Hill, Albert G.

PD-0019-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/24/2015 10:50:13 PM
Accepted 7/27/2015 8:17:47 AM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK

PD-0019-15, PD-0020-15
PD-0021-15, PD-0022-15
July 27, 2015

State of Texas, Appellant,
v.
Albert G. Hill, III, Appellee.
On Discretionary Review from
Nos. 05-13-00421-CR, 05-13-00423-CR
05-13-00424-CR, and 05-13-00425-CR
Fifth Court of Appeals, Dallas

On Appeal from Nos. F11-00180, F11-00182,
F11-00183, and F11-00191
204th District Court, Dallas County

Appellee’s Opening Brief

Michael Mowla L.T. (Butch) Bradt George R. Milner III
445 E. FM 1382 No. 3-718 14015 S.W. Freeway Ste. 4 2828 N. Harwood St. Suite 1950
Cedar Hill, Texas 75104 Sugar Land, Texas 77478 Dallas, Texas 75201
Phone: 972-795-2401 Phone: 281-201-0700 Phone: 214-651-1121
Fax: 972-692-6636 Fax: 281-201-1202 Fax: 214-953-1366
michael@mowlalaw.com ltbradt@flash.net ItsRainingII@aol.com
Texas Bar No. 24048680 Texas Bar No. 0284160 Texas Bar No. 00784611
Attorney for Appellee Attorney for Appellee Attorney for Appellee
and Lead Counsel

ORAL ARGUMENT GRANTED
I. Identity of Parties, Counsel, and Judges

Albert G. Hill, III, Appellee

Michael Mowla, attorney for Appellee at trial, on appeal, and on discretionary
review (lead)

George R. Milner III, attorney for Appellee at trial, on appeal, and on discretionary
review

Leonard Thomas (Butch) Bradt, attorney for Appellee on discretionary review

Marshall A. Camp, attorney for Appellee at trial and appeal pro hac vice

John C. Hueston, attorney for Appellee at trial and appeal pro hac vice

Alison L. Plessman, attorney for Appellee at trial and appeal pro hac vice

State of Texas, Appellant

Charles “Chad” Baruch, attorney pro tem

Susan Hawk, Dallas County District Attorney (office recused on own motion)

Lori Ordiway, Dallas County Assistant District Attorney, attorney for State of Texas

Michael Casillas, Dallas County Assistant District Attorney, attorney for State of
Texas

Lisa Smith, Dallas County Assistant District Attorney, attorney for State of Texas

Craig Watkins, (former) Dallas County District Attorney, attorney for State of Texas

Russell Wilson, (former) Dallas County Assistant District Attorney, attorney for
State of Texas

Heath Harris, (former) Dallas County Assistant District Attorney, attorney for State
of Texas

2
Judge Lena Levario, Presiding Judge of the 204th Judicial District Court (at the time
of trial)

Judge Tammy Kemp, Presiding Judge of the 204th Judicial District Court (present)

Justice David Bridges (Dissenting), Fifth Court of Appeals

Justice Michael O’Neill, Fifth Court of Appeals

Justice Ada Brown, Fifth Court of Appeals

3
II. Table of Contents

I.  Identity of Parties, Counsel, and Judges ..........................................................2 
II.  Table of Contents .............................................................................................4 
III.  Table of Authorities .........................................................................................8 
IV.  Appendix Index .............................................................................................11 
V.  Statement of the Case and Procedural History ..............................................12 
VI.  Statement Regarding Oral Argument ............................................................18 
VII.  Issues Presented .............................................................................................19 
VIII.  Facts ...............................................................................................................20 
1.  Watkins’s “investigation” of Appellee ..........................................................20 
2.  Fee dispute between Blue and Appellee ........................................................21 
3.  Trustee for Hill Jr.’s trust contacts Martin ....................................................22 
4.  Communications between Blue and Watkins during the lead-up
to the indictments ...........................................................................................22 
5.  On March 31, 2011, two weeks before beginning of the fee
dispute trial between Appellee and Blue, the indictments are
returned against Appellee ..............................................................................26 
6.  On April 11, 2011, Blue makes another “contribution” to
Watkins ..........................................................................................................26 
7.  Fee dispute trial between Appellee and Blue ................................................26 
8.  Appellee files the Motion to Dismiss and proffers 45 exhibits and
416 pages of evidence in support of the motion. ...........................................27 
9.  The lead-up to the hearing held on February 14, 2013 .................................31 
10. Hearing on February 14, 2013 – trial court rules that Appellee
made a prima facie showing on each of his claims and was
entitled to an evidentiary hearing concerning whether Watkins
was influenced by Blue with respect to the decision to approve
the indictments of Appellee and his wife ......................................................32 
11. Between March 1 and 6, 2013, the State files for mandamus in
the Court of Appeals and this Court, all of which are denied .......................33 
12. Hearing on March 7, 2013 – trial court draws an adverse
inference and dismisses the indictments against Appellee ............................34 
4
 13. The trial court’s findings and dismissal of the indictments against
Appellee .........................................................................................................38 
IX.  Summary of the Arguments ...........................................................................40 
X.  Argument .......................................................................................................42 
1. Issue One: To establish a prima facie case of selective
prosecution in violation of the Fifth and Fourteenth
Amendments, and to obtain a hearing under the “presumption of
prosecutorial vindictiveness” method, a defendant must provide
“some evidence” that shows: (1) the government singled out the
defendant for prosecution and has not proceeded against others
similarly situated based on the type of conduct for which the
defendant is charged; and (2) the government’s discriminatory
selection is invidious. Once the defendant makes this showing,
the burden shifts to the State to justify the discriminatory
treatment.
Appellee asks this Court to clarify what constitutes “some
evidence” and hold that so long as a defendant attaches a proffer
of evidence to a motion to dismiss due to prosecutorial
misconduct, the trial court in its discretion determines to present
a colorable claim of a constitutional violation, the defendant has
attached “some evidence,” and the trial court should have the
discretion to conduct a hearing on the motion to dismiss.
Appellee also asks this Court to find that Appellee not only
attached “some evidence” showing a constitutional violation, but
in fact attached “exceptionally clear evidence.”
Finally, Appellee asks this Court to find that the Court of Appeals
erred when it: (1) sustained the State’s second issue and
concluded that Appellee “did not make the proper showing
sufficient to establish a prima facie case...” of the fact that the
former elected district attorney of Dallas County engaged in
prosecutorial misconduct by allowing himself to be corruptly
influenced by a political ally in return for indicting Appellee; (2)
found that the trial court erred in conducting a hearing on
Appellee’s motion to dismiss based upon prosecutorial
misconduct; (3) vacated the trial court’s Order Granting Motion
to Dismiss; and (4) remanded the case to the trial court to
reinstate the indictments against Appellee. ...................................................42 

5
i.  Introduction – so long as the prosecution is not for an
improper purpose, prosecutors have the discretion to
prosecute ..............................................................................................42 
ii.  To raise a “presumption of prosecutorial vindictiveness,”
a defendant must present evidence of circumstances that
pose a “realistic likelihood” of misconduct. When the
defendant does so, the defendant makes a prima facie case.
The burden then shifts to the State to rebut this
presumption or face dismissal of the charges .....................................49 
iii.  The majority opinion’s characterization of the evidence
attached to the Motion to Dismiss is inaccurate. Nearly all
of the evidence proffered by Appellee and attached to the
Motion to Dismiss: (1) would be admissible in a hearing
without further authentication; and (2) constitutes
“exceptionally clear” evidence that the decision to
prosecute was for an improper purpose, exceeding the
standard that the trial court must, in its discretion, find
“some evidence” of a colorable claim of a constitutional
violation ...............................................................................................51 
iv.  “Some evidence” means that a defendant must attach to
the motion to dismiss evidence that establishes that the
defendant has a colorable claim of a constitutional
violation. This allows the trial court to exercise its
discretion in ordering the hearing. Once a hearing is held,
the defendant must show by “exceptionally clear
evidence” that the prosecution was initiated for an
improper reason. ..................................................................................58 
v.  No appellate court in Texas has ever ruled that a trial court
erred in conducting a hearing on a defendant’s motion to
dismiss charges on the basis they violated his
constitutional rights. ............................................................................67 
vi.  Texas public policy benefits if trial courts are allowed
discretion to determine whether a defendant has made the
threshold showing of a colorable claim that the defendant
is entitled to a hearing .........................................................................68 
vii.  Most other courts have adopted standards substantially
similar to the standard that Appellee argues this Court
should adopt: that so long as a defendant attaches a proffer
6
 of evidence to a motion to dismiss due to prosecutorial
misconduct that the trial court in its discretion determines
to present a colorable claim of a constitutional violation,
the defendant has attached “some evidence,” and the trial
court should have the discretion to conduct a hearing on
the motion to dismiss...........................................................................71 
viii.  This Court should affirm the trial court’s order dismissing
the indictments because the evidence obtained during the
March 7, 2013 hearing overwhelmingly proved that: (1)
Watkins singled out Appellee for prosecution and has not
proceeded against others similarly situated based on the
type of conduct for which Appellee was charged; and (2)
Watkins’s discriminatory selection was invidious and
resulted from allowing himself to be improperly
influenced by Blue...............................................................................76 
ix.  Conclusion ...........................................................................................76 
XI.  Conclusion and Prayer ...................................................................................78 
XII.  Certificate of Service .....................................................................................80 
XIII.  Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................80 

7
III. Table of Authorities

Cases 
Attorney General of United States v. Irish People, Inc., 684 F.2d 928
(D.C. Cir. 1982), cert. denied, 459 U.S. 1172 (1983) ...................................75
Bordenkircher v. Hayes, 434 U.S. 357 (1978).........................................................43
Brady v. Maryland, 373 U.S. 83 (1963) ..................................................................68
Brown v. Board of Education, 347 U.S. 483 (1954)................................................46
Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ................................. 55, 56
County v. State, 812 S.W.2d 303 (Tex. Crim. App. 1989) ......................................62
Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988) .....................................63
Dunlop v. Bachowski, 421 U.S. 560 (1975).............................................................44
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979) ............................................63
Fox v. State, 418 S.W.3d 365 (Tex. App. Texarkana 2012) ....................................53
Franks v. Delaware, 438 U.S. 154 (1978) ...............................................................55
Galvan v. State, 988 S.W.2d 291 (Tex. App. Texarkana 1999) ..............................68
Garcia v. State, 172 S.W.3d 270 (Tex. App. El Paso 2005) ................ 51, 61, 62, 68
Gawlik v. State, 608 S.W.2d 671 (Tex. Crim. App. 1980) ......................................43
Gregg v. Georgia, 428 U.S. 153 (1976) ..................................................................62
Harm v. State, 183 S.W.3d 403 (Tex. Crim. App. 2006) ........................................69
Harris v. State, 227 S.W.3d 83 (Tex. Crim. App. 2007) .........................................56
Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................44
Hinojosa v. State, 4 S.W.3d 240 (Tex. Crim. App. 1999) .......................................56
Jones v. White, 992 F.2d 1548 (11th Cir. 1993), cert. denied, 481 U.S.
1055 (1993) ....................................................................................................74
McCleskey v. Kemp, 481 U.S. 279 (1987) ...............................................................63
Moore v. Illinois, 408 U.S. 786 (1972) ....................................................................69
Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) .......................................55
Neal v. State, 150 S.W.3d 169 (Tex. Code Crim. App. 2004).................................49
Nelloms v. State, 63 S.W.3d 887 (Tex. App. Fort Worth 2001, pet. ref.)
.......................................................................................................................51
8
Oyler v. Boles, 368 U.S. 448 (1962) ........................................................................44
Plessy v. Ferguson, 163 U.S. 537 (1896) ................................................................45
Ramsey v. State, 579 S.W.2d 920 (Tex. Crim. App. 1979) .............................. 56, 57
Rodriguez v. State, 283 S.W.3d 465 (Tex. App. San Antonio 2009) ......................68
State v. Dinur, 383 S.W.3d 695 (Tex. App. Houston [14th Dist.] 2012,
no pet.) ...........................................................................................................68
State v. Hill, 05-13-00421-CR-180, 05-13-00423-CR-180, 05-13-
00424-CR-180, and 05-13-00425-CR-180, 2014 Tex. App.
LEXIS 13835 (Tex. App. Dallas, December 29, 2014) (Bridges,
J. dissenting) (unpublished opinion)...................................................... passim
Strickler v. Green, 527 U.S. 263 (1999) ..................................................................69
United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995) ......................... 59, 60, 74
United States v. Armstrong, 517 U.S. 456 (1996) ...................................... 49, 55, 61
United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) ..........................................72
United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926) .............................43
United States v. Fares, 978 F.2d 52 (2d Cir. 1992) .................................................71
United States v. Goodwin, 457 U.S. 368 (1982) ......................................... 49, 58, 70
United States v. Goulding, 26 F.3d 656 (7th Cir. 1994), cert.
denied, 513 U.S. 1061 (1994) ........................................................................73
United States v. Greenwood, 796 F.2d 49 (4th Cir. 1986) ......................................73
United States v. Heidecke, 900 F.2d 1155 (7th Cir. 1990) ......................................74
United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978)........................................75
United States v. Mezzanatto, 513 U.S. 196 (1995) ..................................................50
United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) ..................................74
United States v. Parham, 16 F.3d 844 (8th Cir. 1993) ............................................75
United States v. Peete, 919 F.2d 1168 (6th Cir. 1990) ............................................73
United States v. Penagaricano-Soler, 911 F.2d 833 (1st Cir. 1990) .......................71
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .....................................73
United States v. Torquato, 602 F.2d 564 (3d Cir. 1979), cert.
denied, 444 U.S. 941 (1979) ..........................................................................72
Wayte v. United States, 470 U.S. 598 (1985) ..........................................................69
9
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ........................................................ 45, 46
Statutes 
28 U.S.C. § 547 (2015) ............................................................................................43
Tex. Code Crim. Proc. Art. 2.01 (2015) ..................................................................43
Tex. Code Crim. Proc. Art. 39.14 (2015) ................................................................68
Tex. Loc. Gov. Code § 201.003(8) (2013) ..............................................................53
Tex. Pen. Code § 37.01(2)(A) (2015) ......................................................................53
Other Authorities 
Black’s Law Dictionary, 240 (7th ed. 1999) ...........................................................63
Concise Oxford American Thesaurus, 138, 292 (2006) ..........................................63
Rules 
Tex. Rule App. Proc. 66.3 (2015) ............................................................................78
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................80
Tex. Rule App. Proc. 68.4 (2015) ............................................................................18
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................80
Tex. Rule App. Proc. 9.5 (2015) ..............................................................................80
Tex. Rule Evid. 801 (2013)......................................................................................53
Tex. Rule Evid. 803 (2013)......................................................................................53
Tex. Rule Evid. 804 (2013)......................................................................................53
Constitutional Provisions 
U.S. Const. Art. II, § 3 .............................................................................................43

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IV. Appendix Index

Appendix 1: State v. Hill, 05-13-00421-CR-180, 05-13-00423-CR-180, 05-13-
00424-CR-180, and 05-13-00425-CR-180, 2014 Tex. App. LEXIS 13835 (Tex.
App. Dallas, December 29, 2014) (Bridges, J. dissenting) (unpublished opinion)

11
To The Honorable Judges of the Court of Criminal Appeals:

Appellee Albert G. Hill, III respectfully submits this opening brief:

V. Statement of the Case and Procedural History

Appellee asks that this Court review the judgment and opinion of the Fifth

Court of Appeals in State v. Hill, 05-13-00421-CR-180, 05-13-00423-CR-180, 05-

13-00424-CR-180, and 05-13-00425-CR-180, 2014 Tex. App. LEXIS 13835 (Tex.

App. Dallas, December 29, 2014) (Bridges, J. dissenting) (unpublished opinion).

(See Appendix 1). The issues presented in this case appear to be of first impression

in Texas. Appellee found no other case in which a defendant proffered “some

evidence” – much less “exceptionally clear evidence” as proffered in this case –

showing that in exchange for indicting the defendant, a prosecutor was improperly

influenced by a person to the extent that the defendant’s constitutional rights were

violated. Here, this person, who was at the time of indictment involved in civil

litigation with the defendant, improperly influenced the prosecutor. When that

person and the prosecutor refused to answer any questions at a hearing that the trial

court had the discretion to order, the trial court made an adverse inference, and

dismissed the indictments due to prosecutorial misconduct. But, the Court of

Appeals reversed the trial judge’s ruling on the basis that the defendant did not

proffer enough evidence to even warrant a hearing.

12
 The procedural history is as follows: on March 31, 2011, four indictments

were returned against Appellee, alleging violations of Texas Penal Code § 32.32,

False Statement to Obtain Credit: that on or about May 14, 2009, with the intent of

obtaining a loan of money, the aggregate value of which was $200,000.00 or more,

Appellee made certain materially false and misleading written statements to

OmniAmerican Bank by: (1) claiming that he and his wife, Erin Hill, “were only

owners of real property located at 4433 Bordeaux, Highland Park, Dallas County,

Texas...” (F11-00180/05-13-00421-CR) (CR-180, 6, 427);1 (2) claiming that his

gross monthly income was $54,341.00 (F11-00182/05-13-00423-CR) (CR-180,

428); (3) executing certain documents “by deception” by creating and executing the

documents and by creating and confirming by words and conduct false impressions

of facts that were “likely to affect the judgment of OmniAmerican...” that Appellee

did not believe to be true (F11-00183/05-13-00423-CR) (CR-180, 429); and (4) that

his Inwood National Bank account contained $102,174.00 (F11-00191/05-13-

00424-CR) (CR-180, 430). See Tex. Pen. Code § 32.32 (2009).

After conducting his own investigation, Appellee uncovered compelling

circumstantial evidence that Lisa Blue, a Democratic Party operative and attorney –

1
The Clerk’s Record (three unsealed and two sealed volumes, three supplemental volumes, and a
supplemental sealed volume) is cited as “CR” followed by the last three digits of the cause number
for the three volumes (or “-Supp-Aug02”), followed by the page number. The Reporter’s Record
(five volumes) is cited as “RR” following by the volume number and page number, or the exhibit
number of the exhibits volume (RR5) followed by the “PDF” page number of RR5.

13
who at the time was involved in civil litigation against Appellee over a fee dispute –

corruptly influenced then-Dallas County District Attorney Craig Watkins

(“Watkins”),2 who in turn authorized obtaining the four indictments against

Appellee. Appellee filed a Motion to Quash and Dismiss the Indictment Due to

Prosecutorial Misconduct (“Motion to Dismiss”). (CR-180, 31-488). The Motion to

Dismiss alleged that Appellee’s constitutional rights to due process and equal

protection were violated due to Blue’s corruptly influencing Watkins, and as a result,

Appellee was: (1) selectively prosecuted; (2) vindictively prosecuted; and

(3) deprived of his right to a disinterested prosecutor. (CR-180, 32-67). At the time

that the indictments were returned against Appellee, Blue and Appellee were

embroiled in a fee dispute litigation before the United States District Court, Northern

District of Texas, in which Blue was seeking over $50 million. (RR2, 20-21; CR-

180, 32-34).

Based on the evidenced proffered by Appellee that was attached to the Motion

to Dismiss, on February 14, 2013, the trial court found that Appellee was entitled to

a hearing. (RR2, 28). The trial court required Appellee to first question Blue. (RR2,

28-30). After Blue invoked her Fifth Amendment privilege against self-

2
On November 4, 2014, Watkins was the only democrat to lose a county-wide election in Dallas
County. See Susan Hawk ousts Craig Watkins in heated race for Dallas County DA,
http://www.dallasnews.com/news/politics/local-politics/20141105-susan-hawk-ousts-craig-
watkins-in-heated-race-for-dallas-county-da.ece, last accessed on July 17, 2015.
14
incrimination, which prevented Appellee from obtaining the information by other

means, Appellee was permitted to call Watkins as a witness. (RR2, 47-49). The

trial court ordered an evidentiary hearing on the limited question of Blue’s influence

on Watkins’s decision to pursue indictments against Appellee, so that the scope of

Appellee’s questioning of Watkins would be limited to Watkins’s conversations with

Blue. (RR2, 27-28, 47-49). The questioning of Watkins did not take place during

the February 14, 2013 hearing because Watkins claimed through counsel that

although he was in the courthouse, he suddenly became “ill” and thus could not

testify. (RR2, 54-64).

Arguing that Appellee was not entitled to an evidentiary hearing, the State

sought mandamus relief and a stay of the hearing from the Fifth Court of Appeals of

Dallas and from this Court.3 The State’s petitions for writs of mandamus were

denied. On March 7, 2013, the evidentiary hearing was held. (RR3).

During the evidentiary hearing on March 7, 2013, the State admitted that the

home-equity loan (which was the subject of the indictments) was never in arrears,

had been fully repaid before the commencement of any criminal investigation, and

that the indictments against Appellee are “unprecedented.” (RR4, 49, 126, 129,

3
Appellee asks this Court to take judicial notice of the fact that on March 1, 2013, the State filed
for mandamus relief in the Fifth Court of Appeals in Cause Numbers 05-13-00298-CV, 05-13-
00299-CV, 05-13-00300-CV, 05-13-00301-CV, and 05-13-00302-CV; and again on March 6,
2013 in this Court in Cause Number WR-79,189-01.
15
155). Watkins made a blanket assertion of privilege and work product protection,

and refused to answer any questions. (RR4, 15-17). The trial court overruled

Watkins’s objections, and further found that the State had waived privilege with

respect to the issues before the court. (RR4, 16-17).

After Watkins refused to testify, Appellee examined several assistant district

attorneys. (RR4, 34-189). After this testimony, the trial court gave Watkins another

opportunity to testify, and he again refused. (RR4, 195).

The trial court found that Watkins’s refusal to testify denied Appellee “his

right to have a meaningful hearing” on his Motion to Dismiss. (RR4, 219). The trial

court also found that the State failed to rebut Appellee’s prima facie showing of

prosecutorial misconduct. (RR4, 219).

On March 7, 2013, the 204th District Court dismissed with prejudice (“Order

Granting Motion to Dismiss”) the four indictments against Appellee under cause

numbers F11-00180, F11-00182, F11-00183, and F11-00191. (RR4, 219; CR-180,

1100; CR-182, 978; CR-183, 977; CR-191, 894).

The State appealed the Order Granting Motion to Dismiss to the Court of

Appeals. The State raised four issues. The second issue raised by the State was

“Whether the trial court abused its discretion by granting Appellee an evidentiary

hearing—and then dismissing the indictments—where the facts he alleged failed to

establish any constitutional violation.” See Hill, 2014 Tex. App. LEXIS 13835.

16
 On December 29, 2014, the Court of Appeals: (1) sustained the State’s second

issue and concluded that Appellee “did not make the proper showing sufficient to

establish a prima facie case...” of the fact that the former elected district attorney of

Dallas County engaged in prosecutorial misconduct by allowing himself to be

corruptly influenced by a political ally in return for indicting Appellee; (2) found

that the trial court erred in conducting a hearing on Appellee’s motion to dismiss

based upon prosecutorial misconduct; (3) vacated the trial court’s March 7, 2013

order granting Appellee’s motion to dismiss; and (4) remanded the case to the trial

court to reinstate the indictments against Appellee. Hill, id. at *36-38.

On February 23, 2015, Appellee filed a petition for discretionary review,

which was granted on June 10, 2015. Appellee now presents the following Opening

Brief.

17
VI. Statement Regarding Oral Argument

Oral argument has been allowed, and Appellee requests oral argument. See

Tex. Rule App. Proc. 68.4(c) (2015). As explained in the petition for discretionary

review, and provided in greater detail below, the issues presented in this petition

may be issues of first impression. As a result, Appellee believes that this Court’s

decisional process will be significantly aided by oral argument.

