Hill, Albert G.

PD-0019-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
September 9, 2015 Transmitted 9/9/2015 11:41:47 AM
Accepted 9/9/2015 11:57:54 AM
ABEL ACOSTA
No. PD-0019-15, No. PD-0020-15 CLERK
No. PD-0021-15, No. PD-0022-15
___________________________________________________

IN THE TEXAS COURT OF CRIMINAL APPEALS
___________________________________________________

State of Texas, Appellant

v.

Albert G. Hill III, Appellee
___________________________________________________

On Discretionary Review from
Nos. 05-13-00421-CR-180, 05-13-00423-CR,
05-13-00424-CR, and 05-13-00425-CR from the
Fifth District Court of Appeals at Dallas
___________________________________________________

STATE’S OPENING BRIEF
_______________________________________________________

Charles “Chad” Baruch
Texas Bar No. 01864300
JOHNSTON ◊ TOBEY, P.C.
3308 Oak Grove Avenue
Dallas, Texas 75204
Telephone: (214) 741-6260
Facsimile: (214) 748-9217
Email: chad@jtlaw.com

District Attorney Pro Tem
Dallas County, Texas

Counsel for Appellant

ORAL ARGUMENT GRANTED
 Identity of Parties and Counsel

Appellant The State of Texas

Counsel in the Texas Court of Criminal Appeals and the Court of Appeals:
Charles “Chad” Baruch
District Attorney Pro Tem, Dallas County, Texas
JOHNSTON ◊ TOBEY, P.C.
3308 Oak Grove Avenue
Dallas, Texas 75204

The Office of the Dallas County District Attorney recused itself
after the election of Susan Hawk as DA. The trial court
appointed Chad Baruch, who served as Special Prosecutor in
the Dallas Court of Appeals, as District Attorney Pro Tem for
the case. Hill’s brief incorrectly includes Ms. Hawk and her
appellate chief as counsel for the State.

Counsel in the Trial Court and the Court of Appeals:
Craig Watkins (Mr. Watkins no longer is District Attorney)
Criminal District Attorney
Michael R. Casillas (Mr. Casillas no longer is with the DA’s Office)
Assistant District Attorney
Frank Crowley Courts Building
133 North Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

Counsel in the Trial Court:
Russell Wilson II (Mr. Wilson no longer is with the DA’s Office)
Lisa B. Smith
Donna Strittmatter
Stephanie Martin
Deborah Smith
Assistant District Attorneys
Frank Crowley Courts Building
133 North Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

i
Appellee Albert G. Hill III

Counsel in the Texas Court of Criminal Appeals and the Court of Appeals:
Michael Mowla
603 North Cedar Ridge, Suite 100
Duncanville, Texas 75116

Counsel in the Texas Court of Criminal Appeals:
L.T. Butch Bradt
14015 S.W. Freeway, Suite 4
Sugar Land, Texas 77478

Counsel in the Texas Court of Criminal Appeals, the Court of Appeals, and
the Trial Court:
George R. Milner III
MILNER FINN PRICE
2828 North Harwood Street, Suite 1950
Dallas, Texas 75201

Counsel in the Trial Court and the Court of Appeals:
John C. Hueston
Marshall A. Camp
Alison L. Plessman
IRELL & MANELLA, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067

Former Counsel in the Trial Court:
Royce West
WEST & ASSOCIATES, LLP
320 South R.L. Thornton Freeway, Suite 300
Dallas, Texas 75203

Anthony D. Lyons
LAW OFFICE OF ANTHONY LYONS
320 South R.L. Thornton Freeway, Suite 300
Dallas, Texas 75203

ii
Trial Court Judge:

Hon. Lena Levario (judge during trial)
204th Judicial District Court, Dallas County, Texas

Hon. Tammy Kemp (current judge)
204th Judicial District Court, Dallas County, Texas

iii
 Table of Contents

Identity of Parties and Counsel ................................................................................. i

Table of Contents .................................................................................................... iv

Index of Authorities ................................................................................................ vi

Statement of the Case............................................................................................... 1

Statement Regarding Oral Argument ....................................................................... 2

Statement of Issues .................................................................................................. 2

Statement of Facts.................................................................................................... 3

1. After settling family trust litigation, Mr. Hill is sued by his former
lawyers and indicated for mortgage fraud.................................................. 4

2. Mr. Hill alleges prosecutorial misconduct in an effort to avoid
paying the $20 million judgment or facing a criminal trial ........................ 6

3. A federal court deems Mr. Hill’s allegations “supposition and
speculation” .............................................................................................. 9

4. Relying on the same allegations rejection by the federal court, the
trial court conducts an evidentiary hearing and dismisses the
indictments ............................................................................................. 11

5. The Dallas Court of Appeals reinstates the indictments ......................... 19

Summary of the Argument .....................................................................................20

Argument ............................................................................................................... 21

I. The trial court erred in ordering an evidentiary hearing because Hill
failed to establish any constitutional violation ............................................... 24

A. Hill failed to establish selective prosecution ........................................... 25

1. There is no presumption of selective prosecution ............................ 25

iv
 2. Hill never met his “absolute requirement” to show that the
DA’s Office failed to prosecute a similarly situated defendant ........ 25

B. Hill failed to establish vindictive prosecution ......................................... 30

1. Hill relies on a presumption that applies only to trial
proceedings ..................................................................................... 25

2. Hill provided no evidence that he was vindictively prosecuted ....... 32

C. Hill never even really explains his claims ................................................ 35

D. Hill cannot rely on the trial court’s findings of fact ................................ 38

E. Hill cannot rely on an adverse inference against the State ...................... 39

F. Hill cannot rely on public policy concerns .............................................. 39

G. Conclusion: The evidentiary hearing should never have occurred .........40

II. The trial court erred in granting Hill an evidentiary hearing because he
presented no evidence to support his request ............................................. 43

III. The trial court erred in dismissing the cases with prejudice ........................ 49

Conclusion ............................................................................................................. 54

Certificate of Compliance....................................................................................... 55

Certificate of Service .............................................................................................. 55

v
 Index of Authorities

Cases

Attorney Gen. of United States v. Irish People, Inc., 684 F.2d 928 (D.C. Cir.
1982), cert. denied, 459 U.S. 1172 (1983). ...................................................... 27

Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL 2217334 (N.D. Tex. May 29,
2014) .....................................................................................................8, 9, 11

Bordenkircher v. Hayes, 434 U.S. 357 (1978)............................................................22

Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996) .......................................... 50

Eleby v. State, 172 S.W.3d 247 (Tex. App.—Beaumont 2005, pet. ref’d)............... 41

Ex parte Quintana, 346 S.W.3d 681 (Tex. App.—El Paso 2009, pet. ref’d) ........... 41

Franks v. Delaware, 438 U.S. 154 (1978) ................................................................. 45

Galvin v State, 988 S.W.2d 291 (Tex. App.—Texarkana 1999, pet. ref’d) ............. 41

Gawlik v State, 608 S.W.2d 671 (Tex. Crim. App. 1980) ...................................25-26

Guzman v. State, 85 S.W.3d 242 (Tex. Crim. App. 2002) ................................. 21-22

In re United States, 397 F.3d 274 (5th Cir. 2005) .............................................. 24, 29

Jarrett v. United States, 822 F.2d 1438 (7th Cir. 1987) ...........................................26

Jones v. White, 992 F.2d 1548 (11th Cir. 1993), cert. denied, 481 U.S. 1055
(1993). .......................................................................................................... 27

Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) ..........................23, 25, 30-31

Reed v. Farley, 512 U.S. 339 (1994) ......................................................................... 51

Saudi v. Brieven, 176 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied) ......................................................................................................... 38

Sonnier v. Sonnier, 331 S.W.3d 211 (Tex. App.—Beaumont 2011, no pet.) ............ 38

vi
State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d
207 (Tex. Crim. App. 2007) ......................................................................... 41

State v. Ford, 158 S.W.3d 574 (Tex. App.—San Antonio 2005, pet. dism’d) ......... 52

State v. Frye, 897 S.W.2d 324 (Tex. Crim. App. 1995) ..................................... 41, 50

