Hill, Albert G.

PD-0019-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/8/2015 3:44:04 PM
SEPTEMBER 9, 2015 Accepted 9/8/2015 4:26:09 PM
ABEL ACOSTA
PD-0019-15, PD-0020-15 CLERK
PD-0021-15, PD-0022-15

IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________

THE STATE OF TEXAS
APPELLANT

vs.

ALBERT G. HILL, III
APPELLEE
_________________________________________________

FROM THE FIFTH COURT OF APPEALS,
CAUSE NOS. 05-13-00421-CR, 05-13-00423-CR,
05-13-00424-CR, 05-13-00425-CR

APPEAL FROM THE 204TH JUDICIAL DISTRICT COURT
OF DALLAS COUNTY, TEXAS, CAUSE NOS. F11-00180,
F11-00182, F11-00183, F11-00191
_________________________________________________

BRIEF OF AMICUS CURIAE LISA BLUE
IN SUPPORT OF APPELLANT
_________________________________________________

ROBERT N. UDASHEN, P.C. SORRELS, UDASHEN & ANTON
State Bar No. 20369600 2311 Cedar Springs, Suite 250
rnu@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com Counsel for Appellant
 Table of Contents

Index of Authorities .................................................................................... 3

Interest of Amicus Curiae and Disclosure of Source of Fee Paid ............. 5

Argument..................................................................................................... 7

I. It’s unclear what standard Hill asks this Court to use to
conduct its analysis, but it’s clear that Armstrong controls .............. 9

II. Under Armstrong, it is plain that Hill was not entitled to an
evidentiary hearing on his conclusory and baseless claims ............ 14

III. Conclusion .................................................................................... 25

Prayer ........................................................................................................ 26

Certificate of Service ................................................................................. 28

Certificate of Compliance ......................................................................... 28

2
 Index of Authorities

Cases

Attorney General v. Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1982) .... 12
Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL 2217334, *2 (N.D. Tex. 2014)
.......................................................................................................... 20, 21
Campbell Harrison & Dagley, L.L.P. v. Hill, 582 Fed. App’x 522 (5th
Cir. 2014) ............................................................................................... 20
Franks v. Delaware, 438 U.S. 154 (1978) .......................................... 11, 13
Galvan v. State, 988 S.W.2d 291, 294 (Tex. App.—Texarkana 1999, pet.
ref’d) ....................................................................................................... 23
Garcia v. State, 172 S.W.3d 270, 273 (Tex. App.—El Paso 2005, pet.
ref’d) ....................................................................................................... 22
In re United States, 397 F.3d 274, 284 (5th Cir. 2005) ....................... 9, 14
Jones v. White, 992 F.2d 1548 (11th Cir. 1993) ....................................... 12
Ramsey v. State, 579 S.W.2d 920, 923 (Tex. Crim. App. 1979) .............. 11
Rodriguez v. State, 283 S.W.3d 465, 471 (Tex. App.—San Antonio 2009,
pet. dism’d)............................................................................................. 22
State v. Dinur, 383 S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.]
2012, no pet.) ......................................................................................... 22
State v. Hill, No. 05-13-00421-CR, 2014 WL 7497992, *11 (Tex. App.—
Dallas 2014) ................................................................................... passim
United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995)...................... 12
United States v. Armstrong, 517 U.S. 456 (1996) ............................ passim
United States v. Cruz, 285 F.3d 692 (8th Cir. 2002) ............................... 17
United States v. Fares, 978 F.2d 52 (2d Cir. 1992).................................. 12
United States v. Goulding, 26 F.3d 656 (7th Cir. 1994) .......................... 12
United States v. Greenwood, 796 F.2d 49 (4th Cir. 1986) ....................... 12
United States v. Jennings, 724 F.2d 436, 445–46 (5th Cir. 1984) ... 12, 13,
14
United States v. Johnson, 592 F.3d 749, 757 (7th Cir. 2010) ................. 17
United States v. Mercado, 610 F.3d 841, 847-48 (3d Cir. 2010) ............. 17
United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977) ................ 24
United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) .................. 12
United States v. Peete, 919 F.2d 1168 (6th Cir. 1990) ............................. 12
United States v. Penagaricano-Soler, 911 F.2d 833, 839 (1st Cir. 1990)12
United States v. Ramirez, 765 F.2d 438, 440 (5th Cir. 1985) ................. 12
3
United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008) ............. 13, 14
United States v. Saville, No. CR 12-02-BU-DLC, 2013 WL 3270411, *8
(D. Mont. 2013) ...................................................................................... 17
United States v. Torquato, 602 F.2d 564 (3d Cir. 1979).......................... 12
United States v. Webster, 162 F.3d 308, 334 (5th Cir. 1998) ............ 12, 14
Wade v. United States, 504 U.S. 181, 186 (1992) .............................. 12, 14
Wayte v. United States, 470 U.S. 598, 524 (1985) ............................. 24, 25