18
VII. Issues Presented

Issue One: To establish a prima facie case of selective prosecution in violation of
the Fifth and Fourteenth Amendments, and to obtain a hearing under the
“presumption of prosecutorial vindictiveness” method, a defendant must provide
“some evidence” that shows: (1) the government singled out the defendant for
prosecution and has not proceeded against others similarly situated based on the type
of conduct for which the defendant is charged; and (2) the government’s
discriminatory selection is invidious. Once the defendant makes this showing, the
burden shifts to the State to justify the discriminatory treatment.

Appellee asks this Court to clarify what constitutes “some evidence” and hold that
so long as a defendant attaches a proffer of evidence to a motion to dismiss due to
prosecutorial misconduct, the trial court in its discretion determines to present a
colorable claim of a constitutional violation, the defendant has attached “some
evidence,” and the trial court should have the discretion to conduct a hearing on the
motion to dismiss. Appellee also asks this Court to find that Appellee not only
attached “some evidence” showing a constitutional violation, but in fact attached
“exceptionally clear evidence.”

Finally, Appellee asks this Court to find that the Court of Appeals erred when it: (1)
sustained the State’s second issue and concluded that Appellee “did not make the
proper showing sufficient to establish a prima facie case...” of the fact that the former
elected district attorney of Dallas County engaged in prosecutorial misconduct by
allowing himself to be corruptly influenced by a political ally in return for indicting
Appellee; (2) found that the trial court erred in conducting a hearing on Appellee’s
motion to dismiss based upon prosecutorial misconduct; (3) vacated the trial court’s
Order Granting Motion to Dismiss; and (4) remanded the case to the trial court to
reinstate the indictments against Appellee.

19
VIII. Facts

1. Watkins’s “investigation” of Appellee
On February 18, 2010, in a civil case in which Appellee and his father (Hill

Jr.) were opposing parties, a United States district judge signed an order finding that

Hill Jr.: (1) submitted summary judgment materials in bad faith and with the intent

of committing fraud on the Court, and (2) lied under oath. (RR5, DX-1, 100). The

federal judge also found that Hill Jr.’s attorney had “far exceeded the bounds of

advocacy, permissible or otherwise.” (RR5, DF-PT-3, 100).

Days later, on February 22, 2010, alleging that Appellee had committed

mortgage fraud in connection with a home equity loan he had obtained from

OmniAmerican, Hill Jr.’s attorney submitted a written complaint to Donna

Strittmatter, head of the Specialized Crime Division of the Dallas County District

Attorney’s Office. (RR4, 75-76; RR5, SX-1, 8-66). Hill Jr. alleged that Appellee

misrepresented his ownership interest in his primary residence that was used as

collateral for the loan because at the time, the residence had been 80% owned by a

trust of which both Appellee and Hill Jr. are beneficiaries. (RR4, 87-88; RR5, SX-

1, 8). Strittmatter and assistant district attorney Stephanie Martin obtained

permission to conduct an investigation of this allegation from First Assistant District

Attorney Terri Moore. (RR4, 44-45).

Blue claims that in May 2010, while she was representing Appellee, in

response to a story in D Magazine suggesting that the District Attorney’s Office was
20
investigating Appellee and his wife concerning the loan from OmniAmerican, Blue

met with Moore. (RR4, 46-47; CR-180, 854-855; CR-182, 178; CR-183, 178; CR-

191, 177). In an effort to persuade the District Attorney’s Office to abandon its

investigation of Appellee, Blue presented Moore with a copy of the federal court

order that found that Hill Jr. committed perjury. (RR4, 46-47; RR5, DX-1, 97-103.

Moore did not confirm or deny whether the office was investigating Appellee. (RR4,

47:11–13). However, after meeting with Blue, Moore provided Martin and

Strittmatter a copy of the federal court order and told them that Hill Jr. could not be

used as a witness in the State’s case. (RR4, 48).

2. Fee dispute between Blue and Appellee
On July 7, 2010, after: (1) Appellee rejected a $30 million fee for Blue and

two other attorneys associated with her (Aldous and Malouf), and (2) United States

Magistrate Judge Paul Stickney rejected the fee recommendation, Blue filed a

motion to withdraw from representing Appellee in the federal civil case, and became

Appellee’s adversary in a civil fee dispute. (CR-180, 678-682; CR-182, 586-587;

CR-183, 585-586).

Shortly after the global settlement agreement and final judgment were entered

in the federal civil proceeding between Appellee and Hill Jr., on December 7, 2010,

Blue and her associated attorneys filed a complaint in federal court against Appellee

21
and his wife, seeking to recover over $50 million on the settlement. (RR5, DX-1,

117-123, 139, 408).

3. Trustee for Hill Jr.’s trust contacts Martin
On September 8, 2010, about seven months after Hill Jr.’s attorney submitted

the complaint to the District Attorney’s Office, the trustee for the Hill Jr. trust,

contacted Martin by phone and in writing, urging Martin to pursue indictments

against Appellee and his wife. (RR4, 145-147). Martin’s handwritten notes reflect

that she told Mr. Pickett that OmniAmerican “...really isn’t interested in

prosecuting,” and that she “didn’t see how [she] could prove his criminal case,”

especially since the “victim” (OmniAmerican) suffered no harm and did not want to

prosecute. (RR4, 183-185, 201; RR5, DX-8; 1084). After her discussion with

Pickett, Moore directed Martin to move forward with the investigation. (RR4, 186-

187, 191; RR5, DX-8, 1084).

4. Communications between Blue and Watkins during the lead-up to
the indictments
On January 7, 2011, about one month after filing the $50-million-plus fee

dispute suit against Appellee, Blue met with Watkins. (RR5, DX-4, 1075-1076).

On or about January 12, 2011, Martin conducted a “pitch session” regarding

the investigation against Appellee and his wife, to determine whether the State

should seek indictments against Appellee and his wife. (RR4, 35-36, 120-125, 166).

Watkins, Moore, and Strittmatter all attended the pitch session, during which

22
Watkins asked a number of questions, gave his opinion regarding the real estate title

issues at the center of the allegations against Appellee and his wife, and even

suggested additional charges Martin should consider bringing against Appellee and

his wife. (RR4, 163:3–7, 163:15–165:19).

A few days later, on January 15, 2011, Blue again met with Watkins. (RR5,

DX-4, 1025).

Two days later, on January 17, 2011, Blue and associated attorneys entered

into a written agreement with Appellee and his wife to litigate the fee dispute in

federal court in early April 2011. (RR5, DX-1, 141-144).

On January 20, 2011, three days later, Blue met Watkins for dinner, which was

paid for by Blue. (RR5, DX-3; DX-4, 1019, 1077-1078).

The next morning, on January 21, 2011, Blue called Watkins at 10:51 a.m.

(RR5, DX-1, 386, 426). Watkins returned Blue’s call at 10:54 a.m., which was

answered by Blue in the presence of associated attorney Malouf. (RR5, DX-1, 395-

397, 426). Under oath, Blue admitted that during this call, Watkins raised the topic

of indicting Appellee and his wife, saying “there could be an indictment or are you

still interested in the indictments,” and Blue claims to have told Watkins that she

could not talk to him about Appellee and his wife. (RR5, DX-1, 171-174). However,

Blue’s telephone records show she called Watkins back at 11:13 a.m. on the same

day, and they had another conversation lasting six minutes. (RR5, 426).

23
 Blue called Watkins several more times between March 3 and 10, 2011. (RR5,

DX-1, 361-364, 426). Blue also met with Watkins on March 3, 2011 to take

publicity photos in connection with a $100,000 donation Blue made to SMU Law

School in 2010 in Watkins’s honor. (RR5, DX-3, DX-4, 995, 1025).

Despite the fact that Watkins was not running for office, and in fact in

November 2010 had been reelected and would not face another election until 2014,

on March 9, 2011, Blue held a campaign fundraiser for Watkins at her home. (RR5,

DX-4, 1031-1047, 1079-1080). Blue’s invitations encouraged the invitees to donate

to Watkins because it was going to be a “tight race.” (RR5, DX-4, 1031-1047, 1079-

1080). Blue personally contributed $5,000 to Watkins, and raised thousands of

dollars from other donors. (RR5, DX-2, 872-890).

On March 22 and 24, 2011, Blue contacted Watkins while attending

depositions, including her own, in connection with the fee dispute with Appellee.

(RR5, DX-1, 279-280, 301-302, DX-4, 157, 368-369, 377, 390-391, 426, 1025).

Without question, Watkins had the ultimate authority to determine whether

Appellee and his wife would be indicted. (RR4, 43:10–14, 191:13–18). Watkins

was the final decision-maker, and the indictments would not have been presented to

the grand jury without his approval. (RR4, 166, 191).

Watkins approved the presentation of the case against Appellee and his wife

to the grand jury. (RR4, 163, 166). As a result, on March 29, 2011, about two weeks

24
before the fee trial between Appellee and Blue was set to begin, Martin presented

the case against Appellee and his wife to the grand jury. (RR4, 167; RR5, SX-4, 85-

88). That same night, Watkins sought to meet Blue for drinks. (RR5, DX-3, DX-4,

1012, 1025-1026). The following night, Watkins and Blue met for dinner at an

upscale restaurant in Dallas. (RR5, DX-3, DX-4, 1012, 1025-1026, 1081-1082).

Blue admitted in her deposition in the fee dispute litigation with Appellee that

Watkins called her and raised the subject of the indictments of Appellee and his wife

at least one time after the January 21, 2011 phone call. (RR5, DX-1, 175-176). Blue

placed numerous calls to numbers associated with Watkins, in addition to the call on

January 21, 2011. Blue’s phone records also indicate that she received one telephone

call from Watkins’s cell phone, on the evening of March 30, 2011 – the same night

she had dinner with Watkins at the Dallas restaurant, and one day after the cases

were presented to the grand jury. (RR5, DX-1, 344, 371-372, 386, 426-427)

In pleadings, the State claims that Watkins may have discussed the impending

indictments with Blue for the purposes of furthering the investigation. (CR-180,

625-626; RR2, 52-53). Although the State also took the position that Watkins had

no role in the investigation (RR3, 24; RR4, 214), Watkins continued to discuss

indictments with Blue after the charges had been presented to the grand jury. (RR5,

DX-1, 175-176).

25
 5. On March 31, 2011, two weeks before beginning of the fee dispute
trial between Appellee and Blue, the indictments are returned
against Appellee
About two weeks before the scheduled start of the fee dispute trial between

Appellee and Blue, the indictments against Appellee and his wife were returned on

March 31, 2011, and made public on April 4, 2011. (RR5, DX-1, 141, 146-147; CR-

180, 162; CR-182, 158; CR-183, 158; CR-191, 157).

6. On April 11, 2011, Blue makes another “contribution” to Watkins
Nine days after the indictments against Appellee were returned, and four days

after the indictments were made public, on April 8, 2011, Blue contacted Watkins’s

wife and Watkins’s assistant for the purpose of delivering an additional $1,000

“contribution” to Watkins. (RR5, DX-4, 1026). This “contribution” occurred five

months after Watkins had been reelected district attorney. Blue had no further

telephone communications with Watkins until the evening of April 27, 2011, when

Blue called Watkins shortly after she testified at trial in the fee dispute against

Appellee. (RR5, DX-1, 427).

7. Fee dispute trial between Appellee and Blue
After Appellee was indicted, he moved to stay his fee dispute trial against Blue

and her associated attorneys until the criminal charges were resolved. (RR5, DX-1,

406-411). Blue objected to the stay, and the district court granted a two-day

continuance. (RR5, DX-1, 410). The district court trial on Blue’s claims against

Appellee took place between April 20, 2011 and April 28, 2011. Due to the criminal

26
charges, Appellee and his wife exercised their Fifth Amendment privilege and did

not testify during the fee-dispute trial. (RR5, DX-1, 415-416, 421). On December

31, 2011, the federal district court awarded Blue and her associated attorneys

$21,942,961.00 in attorney’s fees, of which Blue was entitled to one-third, or

approximately $7.3 million. (RR5, DX-1, 106, 128).

8. Appellee files the Motion to Dismiss and proffers 45 exhibits and 416
pages of evidence in support of the motion.
On November 16, 2012, Appellee filed the Motion to Dismiss, asserting his

constitutional rights to Due Process and Equal Protection were violated because, due

to Blue’s bribing and influence of Watkins, Appellee was: (1) selectively prosecuted;

(2) vindictively prosecuted; and (3) deprived of his right to a disinterested

prosecutor. (CR-180, 31-488). Attached to the Motion to Dismiss and proffered to

the court were 45 exhibits and 416 pages of evidence. (CR-180, 72-488). The

proffered evidence includes the following (CR-180, 36-488):

 The case against Appellee was referred to the District Attorney’s Office by
the attorney for Hill Jr., who is an adverse party to Appellee in a federal
lawsuit.

 On February 18, 2010, a judge in the United States District Court, Northern
District of Texas, entered an order finding that Hill Jr.: (1) submitted summary
judgment materials in bad faith and with the intent of committing fraud on the
Court, and (2) lied under oath. The district court also found that Hill Jr.’s
attorney had “far exceeded the bounds of advocacy, permissible or
otherwise.”

27
 Four days later, on February 22, 2010, Hill Jr.’s father submitted a letter to
the district attorney’s office in which he accused Appellee and his wife of
mortgage fraud.

 A few months later, Tillotson, the partner of Hill Jr.’s attorney, donated nearly
$50,000 to Watkins’s reelection campaign. Neither Tillotson nor other
members of his firm previously contributed to Watkins’s campaigns, but the
contributions immediately made Tillotson one of Watkins’s largest individual
contributors.

 The mortgage fraud allegations were dubious at best because the home equity
loan obtained by Appellee was never in default, was repaid in full just a few
months after it was obtained, long before Watkins considered criminal charges
against Appellee and was fully secured at all times by Appellee’s undisputed
equity in the subject home.

 OmniAmerican did not suffer any loss, was never at risk of suffering any loss,
and never complained to authorities that Appellee did anything wrong or
committed any crime.

 The District Attorney’s Office did not interview witnesses such as the loan
officer or the mortgage broker, before indicting Appellee.

 Despite the District Attorney’s Office’s policy that defense attorneys would
be provided notice of grand jury proceedings and an opportunity to present
their case to the grand jury, no such notice was given to Appellee or his
attorneys. In fact, First Assistant Moore, who was a witness during the motion
to dismiss hearing, told Texas Lawyer that it was “all about fairness... This is
not a railroad we are running...this is a justice system.”

 Beginning in November 2009, Appellee was represented for about six months
in the federal litigation by a group of attorneys that included Blue. Blue
bragged to Appellee about her relationship with Watkins, and specifically told
Appellee about her personal friendship with Watkins, generous campaign
contributions Blue gave to Watkins, and pro bono representation of Watkins
as his personal lawyer.

28
 While representing Appellee, Blue even discussed ways she might use her
influence with Watkins to intimidate opposing counsel in the federal
litigation.

 Shortly after the federal litigation settled in May 2010, Blue and the two
attorneys with whom she represented Appellee demanded $50 million in
attorney’s fees for six months of work. When Appellee refused, Blue and the
other attorneys withdrew from representing him and filed suit against
Appellee for their fees.

 Two weeks before this fee dispute trial was set to begin in federal court on
April 18, 2011, Appellee learned that he had been indicted. As a result of the
indictments, Appellee was advised to not take the stand during the fee dispute
trial.

 The federal court entered a judgment against Appellee and his wife for more
than $34 million, which was later reduced to $21.9 million, with Blue
personally standing to receive one-third of the judgment, or about $7.3
million.

 Appellee then obtained discovery from Blue regarding her communications
with the District Attorney’s Office. During a deposition, Blue admitted that
Watkins had called her before the indictments were returned to attempt to
discuss potential charges against Appellee. Blue stated that Watkins told her
that “there could be an indictment or are you still interested in the
indictments,” or words to that effect.

 Through the discovery, it was revealed that a dramatic spike in
communications between Blue and Watkins occurred in the days and weeks
before the indictments were obtained. These communications included calls
between Blue and both Watkins’s office and cellphone numbers.

 On March 30, 2011, the day before indictments against Appellee were
presented to the grand jury, Blue and Watkins communicated seven times via
Watkins’s cellphone number.

 Campaign finance records reflect that on March 9, 2011, which was about
three weeks before the indictments were presented, the Watkins campaign
accepted a $5,000 donation from Blue. This was despite the fact that

29
 Watkins’s “reelection campaign” had ended months earlier (Watkins had been
reelected in November 2010).

 Around the same time, Blue solicited others who donated thousands more to
Watkins.

 About 18 months after Appellee was indicted, on October 12, 2012,
Appellee’s counsel met with assistant district attorney Deborah Smith, who
took over the cases against Appellee long after the indictment. Smith
described a “re-evaluation” of the cases, and said that she had already
determined that she would recommend dismissing certain charges against
both Appellee and his wife (who was also indicted). Smith also told
Appellee’s counsel that she was conducting “due diligence” interviews of
witnesses regarding the remaining charges, and would eventually make a
recommendation regarding those charges as well.

 Smith expressed significant concerns about the cases against Appellee and his
wife, made clear that she (Smith) had no role in obtaining the indictments,
further stated that the interviews of witnesses she was conducting should have
been conducted much earlier, and also stated that she would refuse to try the
case if her office decided to go forward on any of the charges. Smith conveyed
several reasons why the charges against Appellee were without merit. Smith
requested that certain information be put in a written submission for her to use
in connection with her recommendations.

 Smith “apologized” on behalf of the District Attorney’s Office.

 On October 19, 2012, Appellee’s counsel emailed the written submission to
Smith.

 Shortly after the meeting with Smith, the District Attorney’s Office filed a
motion to dismiss all charges against Appellee’s wife.

 On October 22, 2012, in response to the email from Appellee’s counsel, Smith
stated that even though she was in the middle of a “reevaluation” of the cases
against Appellee and his wife, which had already caused Smith to recommend
and obtain dismissals against Appellee’s wife, Smith had been removed from
the Hill case effective the previous Friday and was reassigned to a different
department.

30
 After considering Appellee’s Motion to Dismiss and the proffered evidence,

which included sworn deposition testimony from Blue and Malouf, telephone

records and emails produced by Blue, Watkins’s campaign finance records, and

other materials, the trial court set a hearing date of February 18, 2013 on the motion

(the first hearing ultimately took place on February 14, 2013). (CR-180, 501-502;

CR-182, 496; CR-183, 495; CR-191, 496).

9. The lead-up to the hearing held on February 14, 2013
On January 22, 2013, Appellee served subpoenas on Watkins and other

members of the District Attorney’s Office, seeking to compel testimony and the

production of documents in connection with the evidentiary hearing. (CR-180, 540-

546, 567-573). The subpoenas requested additional evidence of communications

between Watkins and Blue relating to Appellee and his wife. (CR-180, 545-46, 571-

573).

In response to the subpoenas, the State filed a series of motions to quash and

moved for a protective order, arguing that the State had a privilege under the work

product doctrine not to provide any of the information sought by Appellee’s

subpoenas. (CR-180, 523-573).

On February 12, 2013, Blue voluntarily filed an affidavit in which she testified

about certain communications with Watkins concerning the indictments. (CR-180,

853-856).

31
 10. Hearing on February 14, 2013 – trial court rules that Appellee made
a prima facie showing on each of his claims and was entitled to an
evidentiary hearing concerning whether Watkins was influenced by
Blue with respect to the decision to approve the indictments of
Appellee and his wife
On February 14, 2013, the trial court ruled that in the Motion to Dismiss and

the evidence proffered with the motion, Appellee made a prima facie showing on

each of his claims and was entitled to an evidentiary hearing concerning whether

Watkins was influenced by Blue with respect to the decision to approve the

indictments of Appellee and his wife. (RR2, 27-28). The trial court found that

Appellee was entitled to examine both Blue and Watkins about their discussions

with each other concerning the indictments. (RR2, 28-29, 41).

Then, counsel for Blue informed the trial court that Blue was being criminally

investigated on the issues raised in the Motion to Dismiss. (RR2, 6). Appellee was

directed by the trial court to call Blue to the witness stand. (RR2, 29-30). Although

Blue submitted the affidavit just two days earlier that addressed the topics on which

she was to be examined (CR-180, 853-856), Blue refused to testify after invoking

the Fifth Amendment. (CR-180, 852-856; RR2, 46-48). In response to the single

substantive question of: “[D]id you discuss potential indictments against Albert and

[Erin] Hill with [Watkins] in March of 2011?”, Blue invoked her privilege. (RR2,

48). Blue also refused to answer any other questions. (RR2, 48).

32
 Appellee called Watkins to the stand. (RR2, 49). Through an assistant district

attorney, the State announced that Watkins would not testify about his conversations

with Blue because such conversations were supposedly “work product.” (RR2, 51-

54, 56-58). On behalf of Watkins, the State also claimed law enforcement and

executive privileges. (CR-180, 554-558; RR2, 66). The trial court overruled these

objections.

Then the State claimed that although Watkins was in the building and in his

office, he was too ill to testify. (RR2, 66-67). In reliance on this representation, the

trial court granted the State a continuance, and rescheduled the hearing for March 7,

2013. (RR2, 71-72).

11. Between March 1 and 6, 2013, the State files for mandamus in the
Court of Appeals and this Court, all of which are denied
On March 1, 2013, the State filed a Petition For Writ of Mandamus And

Motion For Temporary Relief, asking the Court of Appeals to enjoin the trial court’s

scheduled hearing on the following grounds: (1) Watkins’s testimony was

privileged; and (2) Appellee was not entitled to an evidentiary hearing. (CR-180,

1163-1202; CR-182, 1042-1081; CR-183, 1041-1080; CR-191, 789-839).

On March 6, 2013, the day before the hearing was to take place, the Fifth

District Court of Appeals denied the State’s petition. (CR-191, 841).

On the same day, the State filed a Petition for Writ of Prohibition and Petition

for Writ of Mandamus and Motion for Temporary Stay in Proceedings to this Court.

33
(CR-180, 1215-1259; CR-191, 843-874, 876). This Court denied the State’s

petition.

On the morning of the hearing, March 7, 2013, the State made a third attempt

to stop the hearing, which also was rejected by this Court. (CR-191, 878-883, 885;

RR4, 25-26).

12. Hearing on March 7, 2013 – trial court draws an adverse inference
and dismisses the indictments against Appellee
At the beginning of the hearing on March 7, 2013, Blue’s counsel represented

to the trial court that based upon Blue’s Fifth Amendment rights, Blue would once

again refuse to testify in response to substantive questions. Blue was excused. (RR4,

7-8).

Appellee then called Watkins to testify. Watkins first was asked the following

question: “Mr. Watkins, before the indictments of Appellee and his wife were

handed down, you had at least one or more phone calls with Lisa Blue concerning

(Appellee and his wife), correct?” Watkins answered: “Based on the advice of my

counsel and of the advice of my staff with the District Attorney’s Office, I am

refusing to answer any questions that you may pose be—because of my right as an

attorney to have the privilege and to protect my work product.” (RR4, 15).

Then Watkins was asked: “You said to Blue, words to the effect of, ‘There

could be an indictment of Appellee, or both the Hills. Are you still interested in the

34
indictments?’ Correct, sir?” (RR4, 15). In response to this question, Watkins again

claimed attorney and work-product privileges. (RR4, 15).

The trial court overruled Watkins’s objections and directed him to answer

these questions. (RR4, 15). Watkins refused. (RR4, 15)

Appellee called to the witness stand Strittmatter and Martin, both of whom

were then employed by the District Attorney’s Office, and also Moore, who at the

time of the hearing was the former First Assistant. Strittmatter, Martin, and Moore

had already submitted sworn statements discussing the State’s investigation of

Appellee and his wife, and the decision to present the cases to the grand jury for

indictment. (CR-180, 773-778; CR-182, 682-686; CR-183, 681-685; CR-191, 782-

785; RR4, 12-13, 40).