State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998) ................................ 21-22

State v. Hill, No. 05-13-00421-CR, 05-13-00423-CR, 05-13-00424-CR, 05-13-
00425-CR, 2014 WL 7497992 (Tex. App.—Dallas Dec. 29, 2014) ..... 2, 19-20

State v. Johnson, 821 S.W.2d 609 (Tex. Crim. App. 1991) ......................................49

State v. Newton, 158 S.W.3d 582 (Tex. App.—San Antonio 2005, pet.
dism’d) ......................................................................................................... 53

State v. Plambeck, 182 S.W.3d 365 (Tex. Crim. App. 2005) ....................................49

State v. Terrazas, 962 S.W.2d 38 (Tex. Crim. App. 1998) ...................................... 53

State v. Terrazas, 970 S.W.2d 157 (Tex. App.—El Paso 1998), aff’d, 4
S.W.3d 720 (Tex. Crim. App. 1999) ....................................................... 41, 52

Stephens v. State, 978 S.W.2d 728 (Tex App.—Austin 1998, pet. ref’d) ................ 52

United States v. Armstrong,
517 U.S. 456 (1996) ............................ 22, 23, 24, 26, 28, 40, 41, 45-46, 47, 50

United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995), reversed, 517 U.S.
456 (1996).....................................................................................................28

United States v. Awan, 459 F.Supp.2d 167 (E.D.N.Y. 2006) ..................................42

United States v. Blackley, 986 F.Supp. 616 (D.D.C. 1997) .......................................42

United States v. Breslin, 916 F. Supp. 438 (E.D. Pa. 1996) ...................................... 52

United States v. Chem. Found. Inc., 272 U.S. 1 (1926) ............................................. 23

United States v. Dean, 119 F. Supp. 2d 81 (D. Conn. 2000) ....................................42

vii
United States v. Falcon, 347 F.3d 1000 (7th Cir. 2003) ...........................................42

United States v. Falk, 479 F.2d 616 (7th Cir. 1973) ................................................. 41

United States v. Fares, 978 F.2d 52 (2d Cir. 1992) .................................................. 27

United States v. Feurtado, 191 F.3d 420 (4th Cir. 1999) .......................................... 52

United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000)................................ 31

United States v. Gold, 470 F. Supp. 1336 (N.D. Ill. 1979) ........................................ 52

United States v. Goodwin, 457 U.S. 368 (1982) .................................................. 22, 31

United States v. Goulding, 26 F.3d 656 (7th Cir. 1994), cert. denied, 513 U.S.
1061 (1994) ................................................................................................... 27

United States v. Greenwood, 796 F.2d 49 (4th Cir. 1986) ......................................... 27

United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982) .............................. 51

United States v. Jennings, 724 F.2d 436 5th Cir. 1984) ...........................................24

United States v. Johnson, 91 F.3d 695 (5th Cir. 1996) .............................................. 31

United States v. Kerley, 787 F.2d 1147 (7th Cir. 1986) .............................................42

United States v. Lawson, 502 F. Supp. 158 (D. Md. 1980) ....................................... 52

United States v. Morrison, 449 U.S. 361 (1981) ........................................................ 50

United States v. Omni Int’l Corp., 634 F. Supp. 1414 (D. Md. 1986) ....................... 52

United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) ................................... 27

United States v. Peete, 919 F.2d 1168 (6th Cir. 1990). .............................................. 27

United States v. Penagaricano-Soler, 911 F.2d 833 (1st Cir. 1990) ............................ 27

United States v. Perry, 152 F.3d 900 (8th Cir. 1998) ................................................ 41

United States v. Peterson, 652 F.3d 979 (8th Cir. 2011)....................................... 41-42

viii
United States v. Slough, 679 F. Supp.2d 55 (D.D.C. 2010) ...................................... 52

United States v. Taylor, 487 U.S. 326 (1988) ........................................................... 52

United States v. Torquato, 602 F.2d 564 (3d Cir. 1979), cert. denied, 444 U.S.
941 (1979) ..................................................................................................... 27

United States v. Webster, 162 F.3d 308 (5th Cir. 1998) ................................ 22, 23, 24

United States v. Zone, 403 F.3d 1101 (9th Cir. 2005)..........................................47-48

Wayte v. United States, 470 U.S. 598 (1985) ............................................... 40, 42, 46

Webb v. Maldonado, 331 S.W.3d 879 (Tex. App.—Dallas 2011, pet. denied) .......... 39

Statutes and Rules

TEX. CODE. CRIM. PROC. ANN. art. 2.07 (West 2005) ............................................ 53

TEX. R. EVID. 504 ................................................................................................... 39

TEX. R. EVID. 513 .................................................................................................... 39

Other Authorities

Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77
WASH. U. L.Q. 713 (1999) ................................................................................. 28, 40

WAYNE R. LAFAVE, JEROLD H. ISREAL, NANCY J. KING & ORIN S. KERR,
CRIMINAL PROCEDURE (3d ed. 2010) ...................................................................... 31

ix
 Statement of the Case

A Dallas County 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 State later dismissed the charges against Hill’s wife.

Hill filed a motion alleging prosecutorial misconduct and seeking

dismissal of the indictments or, alternatively, an evidentiary hearing and

discovery to develop evidence of misconduct.2 Over the State’s objections,

the trial court determined that Hill was entitled to a hearing “to try to

prove” his allegations.3

During the evidentiary hearing, Dallas County District Attorney Craig

Watkins asserted privilege and refused to testify about his decision to

prosecute the case. Concluding that this refusal denied Hill “his right to

have a meaningful hearing” on his motion,4 the trial court dismissed the

indictments with prejudice.5

1
CR-180-I at 6; CR-181-I at 5-6; CR-182-I at 6; CR-183-I at 6; CR-191-I at 5. Citations to
2
CR-180-I at 31-67; CR-181-I at 30-66; CR-182-I at 27-63; CR-182-I at 27-63; CR-191-I at
26-62.
3
2 R.R. at 30-31.
4
CR-180-S at 115; CR-182-S at 115; CR-183-S at 114; CR-191- S at 100.
5
App. 1; CR-180-III at 1100; CR-182-III at 978; CR-183-III at 977; CR-191-II at 577.

1
 The State appealed, asserting four issues. The court of appeals

sustained the State’s second issue, holding that Hill failed to allege facts

establishing any constitutional violation and the trial court therefore erred in

granting him an evidentiary hearing. State v. Hill, No. 05-13-00421-CR, 05-

13-00423-CR, 05-13-00424-CR, 05-13-00425-CR, 2014 WL 7497992, at *1

(Tex. App.—Dallas Dec. 29, 2014). Justice Brown authored the opinion,

joined by Justice O’Neill; Justice Bridges dissented. Hill now appeals.

Statement Regarding Oral Argument

The State agrees that oral argument would assist this Court in

deciding the federal constitutional standards governing this appeal.

Statement of Issues

1. Did the trial court abuse its discretion by granting Hill an

evidentiary hearing and dismissing the indictments where he failed to

present evidence of a constitutional violation?

2. Did the trial court abuse its discretion by conducting an

evidentiary hearing and dismissing the indictments where Hill’s critical

allegations lacked any supporting evidence?

2
 3. Did the trial court abuse its discretion by dismissing the

indictments with prejudice where dismissal without prejudice would have

cured the claimed constitutional violations?

Statement of Facts

Al Hill III alleges constitutional defects in his criminal prosecution, all

of them relating to what he says is “compelling circumstantial evidence”6 of

an effort by former Dallas County District Attorney Craig Watkins to assist

Lisa Blue in her federal lawsuit to collect legal fees from Hill. But despite the

apparent evidence of his guilt, and even after—

• deposing Blue twice,

• deposing her co-counsel, Stephen Malouf,

• reviewing the text messages between Blue and
Watkins (and persuading a federal judge to do the
same), and

• questioning the three current and former ADAs who
worked on his prosecution,

Hill cannot produce a shred of evidence that Blue and Watkins ever had a

single substantive conversation about the criminal case—much less that they

entered into a conspiracy to indict him just before the federal fee trial. The

6
Petitioner’s Brief at 13.

3
court of appeals properly concluded that Hill’s speculative allegations did

not entitle him to an evidentiary hearing under established federal law.