Statutes

TEX. PENAL CODE § 32.32(b)........................................................................ 7
TEX. PENAL CODE § 32.46(a)........................................................................ 7

4
Interest of Amicus Curiae and Disclosure of Source of Fee Paid

Appellee Albert G. Hill III accused Amicus curiae Lisa Blue to have

improperly encouraged Dallas County District Attorney Craig Watkins

to indict Hill in these cases. Though these allegations are entirely with-

out any factual support, the trial court in its findings of fact and conclu-

sions of law on Hill’s motion to quash and dismiss the indictments–

adopted nearly verbatim from those submitted to the trial court by Hill–

concluded it could be inferred that Blue did so due to her refusal to testify

at the hearing on the matter.

Hill’s allegations in this case, and now the findings of fact and con-

clusions of law signed by the trial court, have caused, and continue to

cause, great harm to Blue’s personal and professional reputations. Dur-

ing the proceedings in the trial court, rarely a day went by that the media

did not cover the case in some manner. Additionally, the findings and

conclusions’ implication that it is improper for politicians and donors to

have a personal relationship effects a chill on Blue’s, and every other

Texan’s, right to participate in the political process. Accordingly, Blue

now files this limited amicus curiae brief in support of the State, pursu-

ant to Rule 11 of the Texas Rules of Appellate Procedure, with a deep and

5
significant interest in this Court’s determination of the propriety of the

trial court’s findings and conclusions. She has retained the above-named

attorneys to file this amicus curiae brief on her behalf.

6
 Argument

Albert Hill III committed the felony crimes of making a false state-

ment to obtain property or credit and securing execution of a document

by deception. See TEX. PENAL CODE §§ 32.32(b), 32.46(a); (RR4: 149-50)

(assistant district attorney characterized the case as “one of the easier

cases [she] had”). As a result, the State initiated prosecution.

From the outset, Hill has complained that the State chose to prose-

cute him for his crimes, seemingly oblivious to his clear violations of the

law. See (CR-180-I at 35). Ignoring this simple causality—commit felo-

nies, get prosecuted—Hill has declared that the State only cared about

his crimes for a nefarious reason: because Blue improperly influenced

former District Attorney Craig Watkins to prosecute Hill. (CR-180-I at

35).

At no point has Hill offered any evidence to support his claim; just

rank speculation as to the content of communications between longtime

friends and political associates, Watkins and Blue. Repeatedly, Hill has

conjured a conspiracy from absolutely nothing at all. Accordingly, in an

opinion filed December 29, 2014, the court of appeals correctly concluded

that Hill hadn’t even met the minimal threshold required to obtain a

7
hearing on his claim. The court thus reversed the trial court’s finding

that the State’s and Blue’s invocation of privilege1 at such a hearing war-

ranted dismissal of the indictments pending against Hill, vacated the

court’s order dismissing the indictments, and returned the case to that

court for trial on the indictments. State v. Hill, No. 05-13-00421-CR, 2014

WL 7497992, *11 (Tex. App.—Dallas 2014).

Now, before this Court, Hill again complains that he is being selec-

tively and vindictively prosecuted for his felony crimes.2 Over the course

of some 70-plus pages, he explains for this Court the history of prosecu-

torial misconduct, and debates the standards for evaluating as much, be-

fore finally attempting to clarify just what evidence he has to show he is

being prosecuted for any reason other than that he committed serious

crimes. Again, though, he can’t. Hill points only to content-unknown con-

1Blue only asserted her Fifth Amendment privilege because she received a federal
target letter immediately before the hearing. That criminal investigation was insti-
gated by Hill and was soon dropped.

