An administrative judge denied a motion by the defense Tuesday asking that state District Judge Stephen Bristow recuse himself from the capital murder trial of a convicted child killer.
Defense attorneys said the judge permitted testimony that had previously been ruled inadmissible.
Gabriel Armandariz, 32, was convicted of capital murder Feb. 27. He strangled his two sons, 8-month-old Luke and 2-year-old Gatlin, on April 13, 2011, at his home in Graham, northwest of Fort Worth, then hid the bodies under a house he shared with relatives.
The trial is now in the punishment phase. Armandariz faces the death penalty or life without parole.
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Terri Moore and Joetta Keene, who are representing Armandariz, argued that Bristow, who is visiting from his Young County court, should not have allowed testimony that accused Armandariz of sexually assaulting a cousin when the boy was 7.
Keene and prosecutors Lisa Tanner and Tom Cloud testified during the motion hearing.
Tanner said that she informed Bristow about an hour in advance that she planned to call witnesses to testify about the sexual assault allegation and that case law trumped the initial inadmissibility ruling.
Administrative Judge David Evans said he could find no evidence that the judge acted on anything except what was on the record.
But Evans also issued a warning for the prosecutor: “It came dangerously close. It probably would have been just as easy to tell Ms. Keene at the same time you told the judge.”
The cousin, now 18, testified that Armandariz held him down by the neck and sexually assaulted him when he was in the back bedroom of his mother’s home. Armandariz’s attorneys objected, saying their client was never arrested, indicted or tried on the allegation.
Moore and Keene asked for the recusal, saying the judge had previously ruled the testimony inadmissible because the defense did not have the opportunity to investigate the sexual assault claims. The motion to recuse also alleged improper communication between Bristow and prosecutors.
“I felt set up,” Moore said.
Tanner asserted that the defense had opened the door to the testimony by presenting evidence that Armandariz had been a good and caring father.
Mitch Mitchell, 817-390-7752