1. After settling family trust litigation, Hill is sued by his former
lawyers and indicted for mortgage fraud.

Albert G. Hill III is the great-grandson of deceased oil magnate H.L.

Hunt. In 2007, Hill became embroiled in federal litigation with family

members—including his father, Albert G. Hill Jr.—over assets including a

sizeable trust.7 The federal court in the trust litigation sanctioned Hill’s

father for perjury.8

Shortly thereafter, an attorney for Hill’s father sent documents to the

Dallas County District Attorney’s Office suggesting that Hill and his wife,

Erin, made false statements to procure a $500,000 loan.9 The Hills signed

documents claiming sole ownership of a $2.8 million house they pledged as

collateral for the loan when apparently they owned only a 20% interest in that

house.10

7
CR-180-I at 36; CR-181-I at 35; CR-182-I at 32; CR-183-I at 32; CR-191-I at 31.
8
5 R.R., Def. Exh. 1, DF-PT-3, at 31.
9
5 R.R., St. Exh. 1, at 1; 4 R.R. at 44-45, 76-77, 137-38; CR-180-I at 714-74; CR-181-I at
623-83; CR-182-I at 622-82; CR-183-I at 621-81 4 R.R. at 44-45, 76-77, 137-38.
10
5 R.R., St. Exh. 1, at 1, C, D.

4
 The DA’s Office subsequently received another complaint against

Hill, this time from the trustee of the trust owning an 80% interest in the

same house.11 The Office initiated an investigation of the matter.12

Meanwhile, Hill hired a team of prominent Dallas lawyers to represent

him in the federal trust lawsuit on a contingent fee basis. Those lawyers—

Lisa Blue, Charla Aldous, and Steve Malouf—represented Hill until he

settled the case.13 Blue also met with Dallas County ADA Terri Moore in an

effort to persuade her not to pursue criminal charges against the Hills. In the

meeting, Blue provided Moore with a copy of the federal order concerning

perjury by Hill’s father. Moore instructed the ADAs running the

investigation that Hill’s father could not be used as a witness.14

After the meeting between Blue and Moore, a fee dispute arose

between Hill and his lawyers. The lawyers sued Hill in federal court to

collect their fees.15 Shortly before trial of the federal fee lawsuit, the DA’s

Office presented the criminal case against Hill and his wife to a grand jury,

11
4 R.R. at 77-79, 138-40.
12
CR-S-I at 1-33; 4 R.R. at 140, 148-49. The appellate record also contains two sealed
volumes designated in this brief as S-I and S-II. Any reference to documents in the sealed
volumes is in the most general terms to avoid any breach of grand jury confidentiality.
13
CR-180-I at 608-851; CR-181-I at 517-760; CR-182-I at 516-759: CR-183-I at 515-758.
14
4 RR at 46-47; CR-180-I at 854-55; CR-182-I at 178: CR-183-I at 178.
15
5 R.R., Def. Exh. 1, DF-PT-9, at 1, 38-40.

5
which issued multiple indictments on March 31, 2011.16 Hill then asserted his

Fifth Amendment privilege during the attorney’s fee trial.17 In January 2012,

the federal court entered judgment against Hill awarding his former

attorneys more than $20 million.18

2. Hill alleges prosecutorial misconduct in an effort to avoid paying
the $20 million judgment or facing a criminal trial.

In November 2012—while still challenging the $20 million federal

judgment—Hill filed unsworn motions in his criminal cases seeking

dismissal of the indictments or, alternatively, an “evidentiary hearing and

discovery into the issues surrounding the District Attorney’s decision to

indict this case.”19 By this time, the DA’s Office had dismissed the charges

against Hill’s wife.

Hill says the State stipulated to the “authenticity and admissibility” of

his attachments.20 Actually, the State never stipulated to admissibility. The

trial court admitted Hill’s Exhibits 1-4 only “for record purposes.”21 And

each time the matter arose (at least four times) the State’s attorneys said

16
CR-180-I at 6-7; CR-181-I at 5-6; CR-182-I at 6-7; CR-183-I at 6-7; CR-191-I at 5; 4 R.R.
at 167-69.
17
CR-180-II at 1045-57; CR-181-II at 929-41; CR-182-II at 934-46; CR-183-II at 933-45.
18
CR-180-I at 138-148; CR-180-I at 33.
19
CR-180-I at 66; CR-182-I at 62; CR-183-I at 62; CR-191-I at 61.
20
Petitioner’s Brief at 38.
21
4 R.R. at 26, 30-31.

6
they only were waiving any authenticity objection—not that they were

stipulating to admissibility or waiving other objections.22

In his motions, Hill asserted federal constitutional claims alleging that

the DA’s Office: (1) selectively prosecuted him in violation of his right to

equal protection, (2) vindictively prosecuted him in violation of his right to

due process, and (3) violated his right to due process by prosecuting him

despite a financial conflict of interest arising from campaign contributions by

Blue to Watkins. He also claimed that the DA’s Office failed to follow its

purported policy of permitting a criminal defendant’s attorney to address the

grand jury.23

Hill attached a series of documents to his unsworn motions.24 These

attachments consisted of 44 exhibits purporting to be letters, pleadings,

campaign contribution filing forms, website printouts, telephone records,

newspaper articles, and other documents.25 Hill tendered no affidavit

testimony in support of his motion.26 Hill did include shorts excerpts from a

few depositions and hearing transcripts. But these excerpts—with two

22
4 R.R. at 26-31.
23
CR-180-I at 31-67; CR-182-I at 27-63; CR-183-I at 27-63; CR-191-I at 26-62.
24
CR-180-I at 31-488; CR-182-I at 27-484; CR-183-I at 27-484; CR-191-I at 26-483.
25
CR-180-I at 68-488; CR-182-I at 64-484; CR-183-I at 64-484; CR-191-I at 63-483.
26
CR-180-I at 31-488; CR-182-I at 27-484; CR-183-I at 27-484; CR-191-I at 26-483.

7
exceptions to be discussed momentarily—had nothing to do with his

constitutional claims.

A month later, Hill filed a post-judgment motion in the federal lawsuit

making the same allegations and asking that the court vacate the judgment

against him based on the purported conspiracy between Blue and Watkins to

use criminal indictments to affect the outcome of the federal fee trial.27

In his state and federal motions, Hill alleged that Watkins functioned

as Blue’s “stalking horse” in seeking indictments. Blue has represented

Watkins (this representation was the subject of one of the deposition

excerpts attached to Mr. Hill’s motion28), made political contributions to

him since at least 2007, and funded a $100,000 SMU scholarship in his

name.29 During the period leading to the indictments, Blue contributed

$7,500 to Watkins—out of total contributions exceeding $120,000.30 She

also contributed during that period to the campaigns of numerous other

Dallas County office holders—including $10,000 in contributions to one of

Hill’s former lawyers in this case.31

27
Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL 2217334, at *2 (N.D. Tex. May 29, 2014).
28
CR-180-I at 175-183; CR-182-I at 171-79; CR-183-I at 171-79; CR-191-I at 170-78.
29
CR-180-I at 39; CR-182-I at 35; CR-183-I at 35; CR-191-I at 34.
30
CR-180-I at 106-13; CR-182-I at 102-09; CR-183-I at 102-09; CR-191-I at 101-08.
31
CR-180-I at 850; CR-182-I at 758; CR-183-I at 757.