2Hill has apparently abandoned his claim that Watkins was not a disinterested pros-
ecutor, now asserting only that Watkins selectively and vindictively prosecuted him.
Compare Hill’s brief before the court of appeals, pages 36-44, and Hill’s Petition for
Discretionary Review, which only mentions the disinterested claim in summarizing
prior proceedings.
8
versations as somehow damning evidence of Watkins’s and Blue’s culpa-

bility. They’re not, though, and they never were, and it remains that Hill

is very much guilty of the crimes for which he was prosecuted. Accord-

ingly, Blue respectfully requests this Court to make clear that there is no

evidence she engaged in any wrongdoing and to affirm the court of ap-

peals’s holding.

I.   It’s unclear what standard Hill asks this Court to use to
conduct its analysis, but it’s clear that Armstrong controls

The court of appeals in this case conducted its analysis pursuant to

United States v. Armstrong, 517 U.S. 456 (1996); see Hill, 2014 WL

7497992 at *5 (“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.”)

(citing Armstrong, 517 U.S. at 468). In that case, the Supreme Court held

that the standard for obtaining discovery on claims like selective or vin-

dictive 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 274, 284 (5th Cir. 2005)

(prima facie case “requires the criminal defendant to bring forward some

evidence ”).

9
 It is not entirely clear whether Hill’s argument accepts this stand-

ard. Citing Armstrong, he acknowledges 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.’” PDR at 50

(citing Armstrong, 517 U.S. at 463). As Hill summarizes: “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 de-

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

invidious.” PDR at 47. Perhaps because this standard is “rigorous,”

though, see Armstrong, 517 U.S. at 468, Hill then “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 discre-

tion determines to present a colorable claim of a constitutional violation,

the defendant has attached ‘some evidence,’ and a trial court has the dis-

cretion to conduct a hearing on the motion to dismiss.” PDR at 47-48. And

10
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,” Hill

asserts, “should be no different than the procedure to obtain a hearing

under Franks v. Delaware, 438 U.S. 154 (1978), where a defendant con-

tests the truthfulness of an affidavit supporting a search warrant.” PDR

at 55. The court of appeals’s holding otherwise, Hill claims—apparently

forgetting Armstrong—was an “unprecedented rule.” PDR at 57. Instead,

under Franks, Hill asserts, merely “a statement by the defense attorney

as to what would be shown if he were allowed to call witnesses on the

issue” justifies a hearing.” PDR at 56-57 (citing Ramsey v. State, 579

S.W.2d 920, 923 (Tex. Crim. App. 1979)). Hill then returns to Armstrong,

however, in declaring that he provided sufficient evidence to warrant a

hearing. PDR at 58-67).

Whatever standard Hill is asking for, this Court should not apply

Franks in the selective/vindictive prosecution context. First, as best Blue

can tell, no court ever has. And, indeed, Hill in his brief cites to no case

in which a court has done so.3 See PDR at 55-58, 71-75. This makes sense.

3Hill concludes his brief by claiming that “most other courts have adopted standards
substantially similar” to that which he asks this Court to adopt. (PDR at 71-75).
Again, it is unclear exactly what standard that is. But, regardless, every single one
of those cases pre-dates Armstrong. See United States v. Penagaricano-Soler, 911 F.2d
11
For, as Hill acknowledged, but then seemingly ignored, there already is

a standard for determining whether a hearing is justified: Armstrong.

And under Armstrong, “[a] defendant is not automatically entitled to an

evidentiary hearing to make the required showing. He must first present

facts ‘sufficient to create a reasonable doubt about the constitutionality

of [his] prosecution’ resulting from selective prosecution.” United States

v. Webster, 162 F.3d 308, 334 (5th Cir. 1998) (citing, e.g., Armstrong, 517

U.S. at 469; United States v. Jennings, 724 F.2d 436, 445–46 (5th Cir.