It was revealed that the State’s “investigation” of Appellee and his wife relied

extensively on materials submitted by Hill Jr., who the State knew to have recently

committed perjury. (RR4, 103, 141-142). The State never issued grand jury

subpoenas to Hill Jr. or to his trust. (RR4, 103, 141-142). In fact, before seeking

indictments against Appellee and his wife, although Martin had spoken to Hill Jr.,

his attorney, and someone in the general counsel’s office at OmniAmerican, the State

never conducted interviews with the loan officer at OmniAmerican, the mortgage

broker who presented the application to OmniAmerican, the title company who

35
conducted the title search on the property at issue, Appellee, his wife, or counsel for

Appellee and his wife. (RR4, 94:5–96:4, 141:3–17, 156:16–57:6).

On October 12, 2012, counsel for Appellee met with assistant district attorney

Deborah Smith, to whom the case had then-been reassigned. (RR4, 216-218; CR-

180-Supp-Aug02, 92). During this meeting, Smith apologized for how the State

handled the cases against Appellee and his wife, indicated that she was conducting

“due diligence” interviews of witnesses, and stated that she would recommend

dismissing certain or all of the charges against both Appellee and his wife. Id. Later

that same day, the District Attorney’s Office moved to dismiss all charges against

Erin Hill (Appellee’s wife) “in the interest of justice.” Id.

Smith was soon removed from the case and reassigned to the animal cruelty

unit. Id. The indictments against Appellee were reassigned to Strittmatter. (CR-

180, 487; CR-182, 483; CR-183, 483; CR-191, 482).

The State also admitted that the charges against Appellee are “unprecedented.”

(RR4, 49-50, 126-129, 155). This stems from the fact that underlying these

indictments, the loan was funded, was paid as expected, was repaid in full, and there

was no complaint from OmniAmerican. Id. And, Appellee’s undisputed 20 percent

ownership interest in the property was sufficient to fully secure the entire of loan,

so not only was there no loss, there was never any risk of loss. (RR4, 88-89).

36
 Further, despite the fact that Martin’s handwritten notes reflect that she told

Pickett that OmniAmerican “...really isn’t interested in prosecuting,” and that she

“didn’t see how [she] could prove his criminal case,” especially since the “victim”

(OmniAmerican) suffered no harm and did not want to prosecute, (RR4, 183-185,

201; RR5, DX-8; 1084), Martin testified that she had always believed that the case

against Appellee was “strong” and certain to be indicted from the moment it was

first reported to the office by Hill Jr.’s attorney. (RR4, 149-150, 171). By adding

undated additional language that contradicted what she had written over two years

earlier, Martin also admitted during the hearing that she augmented her September

2010 notes in a manner that was calculated to make them appear more favorable to

the State. (RR4, 188-189).

Finally, although Moore testified that a defense attorney’s request to address

the grand jury is routinely accommodated by a prosecutor before seeking

indictments, and in this case, Blue in substance made such a request on behalf of

Appellee when she met with Moore in May 2010, neither Appellee nor his new

counsel were ever informed that criminal charges were being contemplated. (RR4,

53-56).

During the hearing, the State did not object to Appellee calling Strittmatter,

Martin, and Moore; in fact, the State previously invited Appellee to question Martin,

offering that Martin could “respond[ ] to the inquiries regarding the progression of

37
the—of the—investigation” and could fully “respond to [Appellee’s] allegations.”

(RR3, 15-16). The State invoked no work-product objections to any questions

during the course of the testimony of Strittmatter, Martin, and Moore. Nor did the

State attempt to limit the scope of the testimony of Strittmatter, Martin, and Moore

during the hearing. Strittmatter, Martin, and Moore were allowed to testify

extensively regarding the State’s investigation of Appellee and his wife, the “pitch

session,” Watkins’s involvement in the “pitch session,” and internal deliberations

regarding the State’s decision to indict Appellee and his wife. The State elicited

testimony concerning the events at issue and introduced into evidence internal work

product, including a PowerPoint presentation that was used by Martin at the “pitch

session.” (RR5, SX-2, 68-76).

The State also stipulated to the authenticity and admissibility of nearly all of

the evidence attached to Appellee’s Motion, including the sworn deposition

testimony, Blue’s phone records and emails, and Watkins’s campaign finance

reports. (RR4, 29-31).

13. The trial court’s findings and dismissal of the indictments against
Appellee
The trial court did not put “much credibility” in Moore’s testimony due to

Moore’s relationship with Blue and Watkins. (RR4, 191). And, the trial court did

not find Martin’s testimony credible. It further found that the testimony of the Moore

and Martin was not sufficient to answer the question of whether Watkins’s decision

38
to approve the indictments of Appellee and his wife was improperly influenced by

his relationship with Blue. (RR4, 188-191, 216).

Before the conclusion of the March 7, 2013 hearing, the trial court gave

Watkins another opportunity to testify, and he again refused to do so. (RR4, 191-

195).

The trial court concluded that an adverse inference was appropriate as to Blue

based on her invocation of the Fifth Amendment and refusal to answer questions

about her conversations with Watkins. (RR4, 196).

The trial court dismissed the indictments against Appellee, concluding that he

had been denied the right to a meaningful hearing regarding the alleged

constitutional violation due to Watkins’s refusal to testify, Blue’s invocation of her

Fifth Amendment privilege, and that the State had failed to rebut Appellee’s prima

facie showing of prosecutorial misconduct. (RR4, 219).

The trial court issued an order dated March 7, 2013 dismissing the cases

against Appellee. (CR-180, 1100; CR-182, 978; CR-183, 977; CR-191, 894). On

August 2, 2013, the trial court issued detailed findings of fact and conclusions of

law. (CR-180-Supp-Aug02, 78-116).

39
IX. Summary of the Arguments

Appellee will argue that to establish a prima facie case of selective

prosecution in violation of the Fifth and Fourteenth Amendments, and to obtain a

hearing under the “presumption of prosecutorial vindictiveness” method, a

defendant must provide “some evidence” that shows: (1) the government singled out

the defendant for prosecution and has not proceeded against others similarly situated

based on the type of conduct for which the defendant is charged; and (2) the

government’s discriminatory selection is invidious. Once the defendant makes this

showing, the burden shifts to the State to justify the discriminatory treatment.

Appellee will ask this Court to clarify what constitutes “some evidence” and

hold that so long as a defendant attaches a proffer of evidence to a motion to dismiss

due to prosecutorial misconduct, the trial court in its discretion determines to present

a colorable claim of a constitutional violation, the defendant has attached “some

evidence,” and the trial court should have the discretion to conduct a hearing on the

motion to dismiss.

Appellee will also ask this Court to find that Appellee not only attached “some

evidence” showing a constitutional violation, but in fact attached “exceptionally

clear evidence.”

Finally, Appellee will ask this Court to find that the Court of Appeals erred

when it: (1) sustained the State’s second issue and concluded that Appellee “did not

40
make the proper showing sufficient to establish a prima facie case...” of the fact that

the former elected district attorney of Dallas County engaged in prosecutorial

misconduct by allowing himself to be corruptly influenced by a political ally in

return for indicting Appellee; (2) found that the trial court erred in conducting a

hearing on Appellee’s motion to dismiss based upon prosecutorial misconduct; (3)

vacated the trial court’s Order Granting Motion to Dismiss; and (4) remanded the

case to the trial court to reinstate the indictments against Appellee.

As a result, Appellee will ask this Court to reverse the judgment and opinion

of the Court of Appeals, find that Appellee provided “some evidence” constituting

a colorable claim that allowed the trial court to exercise its discretion to order a

hearing, and affirm the trial court’s Order Granting Motion to Dismiss.

41
X. Argument

1. Issue One: To establish a prima facie case of selective prosecution in
violation of the Fifth and Fourteenth Amendments, and to obtain a
hearing under the “presumption of prosecutorial vindictiveness” method,
a defendant must provide “some evidence” that shows: (1) the
government singled out the defendant for prosecution and has not
proceeded against others similarly situated based on the type of conduct
for which the defendant is charged; and (2) the government’s
discriminatory selection is invidious. Once the defendant makes this
showing, the burden shifts to the State to justify the discriminatory
treatment.
Appellee asks this Court to clarify what constitutes “some evidence” and
hold that so long as a defendant attaches a proffer of evidence to a motion
to dismiss due to prosecutorial misconduct, the trial court in its discretion
determines to present a colorable claim of a constitutional violation, the
defendant has attached “some evidence,” and the trial court should have
the discretion to conduct a hearing on the motion to dismiss. Appellee
also asks this Court to find that Appellee not only attached “some
evidence” showing a constitutional violation, but in fact attached
“exceptionally clear evidence.”
Finally, Appellee asks this Court to find that the Court of Appeals erred
when it: (1) sustained the State’s second issue and concluded that
Appellee “did not make the proper showing sufficient to establish a prima
facie case...” of the fact that the former elected district attorney of Dallas
County engaged in prosecutorial misconduct by allowing himself to be
corruptly influenced by a political ally in return for indicting Appellee;
(2) found that the trial court erred in conducting a hearing on Appellee’s
motion to dismiss based upon prosecutorial misconduct; (3) vacated the
trial court’s Order Granting Motion to Dismiss; and (4) remanded the case
to the trial court to reinstate the indictments against Appellee.

i. Introduction – so long as the prosecution is not for an improper
purpose, prosecutors have the discretion to prosecute
In the American criminal justice system, “so long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute,

the decision whether or not to prosecute, and what charge to file or bring before a
42
grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434

U.S. 357, 364 (1978); see U.S. Const. Art. II, § 3; 28 U.S.C. § 547 (2015) (“Except

as otherwise provided by law,” U.S. Attorneys... “shall prosecute for all offenses

against the United States.”); Tex. Code Crim. Proc. Art. 2.01 (2015) (district

attorneys “shall represent the State in all criminal cases in the district courts...[I]t

shall be the primary duty of all prosecuting attorneys, including any special

prosecutors, not to convict, but to see that justice is done. They shall not suppress

facts or secrete witnesses capable of establishing the innocence of the accused.”).

Further, there is a rebuttal presumption that a criminal prosecution is brought

in good faith. Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); United

States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (The “presumption of

regularity” supports prosecutorial decisions, and “in the absence of clear evidence

to the contrary, courts presume that (prosecutors) have properly discharged their

official duties.”).

But, if a prosecution is brought for an improper purpose, such as a quid pro

quo to a political ally who “improperly influences” the prosecutor in any manner –

including but not limited to bribing the prosecutor through “campaign contributions”

when there is no “campaign” – due process and equal protection of the law are

violated, and a court has the right, and the duty, to protect defendants from

prosecutorial decisions that are based on unconstitutional motives or executed in bad

43
faith. Heckler v. Chaney, 470 U.S. 821, 832 (1985) (A selective-prosecution claim

asks a trial court to exercise judicial power over a “special province” of the executive

branch).

And, prosecutors are public officials who must serve the public’s interest –

not their own. Berger v. United States, 295 U.S. 78, 88 (1935). As the Supreme

Court observed in Berger, a prosecutor is:

“...the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall
be done... [H]e may prosecute with earnestness and vigor...[B]ut, while
he may strike hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring
about a just one.”

The Supreme Court has also made it clear that a prosecutor cannot hide behind

the cloak of “prosecutorial discretion” as Watkins attempted to do and avoid judicial

scrutiny if the prosecutor’s decision to prosecute was motivated by

improper reasons. See Dunlop v. Bachowski, 421 U.S. 560, 567 n.7, 568-574 (1975)

(On issue of judicial review of an enforcement decision of an administrative agency

of the executive branch, the Court rejected the agency’s contention that its decisions

are unreviewable exercises of prosecutorial discretion) and Oyler v. Boles, 368 U.S.

448, 456 (1962) (Holding that “some selectivity” in enforcing criminal laws does

44
not violate the equal protection clause, but a defendant may show that the decision

to prosecute was based upon an improper purpose).

The concept of the prohibition against selective and vindictive prosecution

dates back nearly 130 years, when in Yick Wo v. Hopkins, 118 U.S. 356, 373-374

(1886), the Supreme Court of the United States held that the selective prosecution of

Chinese laundry owners violated equal protection because similarly situated non-

Chinese laundry owners were not arrested or prosecuted. In Yick Wo, although the

Chinese laundry owners complied with regulations pertaining to laundries, San

Francisco passed an ordinance that prohibited the operation of a laundry in a wooden

building without a permit. Id. at 358-361. At the time, nearly all of the existing 320

laundries operated in wooden buildings. Id. Out of about 200 applications filed by

Chinese owners for the permit, only one was granted, while the city granted 79 out

of the 80 applications filed by non-Chinese owners. Id. Although 240 of the

laundries were Chinese-owned and 80 were owned by non-Chinese, the prosecutor

charged over 150 Chinese laundry owners for violating the regulations, but did not

charge or prosecute a single non-Chinese laundry owner because all but one were

granted permits. Id. at 360-364.

Yick Wo specifically addressed issues of racial discrimination in selective

prosecution cases. Yick Wo was handed down before the dubious opinion in Plessy

v. Ferguson, 163 U.S. 537 (1896), which upheld the constitutionality of state laws

45
requiring racial segregation in public facilities under the “separate-but-equal”

doctrine. Plessy was not repudiated by the Court until its decision in Brown v. Board

of Education, 347 U.S. 483 (1954). But the fundamental holding in Yick Wo is clear:

regardless of whether a law appears to be valid on its face, if it is prosecuted in an

improper manner, a violation of the Equal Protection Clause of the Fourteenth

Amendment occurs. As Justice Matthews wrote,

“Though the law itself be fair on its face and impartial in appearance,
yet, if it is applied and administered by public authority with an evil eye
and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of
the Constitution.”

Id. at 373-374. In the case before this Court, the circumstances in Yick Wo are in

principle replayed: Texas Penal Code § 32.32, False Statement to Obtain Credit,

certainly appears to be “fair on its face and impartial in appearance.” When it was

“applied and administered” (used to prosecute Appellee), however, by a “public

authority” (Watkins) who does so “with an evil eye and an unequal hand” (because

he was improperly influenced by Blue), “so as practically to make unjust and illegal

discriminations between persons in similar circumstances,” [the State admitted that

the home-equity loan was never in arrears, had been fully repaid before the

commencement of any criminal investigation, and thus the indictments against

Appellee are “unprecedented” (RR4, 49, 126, 129, 155)]..., “the denial of equal

46
justice is still within the prohibition of the Constitution” (Appellee was selectively

prosecuted by Watkins for an improper and illegal purpose).

Stated under present-day laws and standards, under the Equal Protection and

Due Process Clauses of the Fifth and Fourteenth Amendments, to establish a prima

facie case of selective prosecution and to obtain a hearing under the “presumption

of prosecutorial vindictiveness” method, a defendant must provide “some evidence”

that shows: (1) the government singled out the defendant for prosecution and has not

proceeded against others similarly situated based on the type of conduct for

which the defendant is charged; and (2) the government’s discriminatory selection

is invidious. Once the defendant makes this showing, the burden shifts to the State

to justify the discriminatory treatment.

Appellant will show that “some evidence” means evidence that constitutes a

colorable claim of a constitutional violation that may prove the elements of a

presumed selective prosecution claim, and not evidence that proves the

constitutional violation: (1) beyond a reasonable doubt, (2) by clear and convincing

evidence, or (3) by a preponderance of the evidence.

As a result, Appellee asks this Court to clarify what constitutes “some

evidence.” Appellee also asks this Court to find that so long as a defendant attaches

a proffer of evidence to a motion to dismiss due to prosecutorial misconduct that the

trial court in its discretion determines to present a colorable claim of a constitutional

47
violation, the defendant has attached “some evidence,” and a trial court has the

discretion to conduct a hearing on the motion to dismiss.

Appellee met the burden set forth by the Supreme Court because he proffered

with the Motion to Dismiss not just “some evidence,” but rather “exceptionally clear

evidence” proving that Watkins: (1) singled Appellee out for prosecution and did

not proceed against others similarly situated based on the type of conduct for

which Appellee was charged; and (2) acted in an invidious manner. Green v. State,

934 S.W.2d 92, 103 (Tex. Crim. App. 1996); Matney v. State, 99 S.W.3d 626, 628

(Tex. App. Houston [1st Dist.] 2002); Gawlik v. State, 608 S.W.2d 671, 673 (Tex.

Crim. App. 1980); U.S. Const. Amend. V; U.S. Const. Amend. XIV. Therefore,

Appellee was entitled to an evidentiary hearing.

Yet, in a 2-1 decision, the Court of Appeals ruled that Appellee should have

never received a hearing in the first place. If the evidence Appellee attached to his

Motion to Dismiss as a proffer does not constitute “some evidence” that establishes

a prima facie case of selective prosecution, then absent an admission by a prosecutor

that he or she: (1) singled a defendant out for prosecution and did not proceed against

others similarly situated based on the type of conduct for which the defendant was

charged; and (2) acted in an invidious manner, there is no circumstance that could

allow a defendant to obtain a hearing on a selective prosecution claim based upon a

48
claim of “presumption of prosecutorial vindictiveness” that the State must rebut or

face dismissal of the charges (such as was alleged in Appellee’s case).

ii. To raise a “presumption of prosecutorial vindictiveness,” a
defendant must present evidence of circumstances that pose a
“realistic likelihood” of misconduct. When the defendant does so,
the defendant makes a prima facie case. The burden then shifts to
the State to rebut this presumption or face dismissal of the charges

A constitutional claim of prosecutorial vindictiveness or selective prosecution

may be established in two ways: (1) by presenting evidence of circumstances that

pose a “realistic likelihood” of misconduct that is sufficient to raise a “presumption

of prosecutorial vindictiveness,” which the State must rebut or face dismissal of the

charges (as alleged in Appellee’s case); or (2) by presenting proof of “actual

vindictiveness,” which means providing direct evidence that the prosecutor’s

charging decision is an unjustifiable penalty resulting solely from the defendant’s

exercise of a protected legal right. See Neal v. State, 150 S.W.3d 169, 173 (Tex.

Code Crim. App. 2004) (explanation of both methods of establishing prosecutorial

vindictiveness or selective prosecution) and United States v. Goodwin, 457 U.S. 368,

380-381 (1982) (explanation of actual vindictiveness).

Next, a selective-prosecution claim “is not a defense on the merits to the

criminal charge itself, but an independent assertion that the prosecutor has brought

the charge for reasons forbidden by the Constitution.” United States v. Armstrong,

517 U.S. 456, 463 (1996). In Armstrong, the Supreme Court noted that its precedent

49
shows that the standard to prove a claim of selective prosecution is a “demanding”

standard, and that there is a “background presumption” that what a defendant must

show in the first instance to obtain discovery (through a hearing) “should itself be a

significant barrier to the litigation of insubstantial claims.” Id., citing United

States v. Mezzanatto, 513 U.S. 196, 203 (1995) (explanation of “background

presumption” as it relates to the voluntary waiver of legal rights). But it should not

prevent a defendant’s legitimate claims when they are supported by “some

evidence.”

In the Motion to Dismiss and the proffer of evidence attached to the motion,

Appellee clearly showed that Watkins: (1) singled Appellee out for prosecution and

has not proceeded against others similarly situated based on allegations of mortgage

fraud; and (2) clearly acted in an invidious manner, as he pursued the indictments

against Appellee because Watkins allowed himself to be corruptly influenced by

Blue. Therefore, Appellee made a prima facie case of violations of the Fifth and

Fourteenth Amendments under the “presumption of prosecutorial vindictiveness”

method. Appellee was therefore entitled to a hearing because he made a colorable

claim of a constitutional violation.

50
 iii. The majority opinion’s characterization of the evidence attached to
the Motion to Dismiss is inaccurate. Nearly all of the evidence
proffered by Appellee and attached to the Motion to Dismiss: (1)
would be admissible in a hearing without further authentication;
and (2) constitutes “exceptionally clear” evidence that the decision
to prosecute was for an improper purpose, exceeding the standard
that the trial court must, in its discretion, find “some evidence” of
a colorable claim of a constitutional violation
In the dissenting opinion, Justice Bridges does an excellent job of presenting

the facts and describing the proceedings that took place in the trial court. See Hill,

id. at 40-51 (Bridges, J. dissenting). Justice Bridges writes that, to establish a prima

facie case of selective prosecution, a defendant must provide “exceptionally clear”

evidence that the decision to prosecute was for an improper reason. Id. at 53, citing

Garcia v. State, 172 S.W.3d 270, 274 (Tex. App. El Paso, 2005) [A defendant

claiming selective prosecution must come forth with “exceptionally clear evidence”

that the prosecution was initiated for an improper reason, citing Nelloms v. State, 63

S.W.3d 887, 893 (Tex. App. Fort Worth 2001, pet. ref.)].

But Appellee argues that, although the standard that Justice Bridges believes

should apply before a defendant is entitled to a hearing (“exceptionally clear”

evidence) accurately describes the evidence proffered in the Motion to Dismiss,

Appellee believes that the standard that this Court should adopt, which is “some

evidence” that the trial court in its discretion determines to be a colorable claim of a

constitutional violation.

51
 First, the majority opinion below characterizes the evidence attached to the

Motion to Dismiss as “...forty-four exhibits...most of which were unauthenticated or

not otherwise identified by affidavit testimony.” Hill, id. at *8-9. As explained by

the majority, the exhibits include: (1) Hill Jr.’s February 2010 complaint to the

Dallas District Attorney’s office, (2) pleadings from other proceedings, excerpts

from Watkins’s campaign finance reports, (3) email exchanges among attorneys

counsel in the litigation between Blue and Appellee, (4) Blue’s telephone records,

(5) a log of text messages between Blue, Watkins, and his assistant, (6)

announcements about the SMU scholarship funded by Blue and about Watkins’s

hiring of Blue to help in unrelated litigation, (7) a printout of a 2007 Texas

Lawyer article about the district attorney’s office’s grand jury policy, (8) Smith’s

email about her reassignment, (9) excerpts from transcripts in the litigation between

Blue and Appellee, (10) deposition testimony from Blue in the litigation between

Blue and Appellee in which Blue testified to receiving two phone calls from Watkins

about the indictments of the Appellee and his wife, and (11) deposition testimony

from Blue’s co-counsel in the litigation between Blue and Appellee, Malouf, who

testified to overhearing one of those conversations. Hill, id. at *8-9; see CR-180,

68-488.

The majority characterizes this evidence as insufficient and not

“exceptionally clear evidence” or even “some evidence” that shows: (1) Watkins

52
singled out Appellee for prosecution and has not proceeded against others similarly

situated based on the type of conduct for which Appellee is charged; and

(2) Watkins’s discriminatory selection is invidious. As a result, the majority believes

that Appellee did not make a prima facie case of prosecutorial misconduct, so

Appellee was not even entitled to a hearing at the discretion of the trial court.

The majority’s characterization of the evidence proffered with the Motion to

Dismiss is inaccurate because nearly all of the evidence proffered is admissible

without further authentication as follows:

 Sworn testimony or former testimony under Tex. Rule Evid. 804(b)(1) (2013)
(Transcripts or deposition testimony in the Blue-versus-Appellee litigation,
which included phone records that were authenticated during the depositions,
see CR-180, 193-408);

 Public records exception to the hearsay rule under Tex. Rule Evid. 803(8)
(2013) (excerpts from Watkins’s campaign finance reports; and the February
2010 complaint sent to the Dallas District Attorney’s office by Hill Jr.’s
attorney, as a governmental record is “anything belonging to, received by, or
kept by government for information,” see Tex. Pen. Code § 37.01(2)(A)
(2015) and Fox v. State, 418 S.W.3d 365, 371 (Tex. App. Texarkana 2012) (a
document received by the government is a “government record”); see also
Tex. Loc. Gov. Code § 201.003(8) (2013) (A “local government record” is
any document regardless of physical form or characteristic and regardless of
whether public access to it is open or restricted under the laws of the state,
created or received by a local government or any of its officers or employees
in the transaction of public business);

 Admissions by the State under Tex. Rule Evid. 801(3) (2013) or statements
against interest under Tex. Rule Evid. 804(b)(3) (2013) (Announcements
about the SMU scholarship funded by Blue and about Watkins’s hiring of
Blue to help in unrelated litigation, printout of a 2007 Texas Lawyer article
about the office’s grand jury policy, Smith’s email about her reassignment,

53
 and log of text messages between Blue and Watkins and his assistant, email
exchanges among attorneys in the litigation between Blue and Appellee);

Therefore, most of the evidence proffered by Appellee and attached to the Motion to

Dismiss would have been admissible during a hearing without further authentication.