8
 Hill attached records showing that telephone and text message

communications between Blue and Watkins spiked in the weeks before the

indictments.32 Blue hosted a political fundraiser for Watkins during that

same period.33 Hill produced no evidence that Blue and Watkins engaged in

any substantive discussion of his case. A federal judge in the attorney’s fee

lawsuit reviewed the text messages between Blue and Watkins in camera—

finding that none of them related to the Hill indictments.34 Blue testified that

she had two telephone conversations with Watkins about the indictments,

each lasting less than a minute and neither involving substantive discussion

(this also was the subject of a deposition excerpt attached to Hill’s motion).35

3. A federal court deems Hill’s allegations “supposition and
speculation.”

A federal magistrate judge denied Hill’s request for post-judgment

relief, concluding that his accusations “amount[ed] to nothing more than

32
CR-180-I at 40-43, 212-408; CR-182-I at 36-40, 208-404; CR-183-I at 36-40, 208-404;
CR-191-I at 35-38, 207-403.
33
CR-180-II at 1052; CR-182-II at 941; CR-183-II at 940.
34
Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL 2217334, at *2 (N.D. Tex. May 29, 2014);
see also CR-180-II at 1051; CR-182-II at 940; CR-183-II at 939.
35
CR-180-I at 198-201; CR-181-I at 197-200; CR-182-I at 196-99; CR-183-1 at 194-96; CR-
191-I at 193-96.

9
supposition and speculation.”36 In considering Hill’s allegations about

campaign contributions, the magistrate judge noted that:

Blue and D.A. Watkins have had a personal, professional,
and financial relationship since at least 2007, well before
[the lawyers were] involved in the Hills’ case . . . [and]
Blue’s longstanding relationship with D.A. Watkins
actually undermines their suggestion that she behaved
unusually by communicating with Watkins around the
time of the indictments and holding a fundraiser for him.
Given Blue’s and D.A. Watkins’s long relationship and
her previous donations to his campaigns, neither of these
undertakings appears unusual.37

In addressing Hill’s claims about the spike in text messages, the

magistrate judge noted that:

Judge [Reid] O’Connor reviewed Blue’s text messages to
and from D.A. Watkins during the timeframe in question.
That discovery yielded no evidence that Blue and D.A.
Watkins ever discussed the Hills’ indictments outside of
the two brief instances when D.A. Watkins called Blue
prior to the return of the indictments—instances about
which Blue previously had testified and of which the Hills
have long since been aware.”38

In short, according to the magistrate judge:

The Hills simply do not demonstrate by clear and
convincing evidence that [the lawyers were]
involved in the Hills’ indictment.39

36
CR-180-II at 1050; CR-182-I at 939; CR-183-I at 938.
37
CR-180-II at 1051; CR-182-II at 940; CR-183-II at 939.
38
CR-180-II at 1051; CR-182-II at 940; CR-183-II at 939.
39
CR-180-II at 1052; CR-182-II at 941; CR-183-II at 940.

10
 In May 2014, the federal district court judge echoed these findings,

stating that the Hills relied on “supposition and speculation in place of

evidentiary support . . . .” Blue v. Hill, No. 3:10-CV-2269-L, 2014 WL

2217334, at *4 (N.D. Tex. May 29, 2014). According to the federal court:

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 Watkins were related
to the criminal charges against them, as opposed to
legitimate purposes.

...

The Hills do not submit evidence, direct or
circumstantial, to establish that Blue . . . influenced the
District Attorney’s Office to indict them wrongfully, or
that such alleged conduct was intended to give [Blue] an
unfair advantage in the attorneys’ fee dispute.

Id.

4. Relying on the same allegations rejected by the federal court, the
trial court conducts an evidentiary hearing and dismisses the
indictments.

The State filed a response to Hill’s motion in the criminal case and

tendered supporting affidavits from Donna Strittmatter and Stephanie

Martin, two of the assistant district attorneys involved in prosecuting Hill.

11
Both prosecutors testified that the DA’s Office had no policy requiring that

the target of a criminal investigation be permitted to address the grand jury.40

They also denied knowing about Hill’s dispute with Blue.41 Finally, Martin

testified that the prosecution of Hill was not unusual:

The Specialized Division regularly prosecutes
crimes similar to those committed by Mr. Hill . . .
Prior to Mr. Hill’s indictment, I personally and
successfully prosecuted four other mortgage fraud
cases where no money was funded and, thus, no
actual loss was suffered.42

The trial court scheduled a hearing on Hill’s motion to dismiss. In

anticipation of that hearing, Hill served subpoenas on Watkins and other

members of his staff concerning the Hill prosecution.43 Watkins filed

motions to quash the subpoenas.44

On February 14, 2013, the trial court conducted a hearing on Hill’s

motion. No one introduced any evidence at the hearing. Hill’s lawyers

argued that he was entitled to an evidentiary hearing and, ultimately,

dismissal based on his federal constitutional claims. But they also admitted

40
CR-180-I at 774, 778; CR-182-I at 682, 686; CR-183-I at 681, 685.
41
CR-180-I at 774, 778; CR-182-I at 682, 686; CR-183-I at 681, 685.
42
CR-180-I at 778; CR-182-I at 686; CR-183-I at 685.
43
CR-180-I at 523-67.
44
CR-180-I at 506-47.

12
that they required the evidentiary hearing to develop evidence of these

federal claims:

THE COURT: So my question is: What kind of
evidence do you expect to present to convince the
Court that he doesn’t present – that he doesn’t
prosecute these types of cases . . . ?

MR. HUESTON: Well let me explain one – Your
Honor, this is – it kinda proceeds in buckets.
Bucket number one is, there was a corrupt deal that
caused this case to be indicted. That’s gonna come
out in the examinations of Mr. Watkins and Ms.
Blue . . . Number two, we’re gonna show that, even
independent of a corrupt deal – let’s put that aside.
And we’re going to elicit that – that this case has
all the hallmarks of a case that would normally be
declined by this office. That is selective
prosecution.45
...

THE COURT: But what evidence was presented
to convince the Court that this type of case would
not normally have been indicted?

MS. PLESSMAN: This –

THE COURT: And are you prepared to present
such evidence today?

MS. PLESSMAN: I – I think we are prepared to
present such evidence today.46
...

45
2 R.R. at 15-16 (emphasis added).
46
2 R.R. at 13-14 (emphasis added).

13
 MR. HUESTON: . . . These circumstances, in part
and through the testimony, I think, we will elicit,
will show that he has been vindictively and
selectively prosecuted.47

The State argued that Hill’s failure to provide any evidence establishing a

constitutional violation precluded an evidentiary hearing.48

The trial court overruled the State’s objections to the subpoenas,49

scheduled an evidentiary hearing,50 and ordered Watkins to appear and

testify.51 But even the trial court acknowledged the lack of evidence at that

time to support Hill’s allegations, telling his lawyers “your exhibits on your

motions are not evidence”52 and saying:

THE COURT: . . . So is that the type of evidence
that you’re gonna be presenting to the Court. I
mean, I don’t understand how you’re going to get
there . . . .53
...

THE COURT: Yes. I am granting the Defendant
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.54

47
2 R.R. at 16 (emphasis added).
48
2 R.R.at 31.
49
2 R.R. at 53.
50
2 R.R. at 30.
51
2 R.R. at 54.
52
3 R.R. at 23-24.
53
2 R.R. at 17 (emphasis added).
54
2 R.R. at 30-31 (emphasis added).

14
 On March 4, 2013, the trial court convened the evidentiary hearing

but then rescheduled it for the following week. By this time, Watkins had

sought mandamus relief from the Dallas Court of Appeals and this Court.55

On March 7, 2013—with the mandamus petitions having been

denied—the trial court conducted its evidentiary hearing. Hill’s lawyers

called Watkins as a witness and asked him the following two questions:

Mr. Watkins, before the indictments of the Hills
were handed down, you had at least one or more
phone calls with Lisa Blue concerning the Hills,
correct?

You said to Ms. Blue, words to the effect of, there
could be an indictments of Mr. Hill, or both the
Hills. Are you still interested in the indictments?
Correct, sir?

Watkins refused to answer, asserting the attorney-client privilege and work

product exemption. The trial court held him in contempt of court.56

The trial court then conducted a lengthy evidentiary hearing during

which Moore testified that Watkins attended a “pitch session” on the Hill

indictments.57 This, she testified, was not unusual; Watkins often attends

55
CR-180-III at 1163-1213; CR-182-III at 1042-92; CR-183-III at 1041-91; CR-191-II at
599-649.
56
4 R.R. at 17.
57
4 R.R. at 38.