1984) (finding bare generic allegations concerning the selective prosecu-

tion of racial groups insufficient to justify an evidentiary hearing); United

States v. Ramirez, 765 F.2d 438, 440 (5th Cir. 1985) (holding “conclu-

sional allegations of impermissible motive are not sufficient” to demon-

strate the government acted in bad faith)); see also Wade v. United States,

504 U.S. 181, 186 (1992) (stating that “generalized allegations of im-

833, 839 (1st Cir. 1990); United States v. Fares, 978 F.2d 52 (2d Cir. 1992); United
States v. Torquato, 602 F.2d 564 (3d Cir. 1979); United States v. Greenwood, 796 F.2d
49 (4th Cir. 1986); United States v. Peete, 919 F.2d 1168 (6th Cir. 1990); United States
v. Goulding, 26 F.3d 656 (7th Cir. 1994); United States v. Armstrong, 48 F.3d 1508
(9th Cir. 1995); United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992); Jones v.
White, 992 F.2d 1548 (11th Cir. 1993); Attorney General v. Irish People, Inc., 684 F.2d
928 (D.C. Cir. 1982). Moreover, every single one of them, like Armstrong, requires a
defendant to produce some evidence, not just wildly speculative accusations. See id.
12
proper motive” are not enough to entitle a defendant to a remedy, discov-

ery, 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’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).

Moreover, even if this Court were to consider becoming the first

court to apply Franks in the selective prosecution context, Hill exagger-

ates its permissiveness. Even in Franks, the United States Supreme

Court required that, “[t]o mandate an evidentiary hearing, the chal-

lenger’s attack must be more than conclusory and must be supported by

more than a mere desire to cross-examine.” Franks, 438 U.S. at 171 (em-

phasis added). Accordingly, Blue first urges this Court to follow the court

of appeals and conduct its analysis under Armstrong. See Hill, 2014 WL

7497992 at *5. A defendant who claims his constitutional rights were vi-

olated by some form of prosecutorial misconduct must make out a prima

13
facie case of his claims before he is entitled to an evidentiary hearing or

discovery. See In re United States, 397 F.3d at 284 (citing Armstrong, 517

U.S. at 465; Webster, 162 F.3d at 334). And the “facts” required to cast

doubt about the constitutionality of the prosecution and to rebut the pre-

sumption 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; Wade, 504 U.S. at 186, Sanchez, 517

F.3d at 671.

II.   Under Armstrong, it is plain that Hill was not entitled to an
evidentiary hearing on his conclusory and baseless claims

Under the appropriate standard—and really, under almost any

standard—it is clear that the court of appeals was correct in holding that

Hill was not entitled to a hearing on his motion to dismiss. See Hill, 2014

WL 7497992 at *11. Hill argues just the opposite: that he proffered “not

only… ‘some evidence,’” but “exceptionally clear evidence” that “Blue,

who at the time was engaged in a fee dispute with [Hill], corruptly influ-

enced Watkins, a close friend and fellow Democratic party operative, to

authorize indictments against [Hill] in exchange for a promise of and ac-

tual receipt of ‘campaign’ contributions for a nonexistent ‘campaign.””

14
PDR at 12-13. As support, Hill claims to possess “compelling circumstan-

tial evidence.” PDR at 13-14. But after 60-plus pages of bluster, there

Hill’s argument ends—with a mere recitation of the evidence that the

court of appeals rejected as simple “speculation,” and not a word address-

ing that conclusion. See PDR at 63-67.

Hill’s argument that he “made a ‘colorable claim’ of a constitutional

violation” begins in earnest in the final paragraph of page 63 of his brief.

All that precedes it comprises Hill’s version of the facts and the standard

for evaluating whether a defendant is entitled to a hearing. But there,

beginning on page 63, Hill claims in two paragraphs that the “Motion to

Dismiss and its attachments detail how Blue, who at the time was en-

gaged in a fee dispute with Appellee, corruptly influenced Watkins, a

close friend and fellow Democratic party operative, to authorize indict-

ments against Appellee in exchange for a promise of and actual receipt of

‘campaign’ contributions for a nonexistent ‘campaign.’” PDR at 63-64.

Hill then sets forth his “exceptionally clear evidence,” which the court of

appeals aptly summarized, and with which Hill does not quarrel:

(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 dona-
tion by Blue less than a month before the indictments were

15
 returned; (2) that Blue hosted a fundraiser for Watkins in the
month before the indictments were returned; (3) the “unu-
sual” 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 be-
fore 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 discus-
sion about 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 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.

Hill, 2014 WL 7497992 at *6; see PDR at 52 (pointing to the court of ap-

peals’s summary of Hill’s “evidence”).