The evidence was more than sufficient to make a prima facie case of prosecutorial

misconduct, and the trial court was well within its discretion to order a hearing.

But even if the evidence proffered with the Motion to Dismiss was not

admissible without further authentication, Appellee argues that in order for a trial

court to have the discretion to order a hearing, defendant is not required to

authenticate proffered evidence as though the defendant is filing a motion for

summary judgment under Texas Rule of Civil Procedure 166a, especially when the

proffered evidence is affidavits, declarations, self-authenticating documents,

deposition transcripts, and public or governmental documents.

Rather, this Court should adopt a standard that a “proffer of evidence” means

“some evidence” that establishes a “colorable claim” of selective prosecution that a

defendant tenders to the trial court in good faith, and then leave it up to the trial court

to exercise its discretion in allowing a hearing on a motion to dismiss for

prosecutorial misconduct. Proffered evidence generally is evidence that is offered

to a court so that the court can make a ruling on its admissibility. Black’s Law

Dictionary, 579 (7th ed. 1999). In Texas, when a party proffers evidence, a trial

court’s ruling on the admissibility of evidence is reviewed under an abuse of
54
discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

If the ruling is within the zone of reasonable disagreement, an appellate court will

not disturb it. Id. When a trial court decides to admit the evidence, finding that the

probative value of the evidence is not outweighed by the danger of unfair prejudice,

this decision is given deference. Id. Thus, a reviewing court does not simply

substitute its own decision for that of the trial court. Id.

A “proffer of evidence” in the context of a selective prosecution claim that

allows a trial court in its discretion to order a hearing on the claim should be no

different than the procedure to obtain a hearing under Franks v. Delaware, 438 U.S.

154 (1978), where a defendant contests the truthfulness of an affidavit supporting a

search warrant. There are two significant similarities between claims of selective

prosecution and those made under Franks. First, just like there is a “presumption of

regularity” that courts presume prosecutors have “properly discharged their official

duties,” which means that it is presumed that prosecutors do not pursue indictments

in exchange for allowing themselves to be corruptly influenced (as Watkins did), see

Armstrong, 517 U.S. at 464, there is also a presumption of truthfulness or validity to

an affidavit supporting a search warrant. Franks, 438 U.S. at 171; see also Cates v.

State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2002) (An affidavit supporting a search

warrant begins with a presumption of validity, so a defendant has the burden of

55
making a preliminary showing of deliberate falsehoods in that affidavit before he is

entitled to a Franks hearing).

Second, when a defendant seeks a Franks hearing, the defendant must proffer

to the trial court an allegation: (1) of deliberate falsehood or reckless disregard for

the truth, accompanied by an offer of proof [Hinojosa v. State, 4 S.W.3d 240, 247

(Tex. Crim. App. 1999)]; (2) that points specifically to portions of the affidavit

claimed to be false, accompanied by a statement of supporting reasons [Cates, 120

S.W.3d at 357] (The defendant made a sufficient preliminary showing to be entitled

to an evidentiary hearing by specifying six specific portions of warrant affidavit that

defendant claimed he knew to be false); and (3) that shows that the false matter was

necessary to support a finding of probable cause. See Harris v. State, 227 S.W.3d

83, 85 (Tex. Crim. App. 2007). If these three conditions are met, and the contents

of the affidavit that are not challenged are insufficient to support a finding of

probable cause, the defendant is entitled to a hearing on the issue of the truthfulness

of the affidavit. Harris, 227 S.W.3d at 85.

In order to obtain a Franks hearing, a defendant need not include a sworn

affidavit to make the preliminary showing. Ramsey v. State, 579 S.W.2d 920, 923

(Tex. Crim. App. 1979); Cates, 120 S.W.3d at 359 (same). In Ramsey, this Court

noted that in Franks, no affidavit or other written material was offered, but only a

statement by the defense attorney as to what would be shown if he were allowed to

56
call witnesses on the issue. Ramsey, 579 S.W.2d at 923 (emphasis added). Such a

preliminary showing was sufficient to justify a hearing. Id.

Thus, if merely alleging a deliberate falsehood or reckless disregard for the

truth, accompanied by an offer of proof, enables a defendant to a Franks hearing in

order to prove a constitutional violation, a trial court should be within its discretion

to order a hearing on a claim of prosecutorial misconduct to determine whether the

defendant was selectively prosecuted if the defendant attaches “some evidence” as

a proffer to the motion to dismiss that the trial court in its discretion determines to

present a colorable claim of a constitutional violation. There should be no

requirement that affidavits or sworn statements be attached to a motion to dismiss

(as the majority of the Court of Appeals implies).

Thus, in their ruling, the majority justices carved out an unprecedented rule in

which, absent an admission by a prosecutor that he or she: (1) singled a defendant

out for prosecution and did not proceed against others similarly situated based on

the type of conduct for which the defendant was charged; and (2) acted in an

invidious manner, there is no circumstance that would allow a trial court the

discretion to grant a hearing on a motion alleging a selective prosecution claim under

the “presumption of prosecutorial vindictiveness” method. The majority’s opinion

thus eliminates a defendant’s ability to present evidence of circumstances that pose

a “realistic likelihood” of misconduct that is sufficient to raise a “presumption of

57
prosecutorial vindictiveness,” which the State must rebut or face dismissal of the

charges (as alleged in Appellee’s case), and leaves a defendant who may be

victimized as Appellee was by Watkins only the ability to prove “actual

vindictiveness,” which means providing direct evidence that the prosecutor’s

charging decision is an unjustifiable penalty resulting solely from the defendant’s

exercise of a protected legal right. See Neal, 150 S.W.3d at 173 and Goodwin, 457

U.S. at 380-381. This should not stand not only for public policy reasons, but as

Appellee will explain below, such a standard is nearly impossible to meet because

evidence of prosecutorial misconduct is often solely in the prosecutor’s possession.

iv. “Some evidence” means that a defendant must attach to the motion
to dismiss evidence that establishes that the defendant has a
colorable claim of a constitutional violation. This allows the trial
court to exercise its discretion in ordering the hearing. Once a
hearing is held, the defendant must show by “exceptionally clear
evidence” that the prosecution was initiated for an improper
reason.
Even if this Court takes the position that the proffer of evidence with a motion

to dismiss may be similar to a proffer under Franks, there still remains the issue of

what constitutes “some evidence.” The Supreme Court in Armstrong provides some

guidance, but falls short of clearly defining “some evidence.” To understand the

basis of Armstrong, Appellee begins with a brief analysis of the proceedings in the

court of appeals. The court of appeals held that a trial court is within its discretion

to allow a hearing for discovery if a defendant presents evidence providing a

58
colorable basis of selective prosecution. United States v. Armstrong, 48 F.3d 1508,

1512 (9th Cir. 1995). Here, the defendant and several others were indicted for

distribution of the cocaine-based drug known as “crack.” Id. at 1510-1511. The

defendants were all black. Id. They filed a motion to dismiss the indictments for

selective prosecution, alleging that due to their race, the prosecutor filed federal

charges rather than state charges. Id. In support, the defendants presented a study

that shows that in all 24 cases handled by a local public defender’s office that

involved violations of the indicted offense, the defendants were black. Id. The

government provided no explanation or rebuttal evidence. Id. at 1511. The trial

court granted the defendants’ motion for discovery. Id.

Rather than comply with the discovery order, the government filed a motion

for reconsideration and presented a list of all defendants charged with the subject

offense over a three-year period but without any racial breakdown, and declarations

by three law enforcement officers and two Assistant United States Attorneys that

provided four explanations for the study's implication that the overwhelming bulk of

federal prosecutions for cocaine-base offenses targeted black defendants. Id. The

declarations: (1) asserted that socio-economic factors led certain ethnic and racial

groups to be particularly involved with the distribution of crack and that blacks were

particularly involved in the crack trade; (2) asserted that during the three-year period,

a total of eleven defendants who are not black but were members of racial or ethnic

59
minority groups were prosecuted for crack; (3) asserted that many blacks had been

tried in state court for cocaine-base offenses; (4) contained a description of some of

the general factors on which federal prosecutors based their charging decisions for

crack-related offenses; and (5) asserted other unidentified “race-neutral” criteria. Id.

In response, the defendants submitted an article and two affidavits from

defense attorneys that showed that: (1) an equal number of white people and

minorities use and deal crack; (2) many nonblacks are prosecuted in state court for

crack offenses; and (3) the federal penalty for crack offenses is higher than the

penalty for powder cocaine offenses, and that most federal prosecutions for crack

offenses involve black defendants. Id. at 1511-1512. The trial court denied the

government's motion for reconsideration, and after the government failed to comply

with the discovery order, the trial court granted the defendants’ motion to dismiss

the indictments. Id. at 1512.

The court of appeals held that the “colorable” basis standard is the proper one

for deciding whether a trial court has the discretion to allow a hearing for the

purposes of discovery on a motion to dismiss because: (1) if a defendant could

establish a prima facie case, the defendant would not need discovery in the first

place; (2) the “colorable” basis standard is consistent with the approach adopted by

the majority of the other circuits courts (more on this below); (3) the “colorable”

basis standard ensures that the government will not be called to answer for charging

60
decisions as a result of frivolous and unwarranted allegations; and (4) the “colorable”

basis standard ensures that defendants will not face unjustified hurdles at the

discovery stage that will preclude them from demonstrating the existence of actual

discrimination in the selection of defendants for criminal prosecution. Id. at 1515.

Thus, to be entitled to a hearing at the trial court’s discretion, under the “colorable”

basis standard, a defendant must present “some evidence” tending to show disparate

treatment and discriminatory intent that entails a non-frivolous showing based on

more than conclusory allegations. Id. at 1512. The government then has the

opportunity to rebut the defendant's showing. Finally, the trial court evaluates the

evidence and determines whether a colorable basis of selective prosecution still

exists. Id. By applying these standards, the court of appeals in Armstrong held that

the defendants made a colorable showing of selective prosecution. Id. at 1514-1515.

Thus, “some evidence” means evidence that demonstrates the defendant can

make a colorable claim showing the existence of the discriminatory effect element,

which would allow a trial court in its discretion to order a hearing. Armstrong, 517

U.S. at 469; Garcia v. State, 172 S.W.3d 270, 274 (Tex. App. El Paso 2005).

Although on certiorari the Supreme Court did not clearly define what constitutes

“some evidence,” and criticized the ruling of the court of appeals that held that a

defendant may establish a colorable basis for discriminatory effect without evidence

that the Government has failed to prosecute others who are similarly situated to the

61
defendant, the Court did not disturb the language “colorable basis for discriminatory

effect.”

It is clear that the Supreme Court’s definition of “some evidence” means

evidence that provides a colorable basis to show that the defendant can prove the

two elements of a selective prosecution claim, which are: (1) the government singled

out the defendant for prosecution and has not proceeded against others similarly

situated based on the type of conduct for which the defendant is charged; and (2) the

government’s discriminatory selection is invidious and not for a proper purpose.

The “some evidence” requirement does not mean that for a trial court to be

within its discretion to order a hearing, a defendant must prove the selective

prosecution claim beyond a reasonable doubt, by clear and convincing evidence, or

even by a preponderance of the evidence.

“Some evidence” means that a defendant must attach to the motion to dismiss

evidence that establishes that the defendant has a colorable claim of a constitutional

violation. This allows the trial court to exercise its discretion in ordering the hearing.

Once a hearing is held, the defendant must show by “exceptionally clear evidence”

that the prosecution was initiated for an improper reason. See Garcia, 172 S.W.3d

at 274; County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989) (same); Gregg

v. Georgia, 428 U.S. 153, 199 (1976); and McCleskey v. Kemp, 481 U.S. 279, 297

62
(1987) (Exceptionally clear evidence required before a court may hold that

prosecutorial discretion has been abused).

Because there is no definition of “colorable claim” or “exceptionally clear

evidence” in the Texas Penal Code or Texas Code of Criminal Procedure, Appellee

points this Court to the plain meanings of these phrases. See Daniels v. State, 754

S.W.2d 214, 219 (Tex. Crim. App. 1988) (Terms that are not defined by statute are

given their plain meaning unless a statute clearly shows that they were used in some

other sense.); see also Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.

1979) (same).

A “colorable claim” is one that is “plausible, credible, or conceivable.”

Concise Oxford American Thesaurus, 149 (2006). Or, it is a claim that is “legitimate

and that may reasonably be asserted, given the facts presented and the current law.”

Black’s Law Dictionary, 240 (7th ed. 1999). “Exceptionally clear evidence” is

evidence that is “unusually obvious, plain, evident, and intelligible.” Concise

Oxford American Thesaurus, 138, 292 (2006).

Appellee made a “colorable claim” of a constitutional violation. The Motion

to Dismiss and its attachments detail how Blue, who at the time was engaged in a

fee dispute with Appellee, corruptly influenced Watkins, a close friend and fellow

Democratic party operative, to authorize indictments against Appellee in exchange

for a promise of and actual receipt of “campaign” contributions for a nonexistent

63
“campaign.” The State admitted that the indictments were “unprecedented.” (RR4,

49, 126, 129, 155; CR-180, 31-488). And, the indictments clearly benefitted Blue,

as Appellee was forced to assert his Fifth Amendment privilege and did not testify

on his own behalf during the fee dispute trial because of the pending criminal

indictments.

And, Appellee not only proffered “some evidence” with the Motion to Dismiss

that would establish a “colorable claim,” enabling the trial court to exercise its

discretion and order a hearing under the proposed standard. Appellee in fact

proffered “exceptionally clear evidence.” On its face, the proffered evidence makes

it “obvious, plain, and evident” that Watkins pursued the indictments in exchange

for allowing himself to be corruptly influenced by Blue. The evidence includes the

following (See CR-180, 36-52):

 The case against Appellee was referred to the District Attorney’s Office by
the attorney for Hill Jr., who is an adverse party to Appellee in a federal
lawsuit.

 On February 18, 2010, the judge in the federal lawsuit entered an order finding
that Hill Jr.: (1) submitted summary judgment materials in bad faith and with
the intent of committing fraud on the Court, and (2) lied under oath. The
district court also found that Hill Jr.’s attorney had “far exceeded the bounds
of advocacy, permissible or otherwise.”

 Four days later, Hill Jr.’s father submitted a letter to the district attorney’s
office in which he accused Appellee and his wife of mortgage fraud.

 A few months later, the law firm partner of Hill Jr.’s attorney donated nearly
$50,000 to the reelection campaign of Watkins even though no member of
that firm had previously contributed to Watkins’s campaigns. The
64
 contributions immediately made the partner one of Watkins’s largest
individual contributors.

 The mortgage fraud allegations were dubious at best. The home equity loan
obtained by Appellee was never in default, was repaid in full just a few months
after it was obtained (long before Watkins considered criminal charges against
Appellee), and was fully secured at all times by Appellee’s undisputed equity
in the subject home.

 OmniAmerican did not suffer any loss, was never at risk of suffering any loss,
and never complained to authorities that Appellee did anything wrong or
committed any crime.

 Prior to indicting Appellee, the District Attorney’s Office did not interview
key witnesses such as the loan officer or the mortgage broker.

 Despite the policy of the District Attorney’s Office that defense attorneys
would be provided notice of grand jury proceedings and have an opportunity
to present their case to the grand jury, no such notice was given to Appellee
or his attorneys. This is in the face of the fact that Moore, who was a witness
during the motion to dismiss hearing, told Texas Lawyer that it was “all about
fairness... This is not a railroad we are running...this is a justice system.”

 Beginning in November 2009, Appellee was represented for about six months
in the federal litigation by a group of attorneys that included Blue. Blue
bragged to Appellee about her relationship with Watkins, and specifically told
Appellee about her personal friendship with Watkins, generous campaign
contributions she gave to Watkins, and pro bono representation of Watkins as
his personal lawyer.

 While representing Appellee, Blue even discussed ways she might use her
influence with Watkins to intimidate opposing counsel in the federal
litigation.

 Shortly after the federal litigation settled in May 2010, Blue and the two
attorneys with whom she represented Appellee demanded $50 million in
attorney’s fees for six months’ work. When Appellee refused, Blue and the
other attorneys withdrew from representing him and filed suit against
Appellee.

65
 Two weeks before this fee dispute trial was set to begin in federal court on
April 18, 2011, Appellee learned that he had been indicted. As a result of the
indictments, Appellee was advised to not take the stand during the fee dispute
trial.

 The federal court entered a judgment against Appellee and his wife for more
than $34 million, which was later reduced to $21.9 million, with Blue
personally standing to receive one-third of the judgment, or about
$7.3 million.

 Appellee then obtained discovery from Blue regarding her communications
with the District Attorney’s Office. During a deposition, Blue admitted that
Watkins had called her before the indictments were returned to discuss
potential charges against Appellee. Blue stated that Watkins told her that
“there could be an indictment or are you still interested in the indictments,” or
words to that effect.

 Through that discovery, a dramatic spike in communications between Blue
and Watkins was revealed, which occurred in the weeks and days before the
indictments were obtained. These communications included calls between
Blue and both Watkins’s office and cellphone numbers.

 Campaign finance records reflect that, on March 9, 2011, which was about
three weeks before the indictments were presented, the Watkins campaign
accepted a $5,000 donation from Blue. This was despite the fact that
Watkins’s “reelection campaign” had ended months earlier (Watkins had been
reelected in November 2010).

 Blue solicited others who donated thousands more to Watkins around the
same time.

 On March 30, 2011, the day before indictments against Appellee were
presented to the grand jury, Blue and Watkins communicated seven times via
Watkins’s cellphone number.

 About 18 months after Appellee was indicted, on October 12, 2012,
Appellee’s counsel met with assistant district attorney Deborah Smith, who
took over the cases against Appellee long after the indictment. Smith

66
 described a “reevaluation” of the cases, and said that she had already
determined that she would recommend dismissing certain charges against
both Appellee and his wife (who had also been indicted). Smith also told
Appellee’s counsel that she was conducting “due diligence” interviews of
witnesses regarding the remaining charges, and would eventually make a
recommendation regarding those charges as well.

 Smith expressed significant concerns about the cases against Appellee and his
wife, made clear that she (Smith) had no role in obtaining the indictments,
further stated that the interviews of witnesses she was conducting should have
been conducted much earlier. Smith also stated that she would refuse to try
the case if her office decided to go forward on any of the charges. Smith
conveyed several reasons why the charges against Appellee were without
merit. Smith requested that certain information be put in a written submission
for her to use in connection with her recommendations.

 Smith “apologized” on behalf of the District Attorney’s Office.

 On October 19, 2012, Appellee’s counsel emailed the written submission to
Smith.

 Shortly after the meeting with Smith, the District Attorney’s Office filed a
motion to dismiss all charges against Appellee’s wife.

 On October 22, 2012, in response to the email from Appellee’s counsel, Smith
stated that even though she was in the middle of a “reevaluation” of the cases
against Appellee and his wife (which had already caused Smith to recommend
and obtain dismissals against Appellee’s wife), Smith had been removed from
the Hill case effective the previous Friday and was reassigned to the animal
cruelty unit.

v. No appellate court in Texas has ever ruled that a trial court erred
in conducting a hearing on a defendant’s motion to dismiss charges
on the basis they violated his constitutional rights.
The dissent is correct in concluding that no appellate court in Texas has ever

ruled that a trial court erred in conducting a hearing on a defendant’s motion to

dismiss charges on the basis they violated his constitutional rights. Hill, id. at 38-39;

67
citing State v. Dinur, 383 S.W.3d 695, 698-699 (Tex. App. Houston [14th Dist.]

2012, no pet.) (Trial court allowed hearing); Rodriguez v. State, 283 S.W.3d 465,

471-472 (Tex. App. San Antonio 2009) (same); Galvan v. State, 988 S.W.2d 291,

293 (Tex. App. Texarkana 1999) (same). Even when the proffer of evidence was

very weak and did not establish a colorable claim of a violation, the reviewing court

did not find that the trial court abused its discretion by allowing the hearing in the

first instance. See Garcia, id. at 272-274 (In an interference-with-child-custody

case, the court of appeals rejected a claim of selective prosecution where the entirety

of the proffered and presented evidence was an allegation that another person who

fled to Mexico with a child was not prosecuted).

vi. Texas public policy benefits if trial courts are allowed discretion to
determine whether a defendant has made the threshold showing of
a colorable claim that the defendant is entitled to a hearing
In Texas, persons accused of crimes obtain formal discovery through:

(1) Texas Code of Criminal Procedure Article 39.14; and (2) motions filed under

Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. See Tex. Code Crim. Proc.

Art. 39.14 (2015). Article 39.14 requires disclosure of offense reports and written

or recorded statements of the defendant or witnesses. Tex. Code Crim. Proc.

39.14(a) (2015). The State, however, need not release its work product, including

those of the prosecutors or its investigators. Id.

68
 Under Brady and its progeny, the State must disclose material evidence that

is favorable to the defendant. Failure to do so results in a violation if: (1) regardless

of the prosecutor’s good faith or bad faith, the State failed to disclose evidence; (2)

the evidence is exculpatory; and (3) the evidence is material to the defense, meaning

that there is a reasonable probability that, had the evidence been disclosed, the

outcome of the trial would have been different (i.e., the defense was

prejudiced). Strickler v. Green, 527 U.S. 263, 281-282 (1999); Harm v. State, 183

S.W.3d 403, 406-407 (Tex. Crim. App. 2006) (same); Brady, id. at 87; Moore v.

Illinois, 408 U.S. 786, 794-795 (1972) (same). As the Supreme Court explained in

Brady, disclosure of exculpatory evidence is necessary to: (1) (avoid) “an unfair trial

to the accused”; and (2) “[S]ociety wins not only when the guilty are convicted but

when criminal trials are fair; our system of the administration of justice suffers when

any accused is treated unfairly.” Id. at 87.

However, evidence of selective prosecution is nearly impossible for a

defendant to obtain through Article 39.14 or Brady because the evidence more than

likely is in the hands of the prosecutor who is committing the misfeasance. See

Wayte v. United States, 470 U.S. 598, 624 (1985) (Marshall, J., dissenting). As

Justice Marshall noted, “[The] need to develop all relevant facts in the adversary

system is both fundamental and comprehensive. The ends of criminal justice would

be defeated if judgments were to be founded on a partial or speculative presentation

69
of the facts.” Id. Justice Marshall also recognized that “...most of the relevant proof

in selective prosecution cases will normally be in the Government's hands.”

And, because of the seriousness of allegations of selective prosecution,

especially given that a prosecutor behaving as Watkins did is an affront to the justice

system, procedural rules such as limitations of discovery in criminal case should

never deprive a defendant of the evidence he needs to substantiate a claim of

prosecutorial misconduct. Unfortunately, it is highly unlikely that a prosecutor

would ever voluntarily disclose evidence of selective prosecution that violates the

Constitution. In fact, if a prosecutor actually made such a disclosure, this would be

proof of “actual vindictiveness,” which is direct evidence of misconduct under

Goodwin, 457 U.S. at 380-381. In such a situation, there would be no need for a trial

judge to exercise her discretion to order an evidentiary hearing.

It is axiomatic that prosecuting a person because a political ally provided or

offered a bribe undermines the integrity of the criminal justice system. Thus,

depriving a defendant of discovery and a hearing on a claim of prosecutorial

misconduct such as the one before this Court is as unjust as depriving a defendant of

Brady evidence.