15
pitch sessions.58 Moore testified that she had no knowledge of Watkins ever

discussing the Hill case with Blue.59 And she denied the existence of any

grand jury notice policy—a notion she deemed “laughable” due to the

thousands of people indicted each year in Dallas County.60 Finally, Moore

testified that she never spoke to Watkins about the Hill case other than

during the pitch session.61

Strittmatter and Martin each testified that Watkins never said

anything to them about Blue.62 They testified that the only involvement by

Watkins in the case was his attendance at the pitch session.63 Martin

remembered Watkins making comments and suggestions during the pitch

session but that was the only time he discussed the case with her.64

In an effort to bolster his equal protection claim, Hill’s lawyers

questioned Strittmatter and Martin about the prosecution of cases involving

fraud on a loan application where the funding party makes no complaint and

the money is repaid. Strittmatter termed this “unexceptional,” explaining

that the office frequently pursues cases where the defendant attempts to

58
4 R.R. at 39.
59
4 R.R. at 43-44.
60
4 R.R. at 51, 53.
61
4 R.R. at 60.
62
4 R.R. at 81, 107, 163.
63
4 R.R. at 85, 162.
64
4 R.R. at 163-64.

16
procure funds by fraud but never gets the money.65 Martin testified about

four other instances where the DA’s Office prosecuted what she considered

similar crimes.66

Based on these answers about similar cases, Hill’s lawyers asked

Strittmatter and Martin about cases involving exactly the same facts. Both of

them stated that they were unaware of any case involving precisely the same

facts.67 No one identified any person similarly situated to Hill and not

prosecuted by the DA’s Office.68

Hill contends that Martin admitted during her testimony that the Hill

prosecution was “unprecedented.”69 Actually, Martin’s testimony about the

Hill prosecution being unprecedented related only to her caseload. Hill’s

lawyer asked whether she had presented a case like Hill’s to the grand jury.

Martin said the prosecution was “unprecedented” for her as a junior

prosecutor—not for the DA’s Office.70

According to the trial court, testimony during the hearing made the

65
4 R.R. at 115, 126.
66
4 R.R. at 180, State’s Exh. 5.
67
4 R.R. at 127, 155.
68
4 R.R. at 127, 155.
69
Petitioner’s Brief at 15.
70
4 R.R. at 155.

17
case “smell really bad.”71 The trial court concluded that the refusal by

Watkins to testify violated Mr. Hill’s “right” to an evidentiary hearing:

If he has a right to have a hearing and the State is
denying him that right by failing to testify, it seems
to me – I’m thinking that --- because, right now,
he’s being denied his rights to have this hearing –
that he’s entitled to a dismissal.72

The trial court said 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. And on that basis, I’m

dismissing the cases.”73 The trial court’s findings of fact and conclusions of

law likewise state that the refusal by Watkins to testify denied Hill of “his

right to have a meaningful hearing” on his motion.74

The trial court orally pronounced dismissal during the hearing on

March 7, 2013,75 and later signed written orders dismissing the cases with

prejudice.76 Nearly five months later, on August 2, 2013, the trial court filed

findings of fact and conclusions of law.77

On August 23, 2013, a specially appointed visiting judge conducted a

71
4 R.R. at 192.
72
4 R.R. at 192.
73
4 R.R. at 219.
74
1st Supp. CR 180 at 115-16.
75
4 R.R. at 219.
76
CR-180-III at 1100; CR-182-III at 978; CR-183-III at 977; CR-191-II at 577.
77
CR-180-S at 78-116; CR-182-S at 78-116; CR-183-S at 77-115; CR-191-S at 63-101.

18
de novo review of the trial court’s contempt finding against Watkins. The

visiting judge acquitted Watkins of contempt, holding that: (1) the

evidentiary hearing was improper due to Hill’s failure to provide evidence

establishing his entitlement to it, and (2) Watkins properly refused to testify

based on the work product exemption.78

5. The Dallas Court of Appeals reinstates the indictments.

The State appealed, asserting four issues: (1) Hill’s reliance on

unauthenticated attachments rather than evidence precluded his entitlement

to an evidentiary hearing, (2) Hill’s allegations, even if credited, failed to

establish any prima facie federal constitutional violation, (3) Watkins

properly asserted the work product exemption in refusing to testify, and (4)

even if everything Hill alleged was true, he was entitled only to a dismissal

without prejudice.

The court of appeals confirmed that Hill “attached forty-four exhibits

in support of his motion, most of which were unauthenticated or not

otherwise identified by affidavit testimony.” Hill, 2014 WL 7497992, at *3.

Though noting that it was “troubled by the unsworn allegations in and

authenticity of the documents attached to Hills motion,” the court of

78
2nd Supp. CR-180 at 4-5.

19
appeals held that it did not need to address this issue because “Hill did not

meet the standard required to warrant an evidentiary hearing even when we

consider the documents attached to Hill’s motion.” Id. at *6.

The court of appeals held that even crediting Hill’s documents, he

failed to make the showing required to entitle him to an evidentiary hearing,

and the trial court erred in affording him that hearing to try and produce

such evidence. Id. at *10-11 (citations omitted).

Summary of the Argument

This appeal does not really implicate Mr. Hill’s stated core issue

concerning the standard necessary to probe prosecutorial motive. That is

because Hill’s motion failed to meet any standard more demanding than

supposition and speculation. Indeed, Hill’s brief really fails even to explain in

any detail how he met any standard governing his claims for selective and

vindictive prosecution. Most of the brief consists of purported facts and

abstract discussion of prosecutorial misconduct—with little effort to link the

two.

Hill failed to allege the non-prosecution of any similarly situated

defendant—something the United States Supreme Court has deemed an

“absolute requirement” for a selective prosecution claim. Hill failed to

20
provide any evidence that Watkins prosecuted him to assist Blue; indeed,

Hill failed to provide any evidence that Watkins and Blue ever engaged in a

single substantive conversation about him. Hill simply speculates that they

did. But this speculation cannot overcome the presumption of good faith that

attaches to every prosecution. As a result, even crediting Hill’s “evidence”

and affording him a “colorable basis” standard, he was not entitled to an

evidentiary hearing.

Independently, the U.S. Supreme Court has made clear that claims

like selective and vindictive prosecution must be supported by actual

evidence. Hill’s “evidence” consists almost entirely of unsworn allegations

and unauthenticated documents attached to his motions. Thus, this appeal

really does not require clarification of the meaning of “some evidence”

because Hill failed to provide any evidence to support his allegations. This

failure precluded his entitlement to an evidentiary hearing.

Argument

Hill asserted federal constitutional claims. Texas courts must “follow

the decisions and reasoning of the United States Supreme Court on federal

constitutional issues.” Guzman v. State, 85 S.W.3d 242, 249 n.24 (Tex.

Crim. App. 2002) (citing State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim.

21
App. 1998). Moreover, Texas courts may give persuasive effect to federal

circuit court decisions on such claims. Id. (citations omitted). The court of

appeals followed established federal law—particularly the U.S. Supreme

Court’s decision in United States v. Armstrong, 517 U.S. 456, 464 (1996)—in

reaching its decision.

Under federal law, a trial court’s decision to conduct an evidentiary

hearing must be supportable by the legal principles and standards governing

entitlement to such hearings. See, e.g., United States v. Webster, 162 F.3d 308,

334 (5th Cir. 1998) (defendant “not automatically entitled to evidentiary

hearing to make the required showing”).

A prosecutor possesses broad authority in determining whom to

prosecute. United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982). So long as

the prosecutor has probable cause to believe the accused committed an

offense, the decision whether to bring a case before the grand jury generally

rests entirely in the prosecutor’s discretion. Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978).

Of course, “a prosecutor’s discretion ‘is subject to constitutional

constraints.’” Armstrong, 517 U.S. at 464 (citation omitted). But assertion of

a constitutional claim based on a prosecutor’s charging function asks a court

22
“to exercise judicial power over a ‘special province’ of the Executive.” Id.

(citation omitted).