No real argument follows. See PDR at 67. Hill instead returns to

advocating for a lesser burden than Armstrong (now, for “public policy”

reasons—more on this below), without at all explaining how, under any

standard, his “evidence” amounts to anything but pure speculation. PDR

at 67-68. For good reason: he can’t. The court of appeals was absolutely

correct in concluding that, “[a]bsent evidence regarding the substances of

[Blue and Watkins’] communications, Hill’s characterization about the

16
timing of the text messages and phone calls does not necessarily suggest

the communications were related to the indictments as opposed to other

legitimate purposes.” Hill, 2014 WL 7497992 at *8. This comports with

both common sense and the holdings of several federal courts of appeals.

See, e.g., United States v. Mercado, 610 F.3d 841, 847-48 (3d Cir. 2010)

(jurors may not infer that a defendant gained knowledge of the subject of

an illegal conspiracy based on phone calls alone); United States v. John-

son, 592 F.3d 749, 757 (7th Cir. 2010) (finding that approximately 300

calls over 10 months, even combined with other circumstances, does not

show conspiratorial relationship); United States v. Cruz, 285 F.3d 692

(8th Cir. 2002) (evidence was insufficient to support defendants’ convic-

tions for conspiracy to distribute methamphetamine; although police of-

ficers observed defendants talking on cellular phone shortly after being

notified that government informant, a known drug dealer, had initiated

phone call to cell phone number, absent evidence of the contents of the

phone conversations, jury could only speculate as to relationship between

them and what was discussed); see also United States v. Saville, No. CR

12-02-BU-DLC, 2013 WL 3270411, *8 (D. Mont. 2013) (“Likewise, while

17
it may have been possible to speculate that Saville was planning on con-

necting his computer to another on the Gnutella network for the purpose

of downloading child pornography, that too would be like speculating

about the contents of a phone conversation based on the identity of the

person or entity dialed.”). Indeed, the evidence in this case was even less

suspicious in light of Blue and Watkins’s long-standing (and well-docu-

mented) friendship. As the court of appeals explained:

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.

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 em-
phasized 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 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.

Id.

18
 Furthermore, Hill’s characterization of the State’s case against him

is wildly inaccurate. Repeatedly, Hill claims that the “mortgage fraud al-

legations were dubious at best,” and that the indictments against him

were thus “unprecedented.” PDR at 15, 28, 64, 65. But in support, Hill

points only to the allegations in his original motion, and to evidence ad-

duced at the hearing. See PDR at 15, 28, 64, 65 (citing CR-180: 36-52;

RR4: 49, 126, 129, 155). The former is, of course, not evidence, and the

latter has no place in this Court’s analysis of whether Hill included with

his motion some evidence tending to show the existence of the essential

elements of the claimed violations. See Armstrong, 517 U.S. at 468. More-

over, the evidence adduced at the hearing did not support Hill’s accusa-

tion. Hill claims that Assistant District Attorney Stephanie Martin

“didn’t see how [she] could prove [Hill’s] criminal case” but was directed

to proceed anyway. PDR at 22, 37. This is a gross mischaracterization of

the testimony adduced at the hearing. In fact, Martin testified only that

she did not think the case could be prosecuted with the family trust as

the victim, rather than the bank that Hill lied to, and that, accordingly,

Moore directed her to continue her investigation as she had been. (RR4:

186-187). Indeed, Martin believed it to be a “good case” from the moment

19
it was reported; it was “one of the easier cases [she] had.” (RR4: 149-150).

There was no testimony whatsoever that Martin preferred to drop the

case but that Moore demanded she press on.

Unsurprisingly, then, the court of appeals’s conclusion was also pre-

cisely in line with that of United States District Court for the Northern

District of Texas. In civil litigation between Hill and Blue over attorneys’

fees, Hill attempted to avoid paying Blue for her legal work “by con-

tend[ing] that the evidence of numerous communications between Lisa

Blue and District Attorney Craig Watkins and donations from Blue and

her associates to Watkins’s campaign establishe[d] that [Blue] was ac-

tively involved in ensuring that the Hills were wrongfully indicted for

mortgage fraud two weeks before the attorneys’ fee trial was set to begin,

and that the fraudulently obtained criminal charges interfered with their

ability to defend themselves against [Blue’s] claims in the attorneys’ fee

dispute.” Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL 2217334, *2 (N.D.