Because trial judges are gatekeepers of evidence, allowing them the discretion

to conduct a hearing when a defendant makes a colorable claim of prosecutorial

misconduct will eliminate this potential for grave injustice. Such a holding issued

70
by this Court will not only promote fairness in the criminal justice system, but it is

good public policy in Texas.

vii. Most other courts have adopted standards substantially
similar to the standard that Appellee argues this Court should
adopt: that so long as a defendant attaches a proffer of evidence to
a motion to dismiss due to prosecutorial misconduct that the trial
court in its discretion determines to present a colorable claim of a
constitutional violation, the defendant has attached “some
evidence,” and the trial court should have the discretion to conduct
a hearing on the motion to dismiss.

First Circuit: In United States v. Penagaricano-Soler, 911 F.2d 833 (1st Cir.

1990), the court of appeals affirmed the district court’s decision to not conduct a

hearing because the district court concluded that there was no “colorable basis” for

the selective prosecution claim, and thus the district court refused to order further

discovery, and denied the motion to dismiss. Id. at 835-837 (emphasis added). In

so affirming, the court of appeals held that a selective prosecution claim merits an

evidentiary hearing if it alleges sufficient “facts (1) tending to show that [the

defendant] has been selectively prosecuted, and (2) raising a reasonable doubt about

the propriety of the prosecution’s purpose, unless the government can present

‘countervailing reasons.’” Id. at 838.

Second Circuit: In United States v. Fares, 978 F.2d 52 (2d Cir. 1992), the

court of appeals held that to warrant discovery with respect to a claim of selective

prosecution, a defendant must present at least “some evidence tending to show the

71
existence of the essential elements of the defense and that the documents in the

government’s possession would indeed be probative of these elements.” Id. at 58

(emphasis added). Mere assertions and generalized proffers on information and

belief are insufficient. Id. (emphasis added). As an example, the court of appeals

cites United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974), in which the court

of appeals held that a proffer of evidence stating that defendant and his attorney

“believed” that “there were hundreds” of unprosecuted persons situated similarly to

defendant was insufficient for lack of identification of any unprosecuted violators or

affiliated organizations. Id. at 58. Thus, absent a showing of “some evidence”

tending to demonstrate the existence of prosecutorial misconduct, a district court is

well within its discretion to deny a motion for discovery and a hearing on a claim of

prosecutorial misconduct. Id.

Third Circuit: In United States v. Torquato, 602 F.2d 564 (3d Cir.

1979), cert. denied, 444 U.S. 941 (1979), the court of appeals held that in order to

obtain a hearing on a claim of prosecutorial misconduct, the defendant must make a

threshold showing of discriminatory prosecution before an evidentiary hearing will

be allowed. This threshold showing requires the defendant to prove a “colorable

entitlement” to the claim of selective prosecution. Id. at 570 (emphasis added). The

court further explained that a “colorable entitlement” requires the defendant to

provide “some credible evidence...indicating that the government intentionally and

72
purposefully discriminated against the defendant by failing to prosecute other

similarly situated persons.” Id. (emphasis added).

Fourth Circuit: In United States v. Greenwood, 796 F.2d 49 (4th Cir. 1986),

the court of appeals held that in order to obtain a hearing on a claim of prosecutorial

misconduct, a defendant must make a “nonfrivolous showing” of both elements of

the claim. Id. at 52 (emphasis added). A “nonfrivolous showing” is described as

allegations that “...raise at least a legitimate issue of improper governmental

conduct.” Id. Further, in determining whether a legitimate issue has been raised, the

district court may consider the government’s explanation for its conduct. Id. Finally,

upon a “nonfrivolous showing” by the defendant, a trial court is within its discretion

to grant the hearing.

Sixth Circuit: In United States v. Peete, 919 F.2d 1168 (6th Cir. 1990), the

court of appeals affirmed its holding in United States v. Schmucker, 815 F.2d 413,

418 (6th Cir. 1987), in which it held that “ [a] defendant may...be entitled to

discovery on the issue of selective prosecution if he introduces some evidence

tending to show the existence of the essential elements of the defense.” Id. at 1177

(emphasis added).

Seventh Circuit: In United States v. Goulding, 26 F.3d 656 (7th Cir.

1994), cert. denied, 513 U.S. 1061 (1994), the court of appeals held that, to obtain

discovery on an allegation of prosecutorial misconduct, a defendant must show there

73
is a “colorable basis” for the claim (emphasis added). Id. at 662; see also United

States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990) (same).

Ninth Circuit: In United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir.

1995), the court of appeals held that a trial court is within its discretion to allow a

hearing for discovery if a defendant presents evidence providing a colorable basis of

selective prosecution. See above.

Tenth Circuit: In United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992),

the court of appeals ruled that in order to obtain a hearing on a claim of prosecutorial

misconduct, the defendant must show some evidence tending to show the elements.

Id. at 860. The court further held, “There is no vindictiveness as long as the

prosecutor’s decision is based upon the normal factors ordinarily considered in

determining what course to pursue, rather than upon genuine animus against the

defendant for an improper reason or in retaliation for exercise of legal or

constitutional rights.” Id. The court further explained that the scope of a reviewing

court’s inquiry must be “whether, as a practical matter, there is a realistic or

reasonable likelihood of prosecutorial conduct that would not have occurred but for

hostility or punitive animus towards the defendant because he exercised his specific

legal right.” Id.

Eleventh Circuit: In Jones v. White, 992 F.2d 1548 (11th Cir. 1993), cert.

denied, 481 U.S. 1055 (1993), the court of appeals held that a defendant may obtain

74
an evidentiary hearing on the issue of selective prosecution or other prosecutorial

misconduct if the defendant “presents facts sufficient to raise a reasonable doubt

about the prosecutor’s motive.” Id. at 1572.

D.C. Circuit: In Attorney General of United States v. Irish People, Inc., 684

F.2d 928 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172 (1983), the court of appeals

held that a district court in its discretion may require a defendant to make a

“colorable claim” of prosecutorial misconduct before subjecting the government to

discovery on the issue. Id. at 947 (emphasis added).

Appellee notes for this Court that the Eighth Circuit in United States v.

Parham, 16 F.3d 844, 846 (8th Cir. 1993) and the Fifth Circuit in United States v.

Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978) held that to obtain a discovery hearing

on a claim of prosecutorial misconduct, a defendant must first make a prima facie

showing that the government acted inappropriately. Although Appellee disagrees

with the standard set forth by the Fifth and Eight Circuits, Appellee notes that the

analysis for his case does not change, as Appellee not only attached “some evidence”

showing a constitutional violation, but in fact attached “exceptionally clear

evidence” that constitutes a prima facie case of prosecutorial misconduct. Still,

Appellee asks this Court to not adopt this standard for Texas.

75
 viii. This Court should affirm the trial court’s order dismissing
the indictments because the evidence obtained during the March 7,
2013 hearing overwhelmingly proved that: (1) Watkins singled out
Appellee for prosecution and has not proceeded against others
similarly situated based on the type of conduct for which Appellee
was charged; and (2) Watkins’s discriminatory selection was
invidious and resulted from allowing himself to be improperly
influenced by Blue.
The evidence obtained during the March 7, 2013 hearing is set forth in great

detail over the span of 20 pages in section VIII above. Appellee will not recount

those facts here. However, this Court will find that the evidence obtained so

overwhelmingly proved that: (1) Watkins singled out Appellee for prosecution and

has not proceeded against others similarly situated based on the type of conduct for

which Appellee was charged; and (2) Watkins’s discriminatory selection was

invidious and resulted from allowing himself to be improperly influenced by Blue,

that this Court should affirm the trial court’s order dismissing the indictments.

ix. Conclusion

To establish a prima facie case of selective prosecution in violation of the

Fifth and Fourteenth Amendments, and to obtain a hearing under the “presumption

of prosecutorial vindictiveness” method, a defendant must provide “some evidence”

that shows: (1) the government singled out the defendant for prosecution and has not

proceeded against others similarly situated based on the type of conduct for

which the defendant is charged; and (2) the government’s discriminatory selection

76
is invidious. Once the defendant makes this showing, the burden shifts to the State

to justify the discriminatory treatment.

Appellee has shown why this Court should clarify what constitutes “some

evidence” and hold that so long as a defendant attaches a proffer of evidence to a

motion to dismiss due to prosecutorial misconduct, the trial court in its discretion

determines to present a colorable claim of a constitutional violation, the defendant

has attached “some evidence,” and the trial court should have the discretion to

conduct a hearing on the motion to dismiss. Appellee has also shown why this Court

should find that Appellee not only attached “some evidence” showing a

constitutional violation, but in fact attached “exceptionally clear evidence.”

Appellee has also shown this Court that the Court of Appeals erred when it:

(1) sustained the State’s second issue and concluded that Appellee “did not make the

proper showing sufficient to establish a prima facie case...” of the fact that the former

elected district attorney of Dallas County engaged in prosecutorial misconduct by

allowing himself to be corruptly influenced by a political ally in return for indicting

Appellee; (2) found that the trial court erred in conducting a hearing on Appellee’s

motion to dismiss based upon prosecutorial misconduct; (3) vacated the trial court’s

Order Granting Motion to Dismiss; and (4) remanded the case to the trial court to

reinstate the indictments against Appellee.

77
 As a result, (1) the decision of the Court of Appeals conflicts with another

court of appeals’ decision on the same issue; (2) the Court of Appeals has decided

an important question of state or federal law that has not been, but should be, settled

by the Court of Criminal Appeals; (3) the Court of Appeals has decided an important

question of state or federal law in a way that conflicts with the applicable decisions

of the Court of Criminal Appeals and the Supreme Court of the United States; (4) the

Court of Appeals misconstrued a rule; and (5) the justices of the Court of Appeals

have disagreed on a material question of law necessary to the court’s decision. See

Tex. Rule App. Proc. 66.3 (2015).

XI. Conclusion and Prayer

For the reasons stated in this Brief, Appellee respectfully prays that this Court

reverse the judgment and opinion of the Court of Appeals, find that Appellee

provided “some evidence” constituting a colorable claim that allowed the trial court

to exercise its discretion to order a hearing, and affirm the trial court’s Order

Granting Motion to Dismiss.

Respectfully submitted,

78
George R. Milner III
Milner Finn Price
2828 N. Harwood St. Suite 1950
Dallas, Texas 75201
Phone: 214-651-1121
Fax: 214-953-1366
ItsRainingII@aol.com
Texas Bar No. 00784611
Attorney for Appellee

Leonard Thomas (Butch) Bradt
14015 Southwest Freeway Suite 4
Sugar Land, TX 77478
Phone: 972-201-0700
Fax: 972-201-1202
ltbradt@flash.net
Texas Bar No. 02841600
Attorney for Appellee

Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee

/s/ Michael Mowla
By: Michael Mowla

79
XII. Certificate of Service

I certify that on July 24, 2015, a true and correct copy of this document was
served on Chad Baruch by email to baruchesq@aol.com, on Lisa McMinn, the State
Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and on John
Messinger, Assistant State Prosecuting Attorney, by email to
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule
App. Proc. 68.11 (2015).

/s/ Michael Mowla
By: Michael Mowla

XIII. Certificate of Compliance with Tex. Rule App. Proc. 9.4

This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 15,000 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 14,720 words in the document except in the following sections:
caption, identity of parties and counsel, table of contents, table of authorities,
statement of the case and jurisdiction, statement regarding oral argument, statement
of issues or questions presented, signature, proof of service, certification, certificate
of compliance, and appendix. This document also complies with the typeface
requirements because it has been prepared in a proportionally-spaced typeface using
14-point font. See Tex. Rule App. Proc. 9.4 (2015).

/s/ Michael Mowla
By: Michael Mowla

80
APPENDIX
| | Neutral
As of: February 14, 2015 8:05 AM EST

State v. Hill
Court of Appeals of Texas, Fifth District, Dallas
December 29, 2014, Opinion Filed
No. 05-13-00421-CR, No. 05-13-00423-CR, No. 05-13-00424-CR, No. 05-13-00425-CR

Reporter
2014 Tex. App. LEXIS 13835

THE STATE OF TEXAS, Appellant v. ALBERT G. HILL III, Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION
OF UNPUBLISHED OPINIONS.

Prior History: [*1] On Appeal from the 204th Judicial District Court, Dallas County, Texas. Trial
Court Cause Nos. F11-00180-Q, F11-00182-Q, F11-00183-Q, F11-00191-Q.
In re Watkins, 2013 Tex. App. LEXIS 4194 (Tex. App. Dallas, Apr. 2, 2013)

Core Terms

indictments, trial judge, prosecute, evidentiary hearing, charges, district attorney’s office, allegations,
trial court, motion to dismiss, vindictiveness, campaign, prima facie case, cases, discovery, exhibits,
grand jury, animus, constitutional right, phone call, fee-dispute, constitutional violation, attorneys’,
documents, donated, deposition, motion to quash, prosecutorial, notice, district attorney, communications

Case Summary

Overview
HOLDINGS: [1]-The charges against defendant should not have been dismissed where the trial judge
erred in conducting a hearing on defendant’s motion to dismiss because defendant did not make the
proper showing sufficient to establish a prima face case of his alleged constitutional violations; [2]-The
trial judge granted defendant an evidentiary hearing so that he could try to prove that he was prosecuted
in violation of his constitutional rights, but by conducting that evidentiary hearing before defendant
met the evidentiary threshold, the judge turned the standard around and put the burden on the State to
show why the prosecutor was not operating under a conflict of interest and how the prosecution of
defendant was not vindictive or selective.

Outcome
Order vacated and cases remanded.

LexisNexis® Headnotes

Criminal Law & Procedure > ... > Standards of Review > Deferential Review > General Overview
Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > General Overview
 2014 Tex. App. LEXIS 13835, *1

Criminal Law & Procedure > Trials > Judicial Discretion
Criminal Law & Procedure > ... > Standards of Review > Deferential Review > General Overview
Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > General Overview
Criminal Law & Procedure > Trials > Judicial Discretion

HN1 While an appellate court ordinarily defers to a trial judge’s decision to hold an evidentiary
hearing, that deference is tempered by the legal principles and standards governing evidentiary
hearings. A judge’s decision to hold an evidentiary hearing is reviewed for an abuse of discretion. Tex.
Code Crim. Proc. Ann. arts. 28.01, § 1(2), 27.02(1) (2006).

Criminal Law & Procedure > ... > Accusatory Instruments > Dismissal > Procedure
Criminal Law & Procedure > Trials > Burdens of Proof > Defense
Criminal Law & Procedure > ... > Dismissal > Grounds for Dismissal > General Overview
Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
Evidence > ... > Presumptions > Particular Presumptions > Regularity
Criminal Law & Procedure > ... > Accusatory Instruments > Dismissal > Procedure
Criminal Law & Procedure > Trials > Burdens of Proof > Defense
Criminal Law & Procedure > ... > Dismissal > Grounds for Dismissal > General Overview
Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
Evidence > ... > Presumptions > Particular Presumptions > Regularity

HN2 Generally, a trial judge has only limited authority to dismiss a case without the State’s consent,
such as to remedy a constitutional violation. And while a trial judge may dismiss an indictment where
constitutional protections are not observed, the dismissal of an indictment is a drastic measure only to
be used in the most extraordinary circumstances. A trial judge’s limited authority to dismiss an
indictment stems in part from the fact that the decision of whether to prosecute is a core executive
constitutional function. Because this power is within the province of the State, the State enjoys
considerable discretion in deciding whether or not to prosecute and what charge to file or bring to the
grand jury. That means courts presume the State exercised its prosecutorial responsibilities in good
faith and in compliance with the Constitution. The burden on the defendant to show that a particular
prosecutorial decision was predicated on constitutionally impermissible grounds is high, requiring him
to prove his claim with clear evidence.

Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
Evidence > ... > Presumptions > Particular Presumptions > Regularity
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
Evidence > ... > Presumptions > Particular Presumptions > Regularity
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

Page 2 of 29
 2014 Tex. App. LEXIS 13835, *1

HN3 The significance of the presumption courts afford prosecutors carries over to a defendant’s
request for an evidentiary hearing or discovery. That is, in light of the presumption of prosecutorial
regularity, a defendant who claims his constitutional rights were violated by some form of
prosecutorial misconduct must make out a prima facie case of his claims before he is entitled to an
evidentiary hearing or discovery. To do this, a defendant must present facts sufficient to create a
reasonable doubt about the constitutionality of his prosecution. The facts required to cast doubt about
the constitutionality of the prosecution and to rebut the presumption the State acted in good faith such
that a person is entitled to an evidentiary hearing (or even discovery) must be more than allegations.
Rather, a defendant’s factual allegations must be accompanied by evidence that tends to establish his
constitutional claims. Indeed, the standard for obtaining discovery on claims like selective or
vindictive prosecution requires some evidence tending to show the existence of the essential elements
of the claimed violations. This standard is rigorous and complements the rigorous standard for proving
constitutional violations in the decision to prosecute.

Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Tests for Prosecutorial Misconduct
Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Tests for Prosecutorial Misconduct
Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN4 The absence of an impartial and disinterested prosecutor can violate a defendant’s due process
rights. Partiality in this context is like a conflict of interest in the sense that the prosecutor has a
personal interest or stake in the outcome of the criminal prosecution. It also refers to any interest that
conflicts with the prosecutor’s duty to seek justice. Thus, the due process rights of a defendant are
violated when a prosecuting attorney who has a conflict of interest relevant to the defendant’s case
prosecutes the defendant. The mere potential or perceived conflict of interest is not sufficient to
establish a due process violation. Similarly, mere allegations of wrongdoing do not suffice.

Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

HN5 ″Prosecutorial vindictiveness″ refers to a situation in which the State acts against a defendant by
bringing criminal charges in retaliation for the defendant’s exercise of his legal rights. A prosecutorial
action is vindictive if it is designed to penalize a defendant for invoking legally protected rights. A
defendant may demonstrate prosecutorial vindictiveness by showing actual vindictiveness, which
requires him to present objective evidence of the violation. Or, in certain circumstances, the defendant
may rely on a presumption of vindictiveness, which requires him to present facts showing the realistic
likelihood of vindictiveness, forcing the State to present objective evidence justifying the prosecutorial
action. There is no presumption of vindictiveness if in the context of the entire proceedings any
objective event or combination of events in those proceedings should indicate to a reasonable minded
defendant that the prosecutor’s decision was motivated by some purpose other than a vindictive desire
to deter or punish. Even if the defendant establishes a realistic likelihood of vindictiveness, the State
still has an opportunity to proffer legitimate, objective reasons for its conduct.

Page 3 of 29
 2014 Tex. App. LEXIS 13835, *1

Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution

HN6 Evidence of suspicious timing alone does not indicate prosecutorial animus.

Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Constitutional Law > Equal Protection > Nature & Scope of Protection
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Constitutional Law > Equal Protection > Nature & Scope of Protection
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

HN7 A selective prosecution claim is an assertion that the State brought charges for reasons forbidden
by the Constitution. A selective-prosecution claim draws on ordinary equal protection standards and
requires a defendant to prove the existence of purposeful discrimination. To make out a prima facie
case, the defendant must first show that he has been singled out for prosecution while others similarly
situated and committing the same acts have not been prosecuted. He must also show that the State’s
discriminatory selection of him for prosecution was invidious or in bad faith.

Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution

HN8 There is an evidentiary threshold that must be met by the defendant before he is entitled to an
evidentiary hearing on his claims that he was prosecuted in violation of his constitutional rights. That
burden requires a defendant to do more than make unsupported allegations or speculative inferences
about an improper motive. Stated another way, before a defendant gets to make inquiries into the
State’s decision to prosecute, the defendant must support his allegations with evidence that tends to
establish his constitutional claims. A defendant may demonstrate prosecutorial vindictiveness by
showing actual vindictiveness, which requires him to present objective evidence of the violation. Or,
in certain circumstances, the defendant may rely on a presumption of vindictiveness, which requires
him to present facts showing the realistic likelihood of vindictiveness, forcing the State to present
objective evidence justifying the prosecutorial action. There is no presumption of vindictiveness if in
the context of the entire proceedings any objective event or combination of events in those proceedings
should indicate to a reasonable minded defendant that the prosecutor’s decision was motivated by
some purpose other than a vindictive desire to deter or punish.

Counsel: for appellants: Michael R. Casillas, Dallas, TX; Charles “Chad” Baruch, Rowlett, TX.

for appellees: George Milner III, Dallas, TX; John C. Hueston, NewPort Beach, CA; Marshall Camp,
Alison Plessman, Los Angeles, CA; Michael Mowla, Cedar Hill, TX.

Page 4 of 29
 2014 Tex. App. LEXIS 13835, *1

Judges: Before Justices Bridges, O’Neill, and Brown. Opinion by Justice Brown. Bridges, J.,
dissenting.

Opinion by: ADA BROWN

Opinion

Opinion by Justice Brown

On March 31, 2011, a Dallas grand jury returned multiple indictments against Albert G. Hill III and
his wife for the offenses of making a false statement to obtain property or credit and securing execution
of a document by deception.1 The charges allegedly arose out of the Hills’ procurement of a $500,000
home-equity loan in 2009. The State later dismissed the charges against Hill’s wife and continued to
prosecute the cases against Hill. In a motion filed shortly after the dismissal of his wife’s charges, Hill
sought to quash and dismiss the indictments against him, alleging he was the victim of various forms
of prosecutorial misconduct in violation of his constitutional rights. Alternatively, he asked for an
evidentiary hearing and discovery to develop the issues presented in his motion. Over the State’s
objections, the trial judge determined that Hill met his initial burden of proof related to his
constitutional [*2] claims and therefore was entitled to a hearing ″to try to prove″ his allegations. After
the judge held a hearing, the judge signed an order dismissing the indictment in each case with
prejudice.

The State appeals that order. In its first two issues, the State challenges the propriety of the evidentiary
hearing, arguing that Hill was not entitled to such a hearing because he failed to provide evidence to
establish a constitutional violation. In its third and fourth issues, the State challenges the trial judge’s
(1) dismissal of the indictments based on the Dallas County District Attorney’s refusal to testify at the
hearing and (2) decision to dismiss the indictments with prejudice.

We agree with the State that the trial judge erred in conducting an evidentiary hearing on Hill’s motion
to quash and dismiss the indictments because Hill did not make the necessary showing related to his
constitutional claims. Accordingly, we vacate the trial judge’s order dismissing the indictments in these
cases and remand the cases to the trial court with instructions to reinstate the indictments against Hill.

I.

A. Hill’s Allegations of Prosecutorial Misconduct

Hill [*3] sought pretrial dismissal of the indictments based on alleged violations of his constitutional
rights to due process and equal protection. He first alleged that his due process rights were violated
because the Dallas County District Attorney, Craig Watkins, was not disinterested in the prosecution
of him but rather was operating under the influence of Hill’s father, who was adverse to Hill in
contested litigation involving a multi-billion dollar family trust, and Lisa Baron Blue, a close friend
and political patron of Watkins. Hill argued Watkins’s decision to present the cases to the grand jury
was influenced by the payment of political contributions. Hill also alleged that a due process violation
1
See TEX. PENAL CODE ANN. §§ 32.32(b), 32.46(a) (West 2011).