As a result, courts addressing challenges to the exercise of

prosecutorial discretion presume that prosecutors act in good faith to

discharge their duty to bring criminals to justice. Armstrong, 517 U.S. at 464

(citation omitted). “Courts must presume that a criminal prosecution is

undertaken in good faith and in nondiscriminatory fashion to fulfill the

State’s duty to bring violators to justice.” Neal v. State, 150 S.W.3d 169, 173

(Tex. Crim. App. 2004). “[I]n the absence of clear evidence to the contrary,

courts presume that [prosecutors] have properly discharged their official

duties.” Armstrong, 517 U.S. at 464 (quoting United States v. Chem. Found.

Inc., 272 U.S. 1, 14-15 (1926)).

This presumption carries over to a defendant’s request for an

evidentiary hearing or discovery. See Webster, 162 F.3d at 334; 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”).

A defendant alleging prosecutorial misconduct must make out a prima

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

23
discovery. See In re United States, 397 F.3d 274, 284 (5th Cir. 2005); Webster,

162 F.3d at 334. Thus, a defendant must “present facts ‘sufficient to create a

reasonable doubt about the constitutionality of [his] prosecution’ . . . .”

Webster, 162 F.3d at 334 (citation omitted) These facts must be more than

allegations. See United States v. Jennings, 724 F.2d 436, 445–46 (5th Cir.

1984). To obtain discovery on a claim for selective or vindictive prosecution,

the defendant must produce “some evidence tending to show the existence

of the essential elements” of the claim. 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”).

I. The trial court erred in ordering an evidentiary hearing because
Hill failed to establish any constitutional violation.

Hill sought an evidentiary hearing to ascertain the DA’s motives for

prosecution. The trial court dismissed the indictments because the refusal by

Watkins to testify denied Hill of his “right” to do so. Thus, if Hill failed to

meet the standard required to merit an evidentiary hearing—if he never was

entitled to that hearing in the first place—then the trial court abused its

discretion by dismissing the indictments based on the lack of a “meaningful”

hearing.

On appeal to this Court, Hill apparently no longer seeks to assert his

24
due process claim concerning lack of an impartial prosecutor. His petition for

discretionary review and merits brief mention this claim only in detailing the

procedural history of the case. As a result, the State will address only the

claims for selective and vindictive prosecution.

A. Hill failed to establish selective prosecution.

1. There is no presumption of selective prosecution.

Hill contends that he was entitled to a presumption of selective

prosecution.79 But this presumption applies only to claims of vindictive

prosecution—not selective prosecution. Contrary to Hill’s claim, this Court

never discussed any presumption related to selective prosecution claims in

Neal or any other case. See Neal, 150 S.W.3d at 173.

2. Hill never met his “absolute requirement” to show
that the DA’s Office failed to prosecute a similarly
situated defendant.

To establish selective prosecution, Hill had to show that (1) he was

singled out for prosecution while a similarly situated violator was not

prosecuted; and (2) the decision to prosecute was based on an arbitrary

classification such as race, religion, or the exercise of constitutional rights.

Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980) (citation

79
Petitioner’s Brief at 50.

25
omitted); see also Jarrett v. United States, 822 F.2d 1438, 1443 (7th Cir.

1987).

The United States Supreme Court has held explicitly that the burden

to identify a similarly situated but unprosecuted person is an “absolute

requirement” to support even a request for discovery based on selective

prosecution. Armstrong, 517 U.S. at 467. The Court gave teeth to this

standard in Armstrong by holding statistical analysis suggestive of racial

distinctions in prosecution insufficient to warrant relief. Id. at 470. Despite

this compelling evidence of racially motivated prosecutions, the Court held

8-1 that the defendants needed more and better evidence: proof of similarly

situated persons that the government declined to prosecute. Id.

Hill never identified any similarly situated individual. Hill’s failure to

meet this “absolute requirement” meant he was not entitled to an

evidentiary hearing on his claim of selective prosecution. See id. Hill failed to

present any evidence that he was singled out for prosecution under

circumstances that do not normally result in prosecution, or that he was

treated differently than any other defendant in his situation.

In support of his argument concerning establishment of a “colorable

basis” for his selective prosecution claim, Hill cites a series of federal circuit

26
cases. He contends these cases all stand for the proposition that a criminal

defendant is entitled to an evidentiary hearing based on a “colorable” claim

of selective prosecution. See United States v. Penagaricano-Soler, 911 F.2d 833

(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), cert. denied, 444 U.S. 941

(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), cert. denied, 513 U.S. 1061 (1994); United States v. P.H.E.,

Inc., 965 F.2d 848 (10th Cir. 1992); Jones v. White, 992 F.2d 1548 (11th Cir.

1993), cert. denied, 481 U.S. 1055 (1993); Attorney Gen. of United States v. Irish

People, Inc., 684 F.2d 928 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172 (1983).

First, of course, Hill failed to present evidence establishing a

“colorable basis” for his selective prosecution claim because he never

identified any similarly situated defendant whom the government declined to

prosecute. Thus, under any standard, Hill failed to meet this “absolute

requirement” for his selective prosecution claim.

Second, every one of these cases pre-dates the Supreme Court’s

decision in Armstrong explicitly imposing identification of a similarly situated

but unprosecuted person as an “absolute requirement” to obtain discovery

27
of a selective prosecution claim. Indeed, Hill even cites the decision by the

court of appeals in Armstrong itself—but fails to include the complete

citation reflecting the Supreme Court’s reversal of that decision based on the

defendant’s failure—just like Hill’s failure—to meet this “absolute

requirement.” See Petitioner’s Brief at 75 (citing United States v. Armstrong,

48 F.3d 1508 (9th Cir. 1995) (en banc), reversed, 517 U.S. 456 (1996)).

The evidentiary requirement applies to any request to explore

prosecutorial motive—even discovery. In Armstrong, the Court held that

“the showing necessary to obtain discovery should itself be a significant

barrier to the litigation of insubstantial claims.” Id. at 463-64. Thus,

“Armstrong effectively required proof of an equal protection violation before

a court could allow the defendant to engage in discovery of the prosecution’s

motive.” Peter J. Henning, Prosecutorial Misconduct and Constitutional

Remedies, 77 WASH. U. L.Q. 713, 750 (1999). “Without explicitly saying so,

the Court made protection of prosecutor motives paramount to the

defendant’s ability to assert a selective prosecution claim.” Id. at 751.

Armstrong imposes an absolute requirement for evidence of similarly

situated defendants who were not prosecuted. Hill’s lawyers admitted that

they lacked such evidence and hoped to elicit it during the evidentiary

28
hearing. The trial court nevertheless ordered the hearing.

The Fifth Circuit took a district court to task for compelling

government production of information concerning its charging decisions

where counsel admitted the information was necessary to make out a prima

facie case of selective prosecution, deeming this a “misapplication of

Armstrong . . . .” In re United States, 397 F.3d 274, 284-85 (5th Cir. 2005).

According to the Fifth Circuit:

Before a criminal defendant is entitled to any
discovery on a claim of selective prosecution, he
must make out a prima facie case. The prima facie
case of selective prosecution requires the criminal
defendant to bring forward some evidence that
similarly situated individuals of a different race
could have been prosecuted, but were not. More
specifically, a defendant must first present evidence
of both discriminatory effect and discriminatory
intent.

Id. at 284 (emphasis added) (internal citations omitted). This case is the

same. Hill admitted through counsel his need for the evidentiary hearing to

obtain facts supporting his claim. Just as in In re United States, the trial court

misapplied Armstrong in ordering the hearing.

Armstrong was a selective prosecution case. But its evidentiary

requirement applies to all of Hill’s constitutional claims. The same

separation-of-powers concerns underlying Armstrong apply to judicial

29
involvement on any due process or equal protection theory. More important,

pragmatic concerns mandate an evidentiary standard. If Texas criminal

defendants could force district attorneys to the stand in advance of trial

based solely on unsworn allegations and unauthenticated documents—no

matter how compelling the accusations—our criminal justice system would

grind swiftly to a halt. As a result, the Supreme Court astutely requires

evidence of a prima facie case of some violation to gain an evidentiary

hearing.