Tex. 2014) appeal dismissed sub nom. Campbell Harrison & Dagley,

L.L.P. v. Hill, 582 Fed. App’x 522 (5th Cir. 2014). In so doing, Hill pointed

to largely the same “evidence” he relies on in this Court. Id. at *4. And in

that court, too, Hill’s claim was rejected for relying “upon supposition and

20
speculation in place of evidentiary support.” Id. The federal court ex-

plained:

The extensive appendices and briefing submitted by the Hills
do not, as they contend, “allow[ ] only one reasonable inference
... that Ms. Blue improperly influenced the D.A.’s Office to in-
dict her former clients in order to give [Blue] an unfair ad-
vantage in the fee trial.” These records instead document that
Blue and Watkins have a close personal and professional re-
lationship and, separately, that the Hills’s indictments were
unusual and eventually dismissed by the District Attorney’s
Office. There is not sufficient evidence to prove, or reasonably
infer, that the interactions or relationship between Blue and
Watkins resulted in the criminal charges against the Hills,
that the indictment of the Hills was meant to reward Blue, or
place the Hills at a disadvantage in the attorneys’ fee dispute.
The Hills speculate—but in no way establish—that the phone
calls, meetings, and campaign donations from Blue to Wat-
kins were related to the criminal charges against them, as op-
posed to legitimate purposes. The Hills’s evidence of temporal
proximity and fervent belief in the correctness of their argu-
ment are not enough to satisfy their Rule 60(b)(3) burden. The
Hills do not submit evidence, direct or circumstantial, to es-
tablish that Blue… influenced the District Attorney’s Office
to indict them wrongfully….

Id. In fact the federal court rejected Hill’s claim even while mistaking a

crucial fact: both Hills’s indictments were not dismissed, only Hill’s

wife’s. See Hill, 2014 WL 7497992 at *1 (“The State later dismissed the

charges against Hill's wife and continued to prosecute the cases against

Hill.”).

21
 Hill has nothing to rebut the conclusions of these courts. No argu-

ment. Faced with this inconvenient reality, Hill, in a sort of last-ditch

effort, notes that “[n]o 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.” (PDR at 67-

68). But none of the cases to which he cites even address that issue. See

Garcia v. State, 172 S.W.3d 270, 273 (Tex. App.—El Paso 2005, pet. ref’d)

(“In Issue No. Two, Appellant maintains that the court erred in failing to

grant her motion to quash the indictment on the basis of selective prose-

cution.”); State v. Dinur, 383 S.W.3d 695, 697 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (“The State of Texas appeals from the trial court’s

dismissal of driving-while-intoxicated charges against appellee Alexan-

der Elliot Dinur. Because we conclude that there is neither a violation of

appellee’s constitutional rights nor any statutory or common law basis

for dismissal asserted, we reverse the trial court’s order of dismissal and

remand for further proceedings.”); Rodriguez v. State, 283 S.W.3d 465,

471 (Tex. App.—San Antonio 2009, pet. dism’d) (“In his final point of er-

ror, Rodriguez claims the trial court denied him equal protection, due

process, equity, and fairness when it dismissed a virtually identical bond

22
forfeiture case against Del Rio and his surety but did not do the same for

him. He argues the Bexar County District Attorney’s decision to proceed

against him as an attorney-surety was unfair given the decision not to

proceed against the non-attorney licensed surety in an identical case.”);

Galvan v. State, 988 S.W.2d 291, 294 (Tex. App.—Texarkana 1999, pet.

ref’d) (“Galvan first contends that the trial court erred in failing to allow

evidence of selective prosecution as a defense because selective prosecu-

tion is an issue which the jury should be allowed to consider…. In his

second point of error, Galvan contends that the trial court erred in hold-

ing that he failed to successfully show a prima facie case of selective pros-

ecution in his motion to quash the indictment…. Galvan contends in his

third point of error that the trial court erred by not holding a hearing on

his motion for new trial.”). And, indeed, other than noting that no court

has ever ruled as the court of appeals did here, Hill does not urge this

Court to fall in line. See PDR at 68-69.

Hill finally asserts that “public policy” benefits if this Court will just

“allow[ ]” judges “the discretion to conduct a hearing” when a defendant

merely “makes a colorable claim of prosecutorial misconduct.” PDR at 70

(emphasis added). Pointing to Justice Marshall’s dissenting opinion in

23
Wayte v. United States, 470 U.S. 598, 524 (1985), Hill argues that doing

so is necessary because “evidence of selective prosecution is nearly im-

possible 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.” PDR at 69.