Page 5 of 29
 2014 Tex. App. LEXIS 13835, *3

occurred because Watkins’s decision to prosecute him was vindictive, asserting that the State brought
the charges in retaliation for Hill having exercised his right to petition the civil courts. His third
allegation was that he was selectively prosecuted in violation of his equal protection rights.
Hill based his allegations of prosecutorial misconduct on a series of ″facts″ that he presented in his
motion. Hill stated that it was his father’s lawyer, Michael Lynn, who filed the complaint [*4] with the
DA’s office accusing Hill and his wife of mortgage fraud. The complaint was submitted to the DA’s
office in February 2010, while the trust litigation was still pending and days after Hill’s father received
an adverse ruling in that case. The next month, Watkins received a series of campaign donations from
Jeffrey Tillotson, a law partner at Lynn’s firm. Hill asserted that neither Tillotson nor anyone at that
firm had previously donated to Watkins’s campaigns. The donations totaled $48,500, with the last
donation made five months before the Hills were indicted.
Hill also asserted that the mortgage-fraud allegations were ″highly unusual″ because the home-equity
loan was not in default and was repaid in full shortly after the loan was obtained. According to Hill,
the lender did not suffer a loss and had not complained about any wrongdoing. In addition, Hill claimed
the DA’s office did not conduct a standard investigation because it failed to interview certain
witnesses. Nor did the DA’s office notify him that indictments were being considered despite Hill’s
claim that the DA’s office had a policy of providing notice and giving the accused’s lawyers an
opportunity to address the [*5] grand jury before charges are presented.
Hill further complained that the timing of the indictments was suspect. In particular, Hill claimed the
indictments were returned two weeks before the Hills were to begin trial in a fee dispute with the
lawyers that represented them in the trust litigation, one of whom was Blue. Hill explained that after
the trust litigation settled, the Hills contested the amount of attorneys’ fees sought by Blue and the
other lawyers. The lawyers filed suit, maintaining the Hills owed over $50 million in attorneys’ fees.
Hill stated that because of the pending indictments, the Hills asserted their Fifth Amendment privilege
against self-incrimination and did not testify in the fee-dispute litigation.
Hill emphasized that Blue exchanged numerous phone calls and text messages with Watkins and his
assistant in the weeks before the indictments were returned. Hill also pointed out that Blue donated
money to Watkins’s campaign and held a social event at her home to raise money for the campaign
during that same time frame. Hill alleged that the pattern of phone calls and text messages between
Blue and Watkins revealed a ″dramatic spike″ in communications in the weeks before the indictments
[*6] were returned and that the ″heated exchange of calls″ between Blue and Watkins ended after the
indictments were announced. Further, in a deposition conducted after the conclusion of the fee-dispute
trial, Hill claimed that Blue admitted that two of those phone calls from Watkins were about the
indictments before the indictments were returned. Hill also claimed that during Blue’s representation
of the Hills in the trust litigation, Blue ″bragged″ to him about her relationship with Watkins. Hill
stressed that this was not ″idle bragging″ and that Blue has a ″very close personal, professional and
political relationship″ with Watkins as represented by Blue’s status as one of Watkins’s largest
individual donors, Blue’s pro bono representation of Watkins in connection with an unrelated lawsuit,
Blue’s $100,000 donation to SMU law school to create a scholarship in Watkins’s name, and the fact
that Watkins hired Blue and another attorney to represent Dallas County in a contingent-fee suit.
Hill finally claimed that the DA’s office ″apologized″ to the Hills on behalf of the DA’s office, and
he proclaimed that with the dismissal of the charges against his wife, the office ″effectively
Page 6 of 29
 2014 Tex. App. LEXIS 13835, *6

acknowledge[ed] the wrongfulness [*7] of those charges.″ According to Hill, the Hills’ defense
counsel met with Assistant District Attorney Deborah Smith in October 2012. Hill maintained that
during that meeting, Smith ″expressed significant concerns″ about the charges and ″stated that she
would refuse to try the case if the DA’s Office decided to go forward on any of the charges.″ Hill also
maintained that Smith said that based on her re-evaluation of the cases, she decided to recommend
dismissing certain charges against the Hills and was conducting due-diligence interviews related to the
remaining charges. Shortly after the meeting, Smith communicated that she was reassigned to another
division. Hill called this ″remarkable news″ given that Smith was in the middle of her re-evaluation
of the charges against the Hills.
Hill argued the circumstances presented by these ″facts″ constitute ″clear and appalling″ violations of
his constitutional rights and establish that the DA’s office served as a ″stalking horse″ for the interests
of (1) Hill’s father, who Hill maintained reported the allegations of mortgage fraud in retaliation for
his ″exercise of his constitutional rights in the trust litigation″; (2) Lynn, who submitted [*8] the
mortgage-fraud allegations to the DA’s office and whose law partner donated $48,500 to Watkins’s
campaign; and (3) Blue, Watkins’s friend and generous campaign contributor, who was seeking
millions of dollars in attorneys’ fees from the Hills at the time the indictments were returned. Hill
maintained that the charges ″had the desired effect″ by impairing the Hills’ ability ″to exercise their
constitutional rights to defend themselves″ in the fee-dispute litigation involving Blue.

B. Hill’s Proffer of Evidence in Support of His Motion
As support, Hill attached forty-four exhibits to his motion, most of which were unauthenticated or not
otherwise identified by affidavit testimony. Those exhibits included what appeared to be a page from
Lynn’s February 2010 complaint, various pleadings, excerpts from Watkins’s campaign finance
reports, e-mail exchanges among counsel in the trust litigation, Blue’s telephone records, a log of text
messages between Blue and Watkins and his assistant, announcements about the SMU scholarship
funded by Blue and about Watkins’s hiring of Blue to help in unrelated litigation, a printout of a 2007
Texas Lawyer article about the office’s grand jury policy, and [*9] Smith’s e-mail about her
reassignment. Hill also attached what appeared to be excerpts from (1) transcripts in the fee-dispute
litigation related to the Hills’ request for a continuance and their assertion of their Fifth Amendment
privilege and (2) deposition testimony from (a) Blue in the fee-dispute litigation in which she testified
to receiving two phone calls from Watkins about the indictments of the Hills and (b) Blue’s co-counsel
in the trust litigation, Stephen Malouf, who testified to overhearing one of those conversations.

C. The State’s Response to Hill’s Motion
The State filed a brief opposing the motion to quash and dismiss the indictments. The State argued the
trial judge lacked the authority to grant Hill’s motion because Hill failed to prove any constitutional
violation. The State also emphasized that Hill’s prosecution was not ″the product of a favored and
discontented campaign donor’s audience with the District Attorney.″ Rather, the State asserted that the
investigation into the offense began with the letter from Lynn, was investigated by an experienced
prosecutor, and the decision to pursue charges against Hill was not unusual or exceptional given that
the Specialized Crime Division [*10] of the DA’s office regularly prosecutes cases like Hill’s.
The State supported its opposition with various exhibits, including the affidavits of Assistant District
Attorneys Donna Strittmatter and Stephanie Martin. Strittmatter testified that as the assigned

Page 7 of 29
 2014 Tex. App. LEXIS 13835, *10

prosecutor within the Specialized Crime Division, she received Lynn’s February 2010 complaint and
supporting documents, alleging numerous fraudulent acts committed by Hill in connection with a loan
transaction. Strittmatter assigned the case to Martin to conduct an investigation. Martin testified that
she personally investigated the allegations against Hill and her investigation included receiving large
volumes of documents from the bank and title company. Martin also obtained deposition testimony of
Hill and others, and she spoke to legal counsel from the bank. Strittmatter confirmed that Martin
investigated the case for several months and provided updates to her as Martin reviewed the evidence.

Martin also testified that the Specialized Crime Division within the DA’s office regularly prosecutes
crimes similar to those alleged to have been committed by Hill. She explained that many of the
indictments the division obtains for the [*11] same crime involve property or credit valued at $200,000
or more. She said she personally prosecuted four mortgage-fraud cases involving circumstances where
no loss was suffered.

Both Strittmatter and Martin testified that they did not have a practice of notifying a suspect that he
is the target of a criminal investigation. Martin also stated that it was not her practice to provide a
suspect with an opportunity to be heard by the grand jury before indictment. Both also testified that
they were unaware of the fee-dispute litigation between Blue and the Hills.

D. The Trial Judge Sets the Motion to Dismiss for a Hearing

In advance of the hearing on his motion, Hill served subpoenas on various individuals from the DA’s
office, including Watkins, Moore, Martin, and Strittmatter. He also served subpoenas on Blue, Malouf,
and Charla Aldous, who was Blue’s other co-counsel representing the Hills in the trust litigation. The
State responded with motions to quash the subpoenas, raising procedural objections and arguing,
among other things, that Hill was not entitled to seek information from the individuals because Hill’s
motion to quash and dismiss the indictments was invalid. The State argued [*12] that Hill’s motion did
not allege (1) that Watkins placed Hill in an arbitrary classification in determining whether to indict
him, (2) any cognizable retaliation by Watkins, or (3) any alleged exercise of Hill’s legal rights. The
State also stressed that Hill did not ″even allege a lack of objective basis to indict.″ The State
maintained that because these infirmities were fatal to Hill’s motion to quash and dismiss the
indictments, the State could not be burdened to comply with Hill’s subpoenas.

E. The Trial Judge Grants Hill an Evidentiary Hearing

The trial judge heard argument on Hill’s motion on February 14, 2013. Although the judge stated that
she did not ″understand how [Hill was] gonna get there″ based on the type of evidence Hill explained
would be ″elicit[ed]″ and would ″come out″ in the examinations of Watkins and Blue, she granted Hill
the ″right to have a hearing to try to prove to the Court that this case was handled differently from any
other case″ that would come before the DA. The judge also determined that Hill presented prima facie
evidence of his claims and that he had a ″right to make inquiries″ to ″make [his] case.″2
2
At the time she made this determination, the judge had Hill’s [*13] motion plus the attachments to his motion, the State’s opposition
to Hill’s motion, which included various attachments and the affidavits of Strittmatter and Martin, and Hill’s brief in reply. The judge
also had the various motions to quash the subpoenas served by Hill, Hill’s opposition to those motions, and an affidavit, dated February
12, 2013, filed by Blue in support of her motion for protective order regarding the subpoena to appear at the hearing.

Page 8 of 29
 2014 Tex. App. LEXIS 13835, *13

The State asked the judge for time to appeal the ruling, arguing that Hill was not entitled to a hearing
at this point because he failed to establish a prima facie case for his constitutional claims. The State
further objected to the hearing on the basis that Hill was trying to develop evidence that he did not
have. The judge overruled the State’s objections. The State also sought mandamus relief from this
Court and a stay of the hearing from the Texas Court of Criminal Appeals. In its mandamus petition,
the State complained, among other things, about the judge’s finding that Hill established a prima facie
case.
The trial judge conducted an evidentiary hearing related to Hill’s motion to quash and dismiss the
indictments while the State’s [*14] requests for relief were pending. On March 7, 2013, the judge
signed the order dismissing the indictments with prejudice on the basis that Hill had been denied ″his
right to a full and fair hearing on his motion″ due to Watkins’s refusal to testify at the hearing. We
ultimately dismissed the State’s petition for writ of mandamus as moot on April 2, 2013.3

II.

The State’s first two issues relate to the trial judge’s decision to hold an evidentiary hearing. HN1
While we ordinarily defer to a trial judge’s decision to hold an evidentiary hearing,4 that deference is
tempered by the legal principles and standards governing evidentiary hearings as outlined below. See,
e.g., United States v. Webster, 162 F.3d 308, 334 (5th Cir. 1998) (defendant ″not automatically entitled
to an evidentiary hearing to make the required showing″).

HN2 Generally, a trial judge has only limited authority to dismiss a case without the State’s consent,
such as to remedy a constitutional [*15] violation. State v. Mungia, 119 S.W.3d 814, 816-17 (Tex. Crim.
App. 2003). And while a trial judge may dismiss an indictment where constitutional protections are not
observed, ″the dismissal of an indictment is ’a drastic measure only to be used in the most
extraordinary circumstances.’″ Id. at 817 (quoting State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App.
1995)).
A trial judge’s limited authority to dismiss an indictment stems in part from the fact that the decision
of whether to prosecute is a core executive constitutional function. United States v. Armstrong, 517
U.S. 456, 464-65, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996). Because this power is within the province
of the State, the State enjoys considerable discretion in deciding whether or not to prosecute and what
charge to file or bring to the grand jury. Id. at 464 (″In the ordinary case, ’so long as the prosecutor
has probable cause to believe that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely
in his discretion.’″) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 54 L. Ed. 2d
604 (1978)); see also Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 84 L. Ed. 2d 547
(1985) (recognizing that ″the decision to prosecute is particularly ill-suited to judicial review″); Neal
v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). As a result of that discretion, our consideration
of Hill’s claims begins with a ″presumption of regularity.″ Armstrong, 517 U.S. at 464 (courts presume
prosecutors have ″properly discharged their official duties″). That [*16] means we presume the State
3
See In re Watkins, Nos. 05-13-00298-CV, 05-13-00299-CV, 05-13-00300-CV, 05-13-00301-CV, 05-13-00302-CV, 2013 Tex. App.
LEXIS 4194, 2013 WL 1363766, at *1 (Tex. App.—Dallas Apr. 2, 2013, orig. proceeding) (mem. op.).
4
A judge’s decision to hold an evidentiary hearing is reviewed for an abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 28.01,
§ 1(2) (West 2006); see also id. art. 27.02(1).

Page 9 of 29
 2014 Tex. App. LEXIS 13835, *16

exercised its prosecutorial responsibilities in good faith and in compliance with the Constitution. Id.
at 465-66; Neal, 150 S.W.3d at 173. The burden on the defendant to show that a particular prosecutorial
decision was predicated on constitutionally impermissible grounds is high, requiring him to prove his
claim with ″clear evidence.″ Armstrong, 517 U.S. at 465; Webster, 162 F.3d at 334; see also Garcia
v. State, 172 S.W.3d 270, 274 (Tex. App.—El Paso 2005, no pet.) (stating that an appellant ″claiming
selective prosecution must come forth with ’exceptionally clear evidence’ that the prosecution was
initiated for an improper reason″).

HN3 The significance of the presumption courts afford prosecutors carries over to a defendant’s
request for an evidentiary hearing or discovery. See Webster, 162 F.3d at 334 (″A defendant is not
automatically entitled to an evidentiary hearing to make the required showing.″); see also Armstrong,
517 U.S. at 464 (noting that because prosecutors are afforded a ″background presumption,″ the
necessary showing ″to obtain discovery should itself be a significant barrier to the litigation of
insubstantial claims″). That is, in light of the presumption of prosecutorial regularity, a defendant who
claims his constitutional rights were violated by some form of prosecutorial misconduct must make out
a prima facie case of his claims before he [*17] is entitled to an evidentiary hearing or discovery. See
In re United States, 397 F.3d 274, 284 (5th Cir. 2005); Webster, 162 F.3d at 334. To do this, a defendant
must ″present facts ’sufficient to create a reasonable doubt about the constitutionality of [his]
prosecution’ . . . .″ Webster, 162 F.3d at 334 (quoting United States v. Jennings, 724 F.2d 436, 445-46
(5th Cir. 1984)). The ″facts″ required to cast doubt about the constitutionality of the prosecution and
to rebut the presumption the State acted in good faith such that a person is entitled to an evidentiary
hearing (or even discovery) must be more than allegations. See Jennings, 724 F.2d at 445-46 (motion
containing broad, generalized allegations did not offer facts to the court to warrant evidentiary
hearing); see also Wade v. United States, 504 U.S. 181, 186, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992)
(stating that ″generalized allegations of improper motive″ are not enough to entitle a defendant to a
remedy, discovery, or evidentiary hearing); United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008)
(″Generalized allegations of improper motive do not disturb the presumption of regularity.″). Rather,
a defendant’s factual allegations must be accompanied by evidence that tends to establish his
constitutional claims. See Jennings, 724 F.2d at 445-46 (after reviewing affidavit and statement offered
in support of motion to quash, court unable to conclude Jennings presented facts sufficient to create
reasonable doubt about the selectivity of his prosecution). Indeed, the standard for [*18] obtaining
discovery on claims like selective or vindictive prosecution requires ″some evidence tending to show
the existence of the essential elements″ of the claimed violations. Armstrong, 517 U.S. at 468; see also
In re United States, 397 F.3d at 284 (prima facie case ″requires the criminal defendant to bring forward
some evidence″) (emphasis added). This standard is ″rigorous″ and complements the ″rigorous
standard″ for proving constitutional violations in the decision to prosecute. Armstrong, 517 U.S. at 468.

III.
In its first issue, the State complains about the documents Hill proffered with his motion. The State
argues that Hill needed to present evidence to support his claims before he was entitled to an
evidentiary hearing and, because Hill ″simply made unsworn allegations″ in his motion and ″attached
a stack of unauthenticated documents″ as exhibits, he basically provided no evidence to support his
claims. The State explains that, under Armstrong, the judge had to presume that Watkins acted in good
faith until Hill presented clear evidence to the contrary and the presentation of such evidence was a
condition that must be met before Hill was entitled to an evidentiary hearing. The State points out that

Page 10 of 29
 2014 Tex. App. LEXIS 13835, *18

even the trial judge advised Hill that the ″unauthenticated, [*19] un-introduced documents attached to
his motion″ were not evidence.5 Hill responds that the State did not preserve its complaint that Hill’s
attachments to his motion suffered from authentication or hearsay problems because the State did not
object on those bases in the trial court. Hill also asserts the State stipulated to the authenticity and
admissibility of the evidence attached to the motion at the March 7 evidentiary hearing.

While we are troubled by the unsworn allegations in and authenticity of the documents attached to
Hill’s motion,6 we need not resolve whether the State preserved its complaint about these documents7
because regardless of the contentions the State raised in its first issue, we conclude Hill did not meet
the standard required to warrant an evidentiary hearing even when we consider the documents attached
to Hill’s motion. Before Hill is entitled to an evidentiary hearing, he must make a prima facie showing
for his alleged constitutional claims with evidence capable of dispelling [*20] the presumption that the
prosecution of him was in good faith and in compliance with the Constitution. See Armstrong, 517 U.S.
at 465; In re United States, 397 F.3d at 284. Hill’s failure to do so means the trial judge erred in
granting Hill an evidentiary hearing, which resulted in the dismissal of the indictments. This is the
State’s second issue.

IV.

This case came to us with a large record. But in deciding the issue of whether Hill was entitled to an
evidentiary hearing to try to prove his allegations, there is no need to look beyond what the trial judge
had in her hands at the time she decided that Hill met his initial burden of proof related to his
constitutional claims. In particular, we consider Hill’s motion and the attached exhibits to determine
whether he made a prima facie case for each of [*21] his claims such that he was entitled to an
evidentiary hearing.

In his motion to quash and dismiss the indictments, Hill claimed he was deprived of his right to a
disinterested prosecutor and that he had been vindictively and selectively prosecuted. As proof of the
alleged constitutional violations, Hill emphasized the following in his motion: (1) political contributions
from a lawyer associated with Hill’s father in the months after the February 2010 complaint and five
months before the indictments were returned and a donation by Blue less than a month before the
indictments were returned; (2) that Blue hosted a fundraiser for Watkins in the month before the
indictments were returned; (3) the ″unusual″ nature of the charges against him; (4) the lack of notice
to him that indictments were being considered; (5) the suspect timing of the indictments in that they
were returned just before the fee-dispute trial involving Blue, which Hill claimed prevented him and
his wife from testifying in that trial; (6) the ″heated exchange″ of communications with Watkins and
his office in the weeks leading up to the Hills’ indictments and ending after the indictments were
returned; (7) Blue’s discussion [*22] about indictments with Watkins in the time before they were
5
The judge’s statement was made at a hearing conducted on March 4, 2013. Specifically, the judge alerted Hill’s defense counsel that
the ″exhibits on [Hill’s] motions [were] not evidence.″
6
In our view, the evidence accompanying a motion alleging prosecutorial misconduct must be competent evidence; the evidence must
be properly authenticated and in an otherwise admissible format. Affidavits or sworn or other reliable witness statements are appropriate
to establish a fact.
7
The State argues it had no reason to object before the commencement of the hearing because Hill had not yet offered the documents
attached to his motion as evidence.

Page 11 of 29
 2014 Tex. App. LEXIS 13835, *22

returned; (8) Blue’s comment made in her deposition that she would have no reason to discuss
indictments with Watkins after they were returned; (9) Blue’s close relationship with Watkins; (10)
defense counsel’s meeting with Smith about the charges; and (11) the fact that charges against Hill’s
wife were dismissed. Hill contends on appeal that these facts cast doubt on the constitutionality of the
prosecution and not only entitle him to an evidentiary hearing but also establish a prima facie showing
of prosecutorial misconduct.

A. Hill’s Allegation He Was Deprived of the Right to a Disinterested Prosecutor

Hill first alleged in his motion that the indictments should be dismissed because he was deprived of
the right to a disinterested prosecutor. HN4 The absence of an impartial and disinterested prosecutor
can violate a defendant’s due process rights. In re Guerra, 235 S.W.3d 392, 429 (Tex. App.—Corpus
Christi 2007, orig. proceeding). ″Partiality″ in this context is like ″a conflict of interest in the sense that
the prosecutor has a personal interest or stake in the outcome of the criminal prosecution.″ Id. at 430.
It also refers to any interest that conflicts with the prosecutor’s duty to seek justice. Id. Thus, the due
[*23] process rights of a defendant are violated ″when a prosecuting attorney who has a conflict of
interest relevant to the defendant’s case prosecutes the defendant.″ Id. at 429. The ″mere potential or
perceived conflict of interest″ is not sufficient to establish a due process violation. Id. at 430. Similarly,
mere allegations of wrongdoing do not suffice. Id.

Hill alleged in his motion that the influence exercised upon Watkins by Hill’s father, Lynn, and Blue
deprived him of due process. He explained that Watkins had ″a financial stake in the prosecution of
the Hills″ because indicting them benefited Blue (who was involved in a dispute with the Hills over
attorneys’ fees) and Tillotson (who also was a major campaign contributor), ″which in turn benefited″
Watkins. Hill claimed Blue’s influence and involvement with the indictment process were demonstrated
by Blue’s two telephone conversations with Watkins before the indictments were returned and the
pattern of phone calls and text messages exchanged between Blue and Watkins (and others in the DA’s
office) in the weeks before the indictments were returned.

We disagree with Hill’s assertion that his motion and attachments demonstrate that Watkins’s decision
[*24] to prosecute Hill was influenced by any wrongdoing. The documents submitted with Hill’s
motion show that Blue represented Watkins on a pro bono matter and that she is friends with him and
others in the DA’s office. She testified in her deposition that she received a phone call from Watkins
″shortly before the indictments came down.″ Her recollection of the phone call was that Watkins said
″one or two sentences about the indictments,″ something like, ″there could be an indictment or are you
still interested in the indictments.″ She testified that she responded by telling Watkins that she did not
represent the Hills and ″it would be inappropriate for [her] to talk about it.″ Blue added that she later
received another phone call from Watkins during which Watkins ″mentioned the Hills.″ Blue reminded
Watkins that she no longer represented the Hills so there was nothing she could talk about.8 Her
recollection of her response to Watkins about the indictments was affirmed by Malouf, who testified
8
In the February 12, 2013 affidavit [*25] Blue filed in support of her motion for protective order regarding the subpoena to appear
at the hearing, Blue testified that after she no longer represented the Hills, she received two phone calls from Watkins wherein ″at the
very beginning of the conversations, District Attorney Watkins used the word ’Hill’ or ″Hills″ (and in one of the conversations I recall
he also used the word ’indictment’ or ’indict’).″ She testified that ″[o]n both occasions, [she] immediately stopped the conversation and
told Mr. Watkins that [she] no longer represented [Hill or his wife] and could not talk to Mr. Watkins about the Hills.″

Page 12 of 29
 2014 Tex. App. LEXIS 13835, *25

in his deposition that he overheard Blue tell Watkins that she no longer represented the Hills, so she
could not talk to him about the investigation of the Hills.

Hill maintained that Blue’s testimony about the two phone calls was not credible and reflected
improper communications between Watkins and his friend and political contributor. He further claimed
there could be ″no benign explanation″ for Watkins to call Blue about the indictments or the Hills
during a time when Blue was involved in a fee dispute with them. But before testifying about the phone
calls, Blue also described a meeting she had with Assistant District Attorney Terri Moore when she still
represented the Hills. Blue said she discussed the potential for charges against [*26] the Hills with
Moore and explained that she told Moore that this ″was a family fight.″9 Hill’s motion does not
mention this meeting.