Hill’s inability to provide evidence of the DA’s failure to prosecute a

similarly situated defendant—an absolute requirement—doomed his

selective prosecution claim. The trial court abused its discretion in granting

an evidentiary hearing based on this claim.

B. Hill failed to establish vindictive prosecution.

1. Hill relies on a presumption that applies only to trial
proceedings.

Vindictive prosecution cases may be established based either on (1)

presentation of circumstances sufficient to raise a rebuttable presumption of

prosecutorial vindictiveness, or (2) proof of actual vindictiveness, which

means direct evidence that the prosecutor’s charging decision was an

unjustifiable penalty resulting solely from the defendant's exercise of a

30
protected legal right. Neal, 150 S.W.3d at 173 (citations omitted). But the

presumption of vindictiveness does not apply to pretrial proceedings.

In Goodwin, the Supreme Court held that where misconduct occurred

before trial, “the timing of the prosecutor’s action in this case suggests that a

presumption of vindictiveness is not warranted.” Goodwin, 457 U.S. at 381.

The Court noted “good reason to be cautious before adopting an inflexible

presumption of prosecutorial vindictiveness in a pretrial setting.” Id.

This Court has interpreted Goodwin as meaning that “the

presumption of vindictiveness prong rarely—if ever—applie[s] outside the

context of prior conviction, successful appeal, and post-appeal enhanced

charging decision . . . .” Neal, 150 S.W.3d at 173 n.12 (citing Goodwin, 457

U.S. at 381). Other courts similarly hold that Goodwin precludes application

of the presumption to pretrial proceedings. See WAYNE R. LAFAVE, JEROLD

H. ISREAL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 13.7(c)

n.43 (3d ed. 2010) (citing First, Sixth, Seventh, Eighth, and Ninth Circuit

cases for this proposition); see also, e.g., United States v. Johnson, 91 F.3d 695,

698 (5th Cir. 1996); United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th

Cir. 2000). This, of course, does not preclude a showing of actual

vindictiveness; it just means that proof is required. Goodwin, 457 U.S. at 384.

31
 2. Hill provided no evidence suggesting that he was
vindictively prosecuted.

Because the presumption of vindictiveness does not apply, Hill bore

the burden to establish actual vindictiveness by introducing direct evidence

that the charging decision was a “direct and unjustifiable penalty” resulting

solely from the exercise of a protected legal right. Neal, 150 S.W.3d at 173

(citation omitted). In short, he had to prove that he would not have been

prosecuted except for the animus. United States v. Koh, 199 F.3d 632, 640

(2d Cir. 1999) (citation omitted). The State could “stand mute unless and

until [Mr. Hill carried] his burden of proof . . . .” Neal, 150 S.W.3d at 175

(citation omitted).

Hill provided no evidence related to alleged improprieties in the

indictments, his claim about the “unprecedented” nature of the charges, or

his belief that the indictments were not thoroughly investigated. He claimed

denial of a right to address the grand jury—but based that claim solely on a

2007 newspaper article that described the DA’s office having such a policy.

Hill presented no evidence that such a policy actually existed at the time of

his indictment; indeed, Martin denied the existence of such a policy and

32
Moore deemed it “laughable.”80

Hill alleged that ADA Deborah Smith communicated her “concerns”

about the charges. Again, though, he provided no evidence to support this

claim. And Martin’s affidavit to the trial court detailed her lengthy

investigation of the Hill case, which spanned several months and included

receiving documents from various sources and talking to the bank’s legal

counsel.

Hill alleged that Watkins prosecuted him in retaliation for engaging in

civil litigation against both his father and Blue. But he offered no evidence

that the charging decision was a penalty for his actions in the civil litigation.

In fact, his attorneys admitted that they needed the evidentiary hearing to

“elicit” evidence that Hill was “vindictively and selectively prosecuted.”81

Independently, Hill offered no evidence that he would not have been

prosecuted except for the purported animus. This deficiency arises from

Hill’s failure to establish that the DA’s Office normally declines to prosecute

these types of cases. In short, Hill thought he had only to raise a presumption

of vindictiveness when in actuality he had to provide direct evidence of it.

80
4 R.R. at 51, 53.
81
2 R.R. at 16 (emphasis added).

33
 Hill details telephone calls and social meetings between Blue and

Watkins. But no evidence suggests that Blue and Watkins discussed Hill on

any of these occasions. As he did in the trial court, Hill relies on innuendo

and speculation. For example, he notes Blue’s testimony concerning a

telephone call from Watkins at 10:54 a.m. on January 21, 2011, in which

informed him that she no longer had any interest in the Hill prosecution. Hill

then references a subsequent telephone conversation—but cites no evidence

that this conversation had anything to do with him.82 He simply asks this

Court to presume that it did.

The only evidence of communications between Blue and Watkins

establishes that they did not discuss Hill. Blue testified that the Hill

indictments came up only twice, never resulting in any substantive

conversation.83 A federal judge reviewed the text messages between Blue and

Watkins without finding any mention of Hill. In sum, Hill simply provides no

evidence sufficient to establish even a colorable basis for his claim of

vindictive prosecution.

82
Brief of Appellee at 12.
83
CR-180-I at 198-201; CR-181-I at 197-200; CR-182-I at 196-99; CR-183-1 at 194-96; CR-
191-I at 193-96.

34
 C. Hill never really even explains his claims.

At two points in his brief, Hill delineates the facts he claims to have

established by the “evidence” attached to his motion.84 But he provides

insufficient—indeed, meaningless—record citations for these purported

facts. Hill provides a bullet-point listing of 24 purported facts. But rather

than support each fact with a record cite, he provides only one record cite for

this three-page list—and that cite is to the entire 416 pages of attachments to

his motion.

Hill leaves the State and this Court with no means of verifying a single

one of his factual allegations other than by perusing 416 pages of documents

and guessing about where Hill purports to find support for each of his

allegations.

Hills’ failure to support his factual allegations with proper record

citations is particularly troubling because at least some of the allegations

appear to lack record support. For example, Hill’s laundry list repeats the

allegations made elsewhere in his brief that Smith “apologized” for the

prosecutions.85 But the record citations provided by Hill do not support this

purported fact. The reporter’s record citation consists only of closing

84
Petitioner’s Brief at 27-30, 64-67.
85
Petitioner’s Brief at 36.

35
argument by Hill’s counsel—not evidence.86 The other citation is to the trial

court’s findings of fact, not any evidence to support them.87

Hill refers to Martin’s decision not to interview the loan officer or

mortgage broker from the loan. But he never explains the significance of this

fact. Martin believed that written documents and Hill’s deposition testimony

established the fraud. The bank’s lawyer and the trustee agreed that Hill

committed fraud.88 Hill never explains why these additional steps were

necessary.

In his statement of facts, Hill also cites what he contends was damning

testimony by Martin.89 But he conflates testimony about two different

strategies for prosecution. Martin testified that she always intended to

present the Hill case to the grand jury,90 considering it “one of the easier

cases [she] had” because the fraud was documented in writing and admitted

under oath.91

In her handwritten notes, Martin expressed concerns related to

pursuing the case with the trust as the complainant. The trustee was pushing

86
4 R.R. at 216-218.
87
1st Supp. CR-180 at 96.
88
4 R.R. at 138, 156.
89
Petitioner’s Brief at 37.
90
4 R.R. at 148-49.
91
4 R.R. at 150-51.

36
for indictments. Martin informed him she did not believe the case could be

successful with the trust as the complainant—it needed to be the bank. This

was the context in which Martin expressed her concerns: “As far as the trust

being the victim is what I was telling him, not that mortgage fraud hadn’t

happened.”92

Martin testified that the bank told her it would not have filed any

complaint to start the prosecution because Hill eventually repaid the loan.93

But the bank—after learning of the fraud—agreed to cooperate in the

prosecution.94 And the bank’s counsel agreed that Hill had committed

fraud.95

Hill conflates these separate issues to attack Martin’s credibility. He

contends that Martin’s notes expressing doubt about pursuing the case with

the trust as the complainant somehow undermine her testimony about the

case with the bank as the complainant. But that doubt existed solely as to the

efficacy of pursuing the case with the trust as the complainant.