Even forgetting that Justice Marshall’s dissenting opinion has no

precedential value, and that it, too, pre-dates Armstrong, in fact Justice

Marshall’s opinion supports the opposite conclusion than that for which

it is cited. Hill points to Marshall’s opinion because it observes that “[t]he

need to develop all relevant facts in the adversary system is both funda-

mental and comprehensive,” and “that most of the relevant proof in se-

lective prosecution cases will normally be in the Government’s hands.”

PDR at 69-70 (citing Wayte, 470 U.S. at 624 (Marshall, J., dissenting)).

But Hill ignores Justice Marshall’s subsequent admonition that, “[a]t the

same time,” the government need be protected “from attempts by the de-

fense to seek discovery as a means of harassment or of delay.” Wayte, 470

U.S. at 524 (Marshall, J., dissenting) (citing United States v. Murdock,

548 F.2d 599, 600 (5th Cir. 1977)). And, to that end, all of these state-

ments are in support of what would ultimately become Armstrong:

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 The Courts of Appeals have adopted a standard under which
a defendant establishes his right to discovery if he can show
that he has a “colorable basis” for a selective prosecution
claim. To make this showing, a defendant must allege suffi-
cient facts in support of his selective prosecution claim “to
take the question past the frivolous state.” In general, a de-
fendant must present “some evidence tending to show the ex-
istence of the essential elements of the defense.”

Wayte, 470 U.S. at 623-24 (Marshall, J., dissenting) (emphasis added). In

no way, then, does Justice Marshall’s dissenting opinion in Wayte support

Hill’s argument that this Court should approve the trial court’s conclu-

sion that he was entitled to an evidentiary hearing—if anything, it sup-

ports the Armstrong standard that Hill cannot satisfy.

III.   Conclusion

The court of appeals concluded that, “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 na-

ture of the mortgage-fraud charges and how the charges were investi-

gated within the DA’s office.” Hill, 2014 WL 7497992 at *10. “He did not

present any evidence that he was singled out for prosecution under cir-

cumstances that do not normally lead to prosecution.” Id. In sum, “[h]is

allegations about the DA’s office’s motivations for prosecuting him

25
amount to speculation,” and “Hill’s speculation is not evidence of vindic-

tive prosecution.” Id.

Hill still rejects that he was indicted because he committed felony

crimes, again asserting it was “due to Blue’s bribing and influence of Wat-

kins.” PDR at 27. But now, before this Court, Hill spends his time arguing

about the amount of evidence necessary to entitle a defendant to a hear-

ing. As to the court of appeals’s conclusion that he presented no evi-

dence—a conclusion which renders Hill’s preferred issue moot—Hill mus-

ters only two conclusory paragraphs, neither of which address the court

of appeals’s reasoning. See PDR at 63-64. Instead, Hill simply announces

the evidence “overwhelmingly proved...” and “clearly showed… Watkins

allowed himself to be corruptly influenced by Blue.” PDR at 50, 76.

Amicus Blue urges this Court to reject Hill’s entreaty to ignore the

law and the facts so that he may avoid responsibility for his crimes. There

is absolutely no evidence she influenced Watkins to indict Hill. Accord-

ingly, Hill was not entitled to a hearing on the issue, and the indictments

thus should not have been dismissed when Blue and Watkins then in-

voked their privilege.

Prayer

26
 For the foregoing reasons, Amicus Blue respectfully requests this

Court to affirm the court of appeals’s judgment vacating the trial judge’s

order dismissing the indictments in these cases and remanding the cases

to the trial court with instructions to reinstate the indictments against

Hill.

Respectfully submitted,

/s/ Robert N. Udashen
ROBERT N. UDASHEN, P.C.
Bar Card No. 01274700
rnu@sualaw.com

/s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Amicus Blue

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 Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the
foregoing Brief of Amicus Curiae Lisa Blue in Support of Appellant was
electronically served to Albert G. Hill, III and the State of Texas, by and
through each parties’ attorneys of record, on September 8, 2015.

/s/ Robert N. Udashen
ROBERT N. UDASHEN, P.C.

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

1.   the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because
this petition contains 4,840 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).

2.   the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word
2011 in 14-point Century Schoolbook.

/s/ Robert N. Udashen
ROBERT N. UDASHEN, P.C.

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