal relationships with numerous people involved in Mr. Roberson’s

case over the years adds to the appearance of a lack of impartiality..................................... 25

C. Arbitrary rulings in this and a markedly similar Shaken Baby case further suggest the

appearance of bias. ................................................................................................................ 26

III. Recusal Is Required. ..................................................................................................... 33

Conclusion & Prayer..................................................................................................................... 35

Certificate of Service .................................................................................................................... 37

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INTRODUCTION

Mr. Roberson is an indigent, disabled father, diagnosed with Autism Spectrum Disorder in

2018. He has maintained his innocence since first being wrongly accused of causing his daughter

Nikki’s death in 2002 based on a “Shaken Baby Syndrome” diagnosis. He has been fighting to be

heard from Texas’s death row since 2003. This case is truly a matter of life and death—with a

pending execution date of October 17, 2024. That date was set by Judge Evans, a retired judge

sitting by assignment, without first permitting Mr. Roberson a hearing. See EX1-EX3. Thereafter,

Judge Evans again denied Mr. Roberson a hearing on his Motion to Withdraw Execution Date even

after he provided support for the fact that hearings on such motions are routine and that such

motions are generally granted under the circumstances that were presented to her. See EX4-EX7.

Now it has come to light that Judge Evans failed to follow the required statutory procedure

for a retired judge to become eligible to accept assignments to preside over cases in lieu of elected

judges. Because this is a jurisdictional issue that cannot be remedied retroactively, all actions that

Judge Evans has taken in this matter are null and void. She cannot and should not serve as the

presiding judge.

Moreover, the following factors, viewed in the totality, suggest the appearance of a lack of

impartiality, a statutory basis for recusal:

• the opaque process whereby Judge Evans—who presided over Mr. Roberson’s previous

habeas proceeding and recommended that he be denied a new trial—was assigned to this

matter even before any case was pending;

• the deep personal relationships Judge Evans has with numerous individuals who have been

involved in Mr. Roberson’s case over the years, including an attorney (now judge) who

originally prosecuted the case, the judge who terminated Mr. Roberson’s parental rights,

and the current Anderson County District Attorney who opposed habeas relief and sought

the pending execution date; and

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• arbitrary rulings in Mr. Roberson’s previous habeas proceeding and in a markedly similar

“Shaken Baby” case involving many of the same people, to which Judge Evans was also

purportedly assigned, after her retirement, when she had no authority to act as a judicial

officer.

The totality of the circumstances, including the seriousness of this case, require prompt

reassignment to an impartial judge who can vacate the unlawfully entered execution warrant and

related orders, which Judge Evans signed absent lawful authority.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

I. Background of Mr. Roberson’s Case

Mr. Roberson is from Palestine in Anderson County, Texas. He moved back there after

learning he had a daughter, Nikki, who had been removed from her mother by CPS at birth. After

he established his paternity, Nikki’s maternal grandparents agreed that he should be awarded

custody of Nikki, and Judge Jerry Calhoon entered an Agreed Order to that effect. This occurred

in November 2001, soon after Nikki’s second birthday, just two months before her tragic death.

EX8; EX9.

Nikki was chronically ill much of her short life and severely ill during the last week before

her collapse on January 31, 2002. Mr. Roberson took Nikki to the Emergency Room in the

Palestine Regional Medical Center on January 28th and then to her pediatrician the next day,

January 29th, who recorded her temperature as 104.5 degrees. These two different doctors on two

consecutive days prescribed Phenergan—first in suppository form and then in cough syrup along

with codeine, a narcotic. These medications are no longer recommended for children Nikki’s age

and in her condition.

2 When the Phenergan and codeine were prescribed, Nikki was diagnosed

2 Phenergan now contains FDA “black box warnings” against prescribing it to children Nikki’s

age and in her condition, because it can suppress breathing and cause death, as explained in a new

expert report from a medical toxicologist. See EX10.