Other than the two phones calls testified to by Blue, Hill presented nothing to show the substance of
the text messages or other phone calls exchanged between Blue and Watkins in the time leading up to
the indictments. Hill’s arguments about their content amount to speculation. Absent evidence regarding
the substances of the communications, Hill’s characterization about the timing of the text messages and
phone calls does not necessarily suggest the communications were related to the indictments [*27] as
opposed to other legitimate purposes. Again, Hill emphasized throughout his motion that Blue had a
personal and professional relationship with Watkins for many years. It is possible their communications
encompassed a multitude of topics. Because of that relationship, contact with Watkins cannot be
considered unusual.10

Similarly, other than Hill’s speculation that the timing of Blue’s campaign donations and fundraiser
were suspect, Hill did not present any evidence that Blue’s status as a political patron related to the
indictments. As Hill pointed out in his motion, Blue had been a contributor and supporter of Watkins
since 2007, well before her fee dispute with Hill. Hill also emphasized that Watkins announced his
re-election campaign in Blue’s house in November 2009. But this merely supports the fact that Blue
had a long-term relationship with Watkins, not that Blue’s political contributions related [*28] to the
indictments. In fact, Blue’s representation of the Hills in the trust litigation did not begin until
November 2009. Further, Hill’s accusation that Tillotson’s campaign contributions in 2010 influenced
Watkins’s decision to prosecute Hill is not supported by any evidence.

B. Hill’s Allegation He Was Vindictively Prosecuted

Hill also sought dismissal of the indictments on the ground that the prosecution was initiated in
retaliation for having exercised his right to petition the civil court in two cases: the trust litigation and
the fee-dispute trial. HN5 ″Prosecutorial vindictiveness″ refers to a situation in which the State acts
against a defendant by bringing criminal charges ″in retaliation for the defendant’s exercise of his legal
9
Blue testified to her meeting with Moore in her February 12 affidavit. Specifically, Blue testified that in the meeting with Moore, she
recommended that the Hills not be indicted. She described Moore as ″non-committal″ and testified that Moore provided no response to
the recommendation. Blue also testified that she first learned the DA’s office was investigating the Hills by reading a May 2010 D
Magazine article. She said she later learned about the formal complaint sent by Lynn in February 2010 and clarified that she did not
participate in preparing that complaint.
10
Hill also claimed that the communications ceased ″almost completely in the days and weeks″ after the indictments were publicly
announced. But the phone records attached to Hill’s motion end on April 30, 2011. Hill does not provide any records after that date to
support this allegation.

Page 13 of 29
 2014 Tex. App. LEXIS 13835, *28

rights.″ Neal, 150 S.W.3d at 173. A prosecutorial action is vindictive if it is designed to ″penalize a
defendant for invoking legally protected rights.″ United States v. Meyer, 810 F.2d 1242, 1245, 258 U.S.
App. D.C. 263 (D.C. Cir. 1987).

A defendant may demonstrate prosecutorial vindictiveness by showing actual vindictiveness, which
requires him to present objective evidence of the violation. United States v. Goodwin, 457 U.S. 368,
380-81, 102 S. Ct. 2485, 73 L. Ed. 2d 74 & n.19 (1982); Neal, 150 S.W.3d at 173; see also United
States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). Or, in certain circumstances, the defendant may
rely on a presumption of vindictiveness, which requires him to present facts showing the realistic
likelihood [*29] of vindictiveness, forcing the State to present objective evidence justifying the
prosecutorial action. Meyer, 810 F.2d at 1245; see also Neal, 150 S.W.3d at 173; United States v.
Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before
trial, the defendant ″must affirmatively show through objective evidence that the prosecutorial conduct
at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome
of the case or an attempt to seek self-vindication.″).11

In his motion, Hill argued that for a claim for vindictive prosecution, he was required to show that (1)
″the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the
charges by another with animus such that the prosecutor could be considered a ’stalking horse’″ and
(2) ″he would not have been prosecuted except for the animus.″ United States v. Koh, 199 F.3d 632,
640 (2d Cir. 1999). Hill alleged that the decision to prosecute him was prompted by his father’s anger
after receiving an adverse ruling in the trust litigation and by the animus of Blue in the fee-dispute
litigation. He also maintained that the

timing, circumstances, and unusual if not unprecedented nature of the Hill indictments make
abundantly clear that the real motivation of these indictments was to benefit [Watkins’s]
prolific campaign contributor [his father’s lawyer’s law partner], and to assist [Watkins’s]
friend and benefactor, [Blue] by impairing the Hills’ ability to contest [Blue’s] enormous fee
claims.

He claimed such animus was demonstrated by the improprieties inherent in the indictments [*31] (such
as his denial of any pre-indictment notice or opportunity to be heard by the grand jury), the
″unprecedented nature″ of the charges, and Hill’s belief that the DA’s office did not conduct a thorough
investigation before indicting him.

That the decision to prosecute was prompted by his father’s anger is not supported by any evidence
in the record. Hill’s argument speculates as to the motivations of his father’s attorney in sending the
DA’s office the February 2010 complaint and of the timing of the law partner’s donations to Watkins’s
11
The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn
between pretrial and post-trial prosecutorial vindictiveness. We will assume without deciding that it does because Hill did not provide
any direct proof of vindictiveness or sufficient circumstantial proof to warrant a presumption of vindictiveness. ″There is no presumption
of vindictiveness if in the context of the entire proceedings ’any objective event or combination of events in those proceedings should
indicate to a reasonable minded defendant that the prosecutor’s decision . . . was motivated by some purpose other than a vindictive desire
to deter or punish . . . .’″ Saltzman, 537 F.3d at 360 (quoting United States v. Wells, 262 F.3d 455, 466-67 (5th Cir. 2001)). Again, even
if the defendant establishes [*30] a ″realistic likelihood of vindictiveness,″ the State ″still has an opportunity to proffer legitimate,
objective reasons for its conduct.″ Id. (citing Goodwin, 457 U.S. at 374).

Page 14 of 29
 2014 Tex. App. LEXIS 13835, *31

campaign, but this speculation is not evidence of genuine animus. See, e.g., United States v. Bucci, 582
F.3d 108, 114 (1st Cir. 2009) (noting that HN6 ″evidence of suspicious timing alone does not indicate
prosecutorial animus″) (quoting Cooper, 461 F.3d at 856). Nor does it support an allegation that he
″would not have been prosecuted except for the animus.″ Koh, 199 F.3d at 640.
In addition, Hill proffered no actual evidence related to improprieties inherent in the indictments, his
claim about the ″unusual″ or ″unprecedented″ nature of the charges, or his belief that the indictments
were not thoroughly investigated. Hill’s only attempt at proving he was denied notice of the possible
charges and access to the grand jury was by attaching an unauthenticated [*32] 2007 article that
described the DA’s office having such a policy. Hill did not present any evidence that such notice and
access was actually the policy of the DA’s office or its specialized crime division at the time or that
notice or that grand jury access had been provided to other defendants but denied as to him. Martin,
a specialized crime prosecutor, stated in her affidavit that her regular practice did not include providing
notice to an accused of a contemplated charge. Further, the record showed that the Hills knew about
the potential for indictments. In May 2010, while Blue still represented the Hills in the trust litigation,
D Magazine published an article questioning whether the DA’s office would go after the Hills for
mortgage fraud.12 Blue testified in her deposition that after she learned about the potential
investigation, she met with Moore and recommended that the Hills not be indicted.

Although Hill alleged that Smith communicated her ″concerns″ about the [*33] charges during a
conversation with his counsel, he provided no evidence to show that any statements were actually
made by Smith. Moreover, other evidence in the record shows that the DA’s office did, in fact,
investigate the allegations. For example, in seeking a continuance in the fee-dispute litigation after the
indictments were returned, counsel for the Hills stated that the DA’s office was producing ″thousands
of pages″ of criminal discovery that needed review before the Hills could assess their position in the
fee-dispute trial. In her affidavit filed with the State’s response to Hill’s motion, Martin also attested
to the scope of her investigation, which spanned several months and included receiving documents
from various sources and talking to the bank’s legal counsel.
Finally, Hill claimed that the DA’s office was motivated to bring charges to impair the Hills’ ability
to contest Blue’s fee claims in the fee-dispute litigation as a way to curry favor with a political
contributor. Yet the record shows that the federal judge in the fee-dispute litigation would not have
been asked to draw a negative inference to the extent that the Hills were forced to invoke their Fifth
Amendment privilege. [*34] The federal judge also recognized that because extensive discovery
including depositions had already occurred before the indictments were returned, the ″horse [was]
already out of the barn.″
In short, other than Hill’s belief that the DA’s office served as a ″stalking horse″ for others, Hill
presented no evidence to support his conclusion and could only speculate as to the nature of the
mortgage-fraud charges and how the charges were investigated within the DA’s office. Hill’s
speculation is not evidence of vindictive prosecution. Cf. Bucci, 582 F.3d at 114 (″To obtain discovery,
[the defendant] must do more than simply ’identify a potential motive for prosecutorial animus’″; ″[h]e
must connect any vindictive animus to those making the challenged charging decisions in his case.″)
(quoting United States v. Sanders, 211 F.3d 711, 718 (2d Cir. 2000)).
12
In the February 14, 2013 hearing, counsel for the Hills told the trial judge that Hill had been aware that a case had been presented
to the DA’s office but that Hill was unaware that the case was being taken seriously.

Page 15 of 29
 2014 Tex. App. LEXIS 13835, *34

C. Hill’s Allegation He Was Selectively Prosecuted
Hill’s third allegation was that the indictments should be dismissed because he was denied equal
protection under the law when he was prosecuted under circumstances that do not normally lead to
criminal prosecution and when he was denied the benefit of pre-indictment notice.

HN7 A selective prosecution claim is an assertion that the State brought charges ″for reasons forbidden
by [*35] the Constitution.″ Armstrong, 517 U.S. at 463-64. A selective-prosecution claim draws on
″ordinary equal protection standards″ and requires a defendant to prove the existence of purposeful
discrimination. Id. at 465; see also Matney v. State, 99 S.W.3d 626, 628 (Tex. App.—Houston [1st Dist.]
2002, no pet.). To make out a prima facie case, the defendant must first show that he has been singled
out for prosecution while others similarly situated and committing the same acts have not been
prosecuted. Matney, 99 S.W.3d at 628. He must also show that the State’s discriminatory selection of
him for prosecution was invidious or in bad faith. Id.; see also Gawlik v. State, 608 S.W.2d 671, 673
(Tex. Crim. App. 1980).
Hill’s allegations fail to present a prima facie case that he was selectively prosecuted. He did not
present any evidence that he was singled out for prosecution under circumstances that do not normally
lead to prosecution. Nor did he offer any evidence that he was treated differently because he was
denied pre-indictment notice of the contemplated charges and the opportunity for his lawyer to present
his views to the grand jury in contravention of what Hill claimed is the DA’s office’s ″longstanding
practice.″ His allegations about the DA’s office’s motivations for prosecuting him amount to
speculation with no credible evidence to support his theories.

V.

HN8 There is an evidentiary [*36] threshold that must be met by the defendant before he is entitled
to an evidentiary hearing on his claims that he was prosecuted in violation of his constitutional rights.
See In re United States, 397 F.3d at 284. That burden requires a defendant to do more than make
unsupported allegations or speculative inferences about an improper motive. See Jennings, 724 F.2d at
445-46. Stated another way, before a defendant gets to make inquiries into the State’s decision to
prosecute, the defendant must support his allegations with evidence that tends to establish his
constitutional claims. See id.; see also Armstrong, 517 U.S. at 468. The record before us shows that
the trial judge granted Hill an evidentiary hearing so that Hill could ″try to prove″ that he was
prosecuted in violation of his constitutional rights. By conducting this evidentiary hearing before Hill
met the evidentiary threshold, the judge turned the standard around and put the burden on the State to
show why Watkins was not operating under a conflict of interest and how the prosecution of Hill was
not vindictive or selective.
We conclude Hill did not make the proper showing sufficient to establish a prima face case of his
alleged constitutional violations. Because Hill did not meet his burden, we also conclude the [*37] trial
judge erred in conducting a hearing on Hill’s motion to dismiss. Consequently, the charges against Hill
should not have been dismissed. We resolve the State’s second issue in its favor. Based on our
resolution of the State’s second issue, we need not address the State’s remaining issues. TEX. R. APP.
P. 47.1.
We vacate the trial judge’s order dismissing the indictments in these cases and remand the cases to the
trial court with instructions to reinstate the indictments against Hill.

Page 16 of 29
 2014 Tex. App. LEXIS 13835, *37

/Ada Brown/
ADA BROWN
JUSTICE
Bridges, J., dissenting.
Do Not Publish

TEX. R. APP. P. 47.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00180-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00182-Q against Albert G. Hill III.

Judgment entered [*38] this 29th day of December, 2014.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00183-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

JUDGMENT
Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00191-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

Dissent by: DAVID L. BRIDGES

Dissent

DISSENTING OPINION
Dissenting Opinion by Justice Bridges
Page 17 of 29
 2014 Tex. App. LEXIS 13835, *38

I respectfully dissent from the majority’s opinion and judgment because I would conclude the trial
court did not abuse its discretion in conducting a hearing on Hill’s motion to dismiss and dismissing
with prejudice the indictments against Hill.
No appellate court in Texas has ever ruled that a trial court erred in conducting a hearing on a
defendant’s motion to dismiss charges on the basis they violated his constitutional rights. [*39] See,
e.g., State v. Dinur, 383 S.W.3d 695, 698-99 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (trial court
conducted hearing on appellant’s motion to dismiss charges against him on the basis of, among other
things, selective prosecution); Rodriguez v. State, 283 S.W.3d 465, 471-72 (Tex. App.—San Antonio
2009, pet. dism’d) (trial court conducted hearing on appellant’s claim, similar to claim of selective
prosecution, that trial court denied him equal protection, due process, equity, and fairness when it
dismissed a virtually identical bond forfeiture case against another defendant and his surety but did not
do the same for appellant); Galvan v. State, 988 S.W.2d 291, 293 (Tex. App.—Texarkana 1999, pet.
ref’d) (trial court conducted hearing on appellant’s motion to quash indictment on basis he was
selectively prosecuted for bail jumping due to his race and nationality); Amaya v. State, No.
08-11-00265-CR, 2013 Tex. App. LEXIS 12561, 2013 WL 5593110, at *7-9 (Tex. App.—El Paso Oct.
9, 2013, no pet.) (not designated for publication) (trial court conducted pretrial hearing on appellant’s
motion to dismiss alleging prosecutorial vindictiveness in that prosecutor offered appellant prison time
on a mandatory probation case following a motion to suppress hearing at which appellant did not
prevail); Roman v. State, No. 08-11-00057-CR, 2012 Tex. App. LEXIS 8849, 2012 WL 5287933, at *4-5
(Tex. App.—El Paso Oct. 24, 2012, no pet.) (not designated for publication) (trial court conducted
hearing on appellant’s motion to quash ″due to selective/vindictive prosecution″ supported only by
copy of information [*40] charging her with harassment, copy of citizen complaint form she filed
against detective, and track and confirm receipt from United States Postal Service).

Under article 28.01 of the code of criminal procedure, a trial court may set any criminal case for a
pretrial hearing at which it must determine ″preliminary matters,″ including a claim of prosecutorial
vindictiveness. See Neal v. State, 150 S.W.3d 169, 176 (Tex. Crim. App. 2004). The trial court’s
decision to conduct an evidentiary hearing and dismiss the indictments with prejudice is reviewed for
an abuse of discretion. See State v. Terrazas, 970 S.W.2d 157, 159 (Tex. App.—El Paso 1998), aff’d,
4 S.W.3d 720 (Tex. Crim. App. 1999).
Hill’s motion to quash and dismiss the indictments was based on the following facts: Hill and his father
were involved in ″a hotly-contested federal lawsuit involving multi-billion dollar trusts.″ In February
2010, the federal judge presiding over the case entered an order finding that Hill’s father had testified
falsely and submitted evidence in bad faith. Four days later, Hill’s father, through his lawyer, submitted
to the Dallas County District Attorney’s Office a letter accusing Hill and his wife of mortgage fraud.
In the months that followed, a law partner donated a total of $48,500 in three contributions to the
re-election campaign of Dallas District Attorney Craig Watkins. No member of this firm [*41] had
previously donated to Watkins’s campaign.
In May 2010, Lisa Blue saw a magazine article raising the question of whether the district attorney’s
office would ″go after″ Hill ″for shenanigans related to the house in which they live.″ The article
described the circumstances surrounding the same $500,000 loan that had been reported to the district
attorney. After Blue learned the investigation of Hill’s alleged criminal conduct had been leaked to the
press, she had a meeting with Terri Moore, First Assistant District Attorney at the time. Blue
recommended that Hill not be indicted. Watkins was not present at the meeting.

Page 18 of 29
 2014 Tex. App. LEXIS 13835, *41

Also in May 2010, the federal trust litigation settled. Following the settlement, Blue and her colleagues
had a conflict with Hill over payment of more than $50 million in attorneys’ fees attributed to Blue’s
six-month representation of Hill. Because of the indictments, Hill felt he could not testify and invoked
his Fifth Amendment rights in the federal proceeding.

On January 20, 2011, Blue and Watkins met for dinner. Also in January 2011, while Blue was with
Steve Malouf, Watkins called Blue and said, ″There could be an indictment1 or are you still interested
in the indictments or . [*42] . . .″ On another occasion, the date of which Blue could not remember,
Watkins called Blue and again ″mentioned the Hills.″ Blue said, ″Craig, remember, I don’t represent
the Hills, so I can’t -- there’s nothing that I could talk about.″ Another lawyer was with Blue when she
received this second call.

Blue and Watkins exchanged numerous phone calls in March 2011. On March 3, 2011, Blue met with
Watkins to take publicity photos in connection with a $100,000 donation Blue made in his honor to
SMU law school in 2010. On March 9, 2011, Blue had a fundraiser for Watkins at her house and
contributed $5000 to Watkins. On March 22, 2011, Blue was deposed in connection with her fee
dispute with Hill. On March 30, 2011, Blue and Watkins again met for dinner. On March 31, 2011, the
Hills were indicted on charges of mortgage fraud. The indictments were made public two weeks before
the $50 million fee dispute trial.

On October 12, 2012, approximately eighteen months after the Hills were indicted, the Hills’ defense
counsel met with Assistant District Attorney Deborah Smith who described a ″reevaluation″ [*43] of
certain cases and said she had already decided to recommend dismissing certain charges against both
Hill and his wife. Smith ″expressed significant concerns about the cases against the Hills, made clear
that she had no role in obtaining the indictments, [and] said that the interviews of witnesses she was
conducting should have been conducted much earlier.″ Shortly after the meeting, the DA moved to
dismiss all charges against Hill’s wife ″in the interest of justice.″ On October 22, 2012, in response to
a follow-up email from Hill’s counsel, Smith wrote that she had been reassigned to prosecute animal
cruelty cases.

On February 14, 2013, the trial judge conducted a hearing on Hill’s motion to dismiss. The trial judge
stated she did not take her authority to dismiss a case filed by the prosecutor lightly and emphasized
the limited nature of that authority. The trial judge, over the State’s objection, called Blue as a witness.
Blue took the stand and invoked her Fifth Amendment right on all questions.

Hill’s attorney called Watkins to the stand. Counsel for the State objected on the basis of lawyer/client
privilege. Specifically, counsel argued the State of Texas was represented by the district attorney, [*44]
and the State therefore had a right to assert the privilege to prevent its lawyers from disclosing ″any
other fact which came to their knowledge by virtue of their representation of the State.″ Counsel for
the State argued conversations between Blue and Watkins were work product because they would
″reveal [Watkins’s] mental impression.″ The trial judge instructed the State to ″bring Mr. Watkins
down.″

An assistant district attorney entered the courtroom and stated she had spoken to Watkins, Watkins was
in the office, but Watkins was not going to make himself available. The trial judge asked if Watkins
1
In 2014, the Dallas County District Attorney’s website said 100,000 cases are processed per year.

Page 19 of 29
 2014 Tex. App. LEXIS 13835, *44

was informed that the questions were going to be limited to his discussions with Blue. The assistant
district attorney stated she was not aware of that and further stated she knew ″[Watkins] to be ill,″ and
he was not ″in a condition to be able to testify in this matter.″ Following further discussion as to the
extent of Watkins’s illness and the fact that Watkins was under subpoena to testify, the trial judge
granted a continuance.

On March 7, 2013, the trial judge conducted a hearing at which Blue’s counsel stated Blue’s position
that ″she would assert her Fifth Amendment privilege today just as she [*45] had before.″ Hill called
Watkins as a witness and, after a private consultation with counsel, Watkins took the stand and refused
to answer any questions ″because of [his] right as an attorney to have the privilege and to protect [his]
work product.″ Following a discussion of whether any privilege had been waived by providing
affidavits of the people who worked for Watkins, the trial judge ordered Watkins to answer the
questions. Watkins refused, and the trial judge held him in contempt.

Hill was prepared to call witnesses to testify regarding the authenticity of the exhibits attached to his
motion to dismiss and certain other documents. Although it is not clear which exhibits were at issue,
counsel for the State agreed he was stipulating to the authenticity of the exhibits.

Terri Moore, a former Dallas assistant district attorney, testified Donna Strittmatter and Stephanie
Martin, two other assistant district attorneys, came to Moore and asked for permission to use the
resources of the office to investigate Hill. Moore inquired whether Hill’s father had made the
allegations against him, and Strittmatter and Martin told Moore ″there was a lawsuit between the father
and the son.″ Moore [*46] said, ″I’m sure dad is trying to get some kind of strategic advantage over
his son in the lawsuit, so be very, very skeptical of whatever he may have told you.″ Moore added, ″Be
careful, because [Hill’s father] is just using the office . . . .″

Strittmatter testified she attended the pitch session at which Watkins was present. Watkins did not say
anything about conversations with Blue regarding the Hills. Strittmatter testified Watkins’s only
involvement in preparing the case for the grand jury was that he was present at the pitch session. The
pitch session was in January 2011, and the case was presented to the grand jury approximately two and
a half months later.

Strittmatter testified Moore told her ″to be suspicious of the complaint″ she received from Hill’s father.
Strittmatter later learned the trust ″offered the bargain over a nonprosecution affidavit in this case″ so
that Hill would drop his claim for the assets of the trust. In investigating the case, Strittmatter
discovered the ″title agency missed something on the abstract of the property.″ When asked if she was
aware whether the Dallas County District Attorney’s Office had ″indicted a mortgage fraud case where
the loan was [*47] fully collateralized, paid as expected, and repaid in full and there was no complaint
from the bank, but it was indicted anyway,″ Strittmatter answered she ″was not aware because [she
had] not been the mortgage fraud prosecutor.″ When asked the same question again, Strittmatter
answered, ″I don’t know, but that doesn’t mean it hasn’t happened.″ When the trial judge asked if there
was a way to identify similar cases via computer, Strittmatter answered, ″We have a computer, but it
wouldn’t say that much detail, Your Honor. It’d really be the — the prosecutors’ individual memory.″

Martin testified that, on February 22, 2010, Strittmatter called her into a meeting with Lynn and gave
her a copy of a complaint alleging Hill had stolen from the trust ″because eighty percent of the house

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was put into a mortgage.″ Martin denied having ″concerns about a case in which the bank was not the
one that complained about the alleged fraud.″ Martin testified Moore told her to be suspicious of Hill’s
father. Martin testified that, from the moment she got the complaint and reviewed the exhibits, she
thought she had a good case and immediately started requesting original documents.

Martin invited Watkins [*48] to the pitch session because the case against Hill ″would get some media
attention, possibly national media attention.″ Martin testified that, if Watkins had told her ″this is too
much of a hot potato; let’s just let it go,″ she would not have put the case before the grand jury.

On redirect examination, Hill’s counsel showed Martin notes Martin identified as ″two different days
where I wrote notes about having talked to David Pickett.″ The first date was September 8, 2010, and
noted the following:

David Pickett calls all the time. Investigation is slowly going, and I told him that. Today he
wanted a definite timeline. I told him I can’t give you a timeline. I’ve got things to do on the
case and haven’t done them because I’m getting ready for trial. He said Trust is actual victim
after I told him bank really isn’t interested in prosecuting. Told him that in research I’d done,
didn’t see how I could prove his criminal case at this time. He said he sent -- gave all that stuff
to me. I said I’d go back and look, but getting ready for trial. He then sends e-mail. I showed
it to Chief D. Strittmatter, and then she said to show to First Assistant Terri Moore so she would
have all info, if needed. [*49] Took to Terri Moore, and she said, okay, in a few weeks call him
to discuss the matter.

Upon further questioning, Martin testified the bank’s general counsel said ″we wouldn’t have filed a
complaint because we -- the loan got repaid, but she would do whatever [Martin] wanted her to do as
far as prosecuting the case because, by law, she has to.″ The trial judge, reading from Martin’s notes,
stated ″and then it goes on to say, I’ve talked to David Pickett multiple times since then. He was okay
with not indicting for the Trust as a victim because the bank is actual -- who was defrauded under the
fraud statutes and going forward with indictments.″ In response to questioning, Martin testified the part
of her note the trial judge read was ″probably″ added after Hill filed his motion to dismiss for
prosecutorial misconduct.

Thus, as the trial judge summarized the situation, the pitch session was held only because the case
against Hill was a potentially high publicity case; Martin invited Watkins to the pitch session and
would not have gone forward with the case against Hill without Watkins’s approval; the only person
who could know Watkins’s motivations was Watkins and, maybe, Blue; and neither [*50] Watkins nor
Blue were testifying. The trial judge gave Watkins another opportunity to come down and testify and
took a brief recess. When the hearing recommenced, counsel for the State told the trial judge Watkins
would not testify.

Following the presentation of evidence, the trial judge made an oral finding that, ″because of the failure
of Mr. Watkins to testify in this hearing, the Defendant has been denied his right to have a meaningful
hearing on his Motion to Dismiss.″ The trial judge then dismissed the cases. This appeal followed.

In its first two points of error, the State argues the trial court abused its discretion by granting Hill an
evidentiary hearing and dismissing the indictments against him because (1) Hill tendered no evidence

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to support his request and (2) the facts Hill alleged failed to establish a constitutional violation.
Specifically, the State challenges the trial judge’s decision to hold an evidentiary hearing on Hill’s
claims of prosecutorial misconduct in its first two issues. The State first complains about Hill’s proffer
of evidence in support of his motion. The State argues that Hill needed to present evidence to support
his claims before he was entitled [*51] to an evidentiary hearing and, because Hill ″simply made
unsworn allegations″ in his motion and ″attached a stack of unauthenticated documents″ as exhibits,
he basically provided no evidence to support his central allegations. The State asserts that, under
United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996), the judge had
to presume Watkins acted in good faith until Hill presented clear evidence to the contrary, and the
presentation of such evidence was a condition that must be met before receiving an evidentiary
hearing. The State contends that, because Hill tendered no evidence (other than some trial transcripts
and deposition testimony, both of which the State argues are not clear evidence sufficient to dispel the
presumption the prosecutor acted with a proper motive), the trial judge erred in conducting the
evidentiary hearing. In response, Hill states the facts cast doubt on the constitutionality of the
prosecution and not only entitle him to an evidentiary hearing but also establish a prima facie showing
of prosecutorial misconduct.

The trial court’s decision to conduct an evidentiary hearing and dismiss the indictments with prejudice
is reviewed for an abuse of discretion. See Terrazas, 970 S.W.2d at 159. The test for whether the trial
court abused its [*52] discretion is whether the action was arbitrary or unreasonable. State v. Mechler,
153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The trial court does not abuse its discretion unless its
determination lies outside the zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736
(Tex. Crim. App. 2010).

Selective prosecution and vindictive prosecution are not defenses on the merits to the criminal charge
but independent assertions that the prosecutor has brought the charge for reasons the Constitution
prohibits. See Armstrong, 517 U.S. at 463; Ex Parte Quintana, 346 S.W.3d 681, 685 (Tex. App.—El
Paso 2009, pet. ref’d). Generally, prosecutors have broad discretion in enforcing criminal laws. See
Neal, 150 S.W.3d at 173. But selective prosecution does limit a prosecutor’s otherwise broad discretion
in determining what crimes to prosecute and how. Quintana, 346 S.W.3d at 685; see Roise v. State, 7
S.W.3d 225, 242-43 (Tex. App.—Austin 1999, pet. ref’d).

A defendant who believes he is subjected to selective prosecution bears the burden of proving
purposeful discrimination. See Green v. State, 934 S.W.2d 92, 103 (Tex. Crim. App. 1996). This burden
falls on the defendant because the presumption is that a prosecution for a violation of a criminal law
is taken upon in ″good faith and in nondiscriminatory fashion″ to bring violators to justice. See Gawlik
v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); Garcia v. State, 172 S.W.3d 270, 273 (Tex.
App.—El Paso 2005, no pet.). To establish a prima facie case, the defendant must show that: (1) the
government has singled him out for prosecution even though the government has not proceeded against
others similarly situated based on the type of conduct for which [*53] he is charged; and (2) the
government’s discriminatory selection is invidious, which means that the selection is based on
impermissible considerations such as race, religion, or the desire to prevent his exercise of
constitutional rights or based on some arbitrary classification. Quintana, 346 S.W.3d at 685; Garcia,
172 S.W.3d at 273-74. The defendant must provide ″exceptionally clear″ evidence that the decision to
prosecute was for an improper reason to establish a prima facie case of selective prosecution. See

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Garcia, 172 S.W.3d at 274. Once the defendant makes a clear showing of an Equal Protection violation,
the burden shifts to the State to justify the discriminatory treatment. See Johnson v. California, 543
U.S. 499, 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Quintana, 346 S.W.3d at 685. However, the
Equal Protection clauses of the United States and Texas Constitutions only require a rational basis for
the distinction unless it discriminates against a suspect class or impinges on a fundamental right. See
Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995).

A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways:
(1) proof of circumstances that pose a ″realistic likelihood″ of such misconduct sufficient to raise a
″presumption of prosecutorial vindictiveness,″ which the State must rebut or face dismissal of the
charges; or (2) proof of ″actual vindictiveness″ — that is, direct evidence [*54] that the prosecutor’s
charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a
protected legal right. Neal, 150 S.W.3d at 173. Under the first prong, if the State pursues increased
charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and
obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. Id.
(citing Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)). In the very few
situations in which this presumption does apply, it can be overcome by objective evidence in the record
justifying the prosecutor’s action. Id. at 173-74.

Under the second prong, when the presumption does not apply, the defendant may still obtain relief if
he can show actual vindictiveness. Id. at 174. To establish that claim, a defendant must prove, with
objective evidence, that the prosecutor’s charging decision was a ″direct and unjustifiable penalty″ that
resulted ″solely from the defendant’s exercise of a protected legal right.″ Id. Under this prong, the
defendant shoulders the burden of both production and persuasion, unaided by any legal presumption.
Id. Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility
determinations. [*55] Id. at 174-75. Under either prong, ″[i]f the defendant is unable to prove actual
vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of
government justification.″ Id. at 175. That is, the State may stand mute unless and until the defendant
carries his burden of proof under either prong. Id.

A trial judge’s limited authority to dismiss an indictment stems in part from the fact that the decision
of whether to prosecute is a core executive constitutional function. Armstrong, 517 U.S. at 464-65. And
because this power is within the province of the State, the State enjoys considerable discretion in
deciding whether or not to prosecute and what charge to file or bring to the grand jury. Wayte v. United
States, 470 U.S. 598, 607, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985); Bordenkircher v. Hayes, 434 U.S.
357, 364, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978); see also Neal, 150 S.W.3d at 173. As a result of that
discretion, our consideration of Hill’s claims begins with a ″presumption of regularity.″ That means we
presume the State made its decision to prosecute Hill in good faith and in compliance with the
Constitution. Armstrong, 517 U.S. at 465-66; Neal, 150 S.W.3d at 173.

Because courts are hesitant to interfere with the State’s exercise of its discretion to prosecute, a
defendant challenging the State’s decision to prosecute him must make out a prima facie showing that
he has been prosecuted in violation of his constitutional rights. [*56] United States v. Webster, 162 F.3d
308, 333-34 (5th Cir. 1999). To do this, he must ″dispel the presumption of good faith″ and
constitutional compliance by presenting ″’clear evidence to the contrary.’″ Id. at 334 (quoting
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Armstrong, 517 U.S. at 465); see also Armstrong, 517 U.S. at 464 (because prosecutors are afforded
a ″background presumption,″ the necessary showing ″to obtain discovery should itself be a significant
barrier to the litigation of insubstantial claims″); Garcia, 172 S.W.3d at 274 (appellant ″claiming
selective prosecution must come forth with ’exceptionally clear evidence’ that the prosecution was
initiated for an improper reason.″).

Importantly, a defendant who claims his constitutional rights were violated by some form of
prosecutorial misconduct ″is not automatically entitled to an evidentiary hearing to make the required
showing.″ Webster, 162 F.3d at 334. Rather, he must ″present facts ’sufficient to create a reasonable
doubt about the constitutionality of [his] prosecution’ . . . .″ Id. (quoting United States v. Jennings, 724
F.2d 436, 445-46 (5th Cir. 1986)); see also United States v. Cervantes, 132 F.3d 1106, 1111 n.4 (5th
Cir. 1981) (explaining that defendant is entitled to an evidentiary hearing related to constitutionality
of his prosecution ″only if the existing record proves the likely merit of [his] specific allegations″). The
″facts″ required to cast doubt about the constitutionality of the prosecution and rebut the presumption
the State acted in [*57] good faith such that a person is entitled to an evidentiary hearing (or even
discovery) must be more than allegations. See Jennings, 724 F.2d at 445-46 (motion containing broad,
generalized allegations did not offer facts to the court to warrant evidentiary hearing); see also Wade
v. United States, 504 U.S. 181, 186, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992) (stating that ″generalized
allegations of improper motive″ are not enough to entitle a defendant to a remedy, discovery, or
evidentiary hearing); United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008) (″Generalized
allegations of improper motive do not disturb the presumption of regularity.″).

A defendant also is not automatically entitled to discovery to obtain information about the
prosecutorial motive; the requisite threshold to obtain discovery on such claims requires the person to
produce ″some evidence tending to show the existence of the essential elements″ of the claimed
violations. Armstrong, 517 U.S. at 468. The standard for obtaining discovery in aid of such claims is
″rigorous″ and complements the ″rigorous standard″ for proving constitutional violations in the
decision to prosecute. Id.

I agree with the State’s contention that a criminal defendant is not entitled to probe prosecutorial
motive absent clear evidence establishing a prima facie case of a constitutional violation. See In re
United States, 397 F.3d 274, 284 (5th Cir. 2005). I also agree that the [*58] governing legal principles
outlined above contemplate an initial evidentiary tender by Hill to displace the presumption the
prosecutor acted in good faith. See Armstrong, 517 U.S. at 465; Webster, 162 F.3d at 334. I disagree,
however, with the State’s first argument that Hill provided ″no evidence″ with his motion in support
of his claims.

Hill alleged in his motion that the influence exercised upon Watkins by Hill’s father, his father’s
lawyer, and Blue deprived him of due process. He explained that Watkins had ″a financial stake in the
prosecution of the Hills″ because indicting them benefited Blue (who was involved in a dispute with
the Hills over attorneys’ fees) and counsel for his father (who also was a major campaign contributor)
″which in turn benefited″ Watkins. Hill claimed Blue’s influence and involvement with the indictment
process were demonstrated by Blue’s admission that Watkins contacted her two times before the
indictments were returned and the pattern of phone calls and text messages exchanged between Blue
and Watkins (and others in the DA’s office) in the weeks before the indictments were returned.

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In his motion, Hill argued that, to prevail on his vindictive prosecution claim, he was required to show
that (1) ″the [*59] prosecutor harbored genuine animus toward the defendant, or was prevailed upon
to bring the charges by another with animus such that the prosecutor could be considered a ’stalking
horse’″ and (2) ″he would not have been prosecuted except for the animus.″ United States v. Koh, 199
F.3d 632, 640 (2d Cir. 1999). Hill alleged that the decision to prosecute him was prompted by the anger
of his father after receiving an adverse ruling in the trust litigation and the animus of Blue in the
fee-dispute litigation. He also maintained that the

timing, circumstances, and unusual if not unprecedented nature of the Hill indictments make
abundantly clear that the real motivation of these indictments was to benefit [Watkins’s]
prolific campaign contributor [his father’s lawyer’s law partner], and to assist [Watkins’s]
friend and benefactor, [Blue] by impairing the Hills’ ability to contest [Blue’s] enormous fee
claims.

He claimed such animus was demonstrated by the improprieties inherent in the indictments (such as
his denial of any pre-indictment notice or opportunity to be heard by the Grand Jury), the
″unprecedented nature″ of the charges, and Hill’s understanding that the DA’s office did not conduct
a thorough investigation before indicting him. Hill’s [*60] third allegation was that the indictments
should be dismissed because he was denied equal protection under the law when he was prosecuted
under circumstances that do not normally lead to criminal prosecution and when he was denied the
benefit of pre-indictment notice.

The State concedes Blue’s deposition testimony that Watkins called her two times regarding the Hill
indictments was evidence. Attached to Hill’s motion to dismiss were exhibits including a complaint
from Hill’s father’s attorney that the Hills committed mortgage fraud; excerpts from Watkins’s
campaign finance reports; emails between Blue, Hill, Malouf, and Charla Aldous; excerpts from Blue’s
deposition; and the indictments against the Hills. The record reflects that the State did not object to the
numerous exhibits attached to Hill’s motion to dismiss. Instead, the State filed a response to the merits
of Hill’s assertions contained in Hill’s motion, appeared at the hearing on Hill’s motion, and ended up
stipulating to the authenticity of the exhibits. Further, Blue took the Fifth and refused to testify
concerning her conversations with Watkins, which creates an adverse inference against the State. An
adverse inference [*61] may not be drawn from a defendant’s proper invocation of a privilege because
in a criminal case ″the stakes are higher and the State’s sole interest is to convict.″ Baxter v.
Palmigiano, 425 U.S. 308, 318-19, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). However, the danger of
unfair prejudice is not the same when it is the defense rather than the State that seeks to draw an
inference from a witness’s invocation of privilege. I would reject the State’s argument, made for the
first time on appeal, that the exhibits were ″no evidence,″ see TEX. R. APP. P. 33.1(a), and overrule the
State’s first issue.

In its second issue, the State argues Hill failed to make a prima facie case of a constitutional violation.
At the hearing on Hill’s motion to dismiss, the State made this same argument. However, the State
raised this issue after the hearing had begun and after the trial judge determined Hill had already
established a prima facie case. A review of the record shows the first thing the trial judge did at the
February 14 hearing was address the court’s power to dismiss the indictments against Hill. No new
evidence was presented at the February 14 hearing. In response to the State’s argument that Hill
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″want[ed] information″ and ″that’s just discovery under 39.14,″ the trial judge questioned how [*62]
Hill could ″just want information″ when ″[Hill had] already provided, in the opinion of this Court,
sufficient information.″ Later in the hearing, the trial judge specifically stated that ″civil lawyers in a
couple weeks ahead of time [of the indictments] making huge contributions to the District Attorney,
and you have admissions by Ms. Blue that she discussed the indictments with Mr. Watkins″ established
a prima facie case to support the motion to dismiss. Another time, the trial judge stated, ″This is a
hearing on a motion to dismiss or a motion to quash,″ and Hill ″presented sufficient evidence to the
Court in the form of their motion to dismiss and the response . . . to the State’s objections that I believe
rise to the level of a prima facie showing.″

Thus, the record shows the trial judge made a determination that Hill established a prima facie case
before the hearing on February 14. The trial judge began the hearing by questioning the court’s
authority to dismiss the indictments against Hill, not by addressing the issue of whether Hill made a
prima facie showing of a constitutional violation. The trial judge’s references to a ″hearing″ to follow
referred to a hearing on specific [*63] issues the trial judge identified, not the issue of a prima facie
case. Notably, the February 14 hearing was continued due to Watkins’s refusal to appear, necessitating
further ″hearings″ on the dismissal issue.

The gist of the allegations presented in Hill’s motion is that there was an untoward interest in indicting
him. He specifically claimed he was deprived of his right to a disinterested prosecutor and that he had
been vindictively and selectively prosecuted. As proof of the alleged constitutional violations, Hill
emphasized in his motion the following: (1) Watkins’s campaign records showing political contributions
from a lawyer associated with his father in the months after the February 2010 complaint and five
months before the indictments were returned and a donation by Blue less than a month before the
indictments; (2) information showing that Blue hosted a fundraiser for Watkins in the month before the
indictments; (3) the ″unusual″ nature of the charges against him; (4) the lack of notice to him that
indictments were being considered; (5) the suspect timing of the indictments in that they were returned
just before the fee-dispute trial involving Blue, which Hill claimed prevented [*64] him and his wife
from testifying in that trial; (6) Blue’s telephone records and text message logs, which Hill claimed
show a ″heated exchange″ of communications with Watkins and his office in the weeks leading up to
the indictments and ending after the indictments were returned; (7) Blue’s admission during her
depositions that she discussed indictments with Watkins in the time before they were returned; (8)
Blue’s comment made in her deposition that she would have no reason to discuss indictments with
Watkins after they were returned; (9) Blue’s close relationship with Watkins; (10) defense counsel’s
meeting with Smith about the charges; and (11) the fact that the charges against Hill’s wife were
dismissed. In addition, the trial judge heard from the district attorney’s office that they did not initially
think this was a good case, and the trial judge noted Martin was impeached with her own notes.

I would conclude the trial judge did not abuse her discretion in determining these facts establish a
prima facie case of a selective prosecution, vindictive prosecution, and absence of an impartial and
disinterested prosecutor. See Terrazas, 970 S.W.2d at 159. The evidence presented by Hill amounted
to ″more than allegations.″ [*65] See Jennings, 724 F.2d at 445-46. By conducting a hearing after Hill
made a prima facie case of a constitutional violation, the trial judge correctly shifted the inquiry to
whether the State could produce evidence showing why the prosecution of Hill was not vindictive or
selective or undertaken by an impartial and disinterested prosecutor. See Neal, 150 S.W.3d at 173.

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Following the State’s failure to present evidence from Watkins or Blue to rebut Hill’s prima facie case,
the trial judge did not abuse her discretion in dismissing the indictments against Hill. Id. at 173-75. I
would overrule the State’s second issue.

In its third issue, the State argues the trial judge abused her discretion by compelling Watkins to testify
and then dismissing the indictments based on his refusal to testify. Specifically, the State argues Hill
was attempting to ″invade protected work product″ by seeking to discover the basis for Watkins’s
decision to seek indictments against Hill.

In its response to Hill’s motion to dismiss, the State asserted Hill’s argument assumed the district
attorney was not free to discuss these crimes or his investigation with others or, more particularly, Blue.
The State argued Hill’s assumption is false and argued that, even if the district [*66] attorney spoke
to Blue about Hill’s cases every single time the two communicated, there was nothing improper about
it. As the county’s prosecuting authority, the district attorney is obligated to investigate allegations of
criminal activity and, according to the State, any source that could inform his decision about whether
to prosecute and what to prosecute an individual for is fair game. The State argued it would be
reasonable for the district attorney to conclude that Blue’s prior relationship with Hill, which was both
personal and professional, made her a potential source of reliable information.

Again, nowhere in its response did the State challenge the authenticity or veracity of any of the exhibits
attached to Hill’s motion to dismiss or argue that Hill’s motion failed to make out a prima facie
showing that he had been prosecuted in violation of his constitutional rights. Further, the record shows
the State subsequently stipulated to the authenticity of the exhibits at a later hearing.

Work product comprises:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial
by or for a party or a party’s representatives, including the party’s attorneys, [*67] consultants,
sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the
party’s representatives or among a party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents.

TEX. R. CIV. P. 192.5. The work product of an attorney or an attorney’s representative that contains the
attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal
theories is not discoverable. Id. ″The primary purpose of the work product rule is to shelter the mental
processes, conclusions, and legal theories of the attorney, providing a privileged area within which the
lawyer can analyze and prepare his or her case.″ Owens Corning Fiberglas Corp. v. Caldwell, 818
S.W.2d 749, 750 (Tex. 1991).

Our evidence rules provide, however, that a privilege can be waived:

A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses
or consents to disclosure of any significant part of the privileged matter unless such disclosure
itself is privileged.

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TEX. R. EVID. 511(1); Jones v. State, 181 S.W.3d 875, 878 (Tex. App.—Dallas 2006, pet. ref’d). The State
in this case did [*68] not raise any privilege or work product objections during the testimony of Moore,
Strittmatter, or Martin. Through their collective testimony, the State allowed extensive evidence
concerning the decision-making process before and during the events leading up to Hill’s indictments.
Thus, any claim of privilege related to that process was waived. See TEX. R. EVID. 511(1); Jones, 181
S.W.3d at 878.

Rule 1.05 of the Texas Rules of Disciplinary Procedure is pertinent to the issue of whether Watkins
legitimately could solicit information from Blue concerning whether to indict Hill. Rule 1.05 provides:

[A] lawyer shall not knowingly . . . (2) [u]se confidential information of a client to the
disadvantage of the client unless the client consents after consultation [or] (3) [u]se confidential
information of a former client to the disadvantage of the former client after the representation
is concluded unless the former client consents after consultation or the confidential information
has become generally known.

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05(b), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A
(West 2005) (TEX. STATE BAR R. art. X, § 9).
One of the primary purposes of the Sixth Amendment right to counsel is to preserve the integrity of
the attorney-client relationship once it has been established. State v. Frye, 897 S.W.2d 324, 327 (Tex.
Crim. App. 1995) (citing Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)).
Both the court of [*69] criminal appeals and the United States Supreme Court have declared once an
accused has a lawyer, ″a distinct set of constitutional safeguards aimed at preserving the sanctity of the
attorney-client relationship takes effect.″ Id.
Here, Watkins’s communication with Blue concerning Hill could have been a purely innocent inquiry
into whether Blue, his personal friend, was simply ″interested″ in what was going on with Hill, in
which case the inquiry would have had nothing to do with ″a communication made in anticipation of
litigation or for trial″ and would not have constituted work product. The communication could have
been an inquiry of Blue as a ″potential source of reliable information″ against Hill, in which case the
communication would have violated rule 1.05. Or the communication could have been an inquiry into
whether Blue, who had formerly urged the district attorney’s office not to indict Hill while she
represented Hill, was ″still interested″ in preventing the indictments now that she was seeking in excess
of $50 million in attorney’s fees from Hill. In that case, the characterization of Watkins’s
communication as ″a communication made in anticipation of litigation or for trial″ cannot [*70] stand;
the purpose of the communication in that case would be to violate Hill’s constitutional rights under the
guise of legitimate ″prosecution.″ None of these possibilities support the State’s theory that Watkins’s
communication with Blue concerning the Hill indictments fit within the definition of work product. I
would overrule the State’s third issue.
In its fourth issue, the State argues the trial judge abused her discretion by dismissing the indictments
with prejudice. The State argues dismissal without prejudice would have cured the claimed
constitutional violations.
Dismissal with prejudice may be warranted when a defendant suffers demonstrable prejudice, or a
substantial threat thereof, and where the trial court is unable to ″identify and neutralize the taint″ by

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other means. Frye, 897 S.W.2d at 330. Here, the evidence supported the trial judge’s determination that
Hill established a prima facie case his constitutional rights were violated, and the State presented no
evidence enabling the trial judge to ″identify and neutralize the taint.″ See id. It was for the trial judge
to decide the ultimate factual issue based upon the evidence and credibility determinations. Neal, 150
S.W.3d at 174-75. I would conclude the trial judge [*71] did not abuse her discretion in dismissing the
indictments with prejudice. I would overrule the State’s fourth issue.

I would affirm the trial judge’s order dismissing the indictments in these cases.

DAVID L. BRIDGES

JUSTICE

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