Hill also suggests that Martin changed her handwritten notes to rebut

his motion. But Martin testified she didn’t even know when Hill filed his

92
4 R.R. at 187; 183-86.
93
4 R.R. at 184.
94
4 R.R. at 184-85.
95
4 R.R. at 156.

37
motion.96 She augmented her notes to reflect later conversations with

Pickett.97

In addition to his failure to support many of his factual allegations with

proper record citations, Hill also fails to explain how these purported facts

support his constitutional claims for selective and vindictive prosecution.

Hill’s brief contains lengthy arguments about the standards for proving such

claims but almost no substantive discussion of how he met those standards.

Hill does not, for example, ever explain how the facts he purports to have

established satisfied the legal elements of a claim for selective prosecution.

That may be because, as the court of appeals properly concluded, Hill did

not satisfy those elements.

D. Hill cannot rely on the trial court’s findings of fact.

The trial court filed its findings of fact after the Dallas Court of

Appeals acquired jurisdiction over the case. As a result, the trial court’s

findings are a nullity and this Court should consider the case “as though

findings were never filed.” Sonnier v. Sonnier, 331 S.W.3d 211, 215-16 (Tex.

App.—Beaumont 2011, no pet.) (citing Saudi v. Brieven, 176 S.W.3d 108, 114

(Tex. App.—Houston [1st Dist.] 2004, pet. denied)).

96
4 R.R. at 189
97
4 R.R. at 189.

38
 E. Hill cannot rely an adverse inference against the State.

The trial court drew adverse inferences against the State based on the

assertion by Watkins of privilege, and Blue’s assertion of her Fifth

Amendment rights.98 The trial court justified this adverse inference by citing

cases holding that such an inference may be drawn in a civil case.99 But this is

a criminal case. The Texas Rules of Evidence plainly provide that “the claim

of a privilege . . . is not a proper subject of comment by judge or counsel, and

no inference may be drawn therefrom.” TEX. R. EVID. 513(a). The only

exceptions are for civil cases and assertions of spousal privilege. TEX. R.

EVID. 513(c), 504(b)(2). Thus, Hill cannot rely on any adverse inference in

this criminal case.

F. Hill cannot rely on public policy concerns.

Hill contends that public policy concerns support affording criminal

defendants like him an evidentiary hearing under these circumstances. But in

Armstrong, the Supreme Court took such concerns into account before

enunciating the rigorous standard for discovery of prosecutorial motive.

While Hill is no doubt correct about the concerns of criminal

defendants related to probing prosecutorial misconduct, these are hardly the
98
CR-180-S at 98-99; CR-182-S at 98-99; CR-183-S at 97-98; CR-191-S at 83-84.
99
CR-180-S at 104; CR-182-S at 104; CR-183-S at 103; CR-191-S at 89 (citing Webb v.
Maldonado, 331 S.W.3d 879 (Tex. App.—Dallas 2011, pet. denied).

39
only concerns in play. Claims of prosecutorial misconduct also implicate

weighty issues involving separation of powers in our constitutional scheme.

Armstrong, 517 U.S. at 464. Such claims also may unduly delay judicial

proceedings, have a chilling effect on law enforcement, and undermine

public safety “by revealing the Government’s enforcement policy.” See

Wayte v. United States, 470 U.S. 598, 607 (1985).

The decision in Armstrong reflects the Supreme Court’s effort to

balance these competing concerns. While commentators have questioned

whether the Court struck the proper balance, they have expressed no doubt

that this balancing took place: See, e.g., Henning, 77 WASH. U. L.Q. at 751

(“Without explicitly saying so, the Court made protection of prosecutor

motives paramount to the defendant’s ability to assert a selective

prosecution claim.”). In any event, policy concerns do not trump federal

constitutional law as established by the Supreme Court.

G. Conclusion: The evidentiary hearing never should have
occurred.

Hill cites a series of cases for the proposition that Texas courts have

afforded evidentiary hearings to criminal defendants in similar situations.

But these cases say nothing about entitlement to an evidentiary hearing.

They establish only that courts conducted hearings in other cases. They

40
provide no indication of the evidentiary showing made to justify the

hearings, whether anyone opposed the hearings, or whether witnesses

appeared voluntarily.100 These cases have nothing to do with the issue in this

appeal.

Hill was not entitled to an evidentiary hearing until he established a

prima face case of a constitutional violation. The State has no burden to

rebut constitutional claims until the defendant establishes a prima facie case

supporting them. See Quintana, 346 S.W.3d at 686-87 (citation omitted); see

also United States v. Falk, 479 F.2d 616, 623-24 (7th Cir. 1973).

The Eighth Circuit recently held that a defendant contending “the

district court should have granted an evidentiary hearing in support of her

motion to dismiss [based on selective prosecution]” . . . must “present some

evidence” supporting the elements of that claim to get the hearing. United

States v. Peterson, 652 F.3d 979, 982 (8th Cir. 2011) (emphasis added) (citing

United States v. Perry, 152 F.3d 900, 903 (8th Cir. 1998) and Armstrong, 517

U.S. at 468-69). The court affirmed denial of an evidentiary hearing because

100
See State v. Terrazas, 970 S.W.2d 157, 160 (Tex. App.—El Paso 1998), aff’d, 4 S.W.3d
720 (Tex. Crim. App. 1999); State v. Frye, 897 S.W.2d 324, 331 (Tex. Crim. App. 1995);
Landers v. State, 256 S.W.3d 295, 300-01 (Tex. Crim. App. 2008); State ex rel. Young v.
Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207, 209 (Tex. Crim. App.
2007); Eleby v. State, 172 S.W.3d 247, 249 (Tex. App.—Beaumont 2005, pet. ref’d);
Galvin v. State, 988 S.W.2d 291, 296 (Tex. App.—Texarkana 1999 pet. ref’d).

41
the defendant had not shown “credible evidence” of discrimination. Id.

(emphasis added).

The Seventh Circuit has applied this same requirement to a request

for an evidentiary hearing based on a vindictive prosecution claim, holding

the presumption of good faith necessitates an evidentiary standard to obtain

any hearing based on prosecutorial misconduct. United States v. Falcon, 347

F.3d 1000, 1004-05 (7th Cir. 2003). Indeed, the Seventh Circuit interpreted

the law before Armstrong as imposing a more stringent standard for an

evidentiary hearing than for discovery. See United States v. Kerley, 787 F.2d

1147, 1150 (7th Cir. 1986).

Even before Armstrong, federal courts “applied the same standard for

granting discovery orders and evidentiary hearings in this area . . . .” Wayte,

470 U.S. at 621 n.1 (1985) (Marshall, J., dissenting). They continue to apply

the same test to demonstrate entitlement “to discovery or an evidentiary

hearing in a selective prosecution case . . . .” United States v. Blackley, 986

F.Supp. 616, 618 (D.D.C. 1997) (citations omitted); see also, e.g., United

States v. Dean, 119 F. Supp. 2d 81, 82 (D. Conn. 2000) (requiring evidence to

justify evidentiary hearing on vindictive prosecution claim); United States v.

Awan, 459 F.Supp.2d 167, 187 (E.D.N.Y. 2006) (same).

42
 Hill’s failure to make a prima facie showing under any of his asserted

constitutional theories means the trial court erred in affording him an

evidentiary hearing and then dismissing the indictments based on whether

that evidentiary hearing was meaningful.

II. The trial court erred in granting Hill an evidentiary hearing
because he presented no evidence to support his request.

Absent evidence, anyone can allege anything. The phrase some evidence

still includes the word evidence. Hill’s motion seeking an evidentiary hearing

contained no evidence other than the mostly irrelevant transcript excerpts.

He did not support any of his central allegations—about campaign

contributions, text messages, and frequent telephone calls—with evidence.

Hill did not tender any affidavit testimony and made no effort to introduce

any of his attachments into evidence—something that would have been

difficult given obvious hearsay problems.

Hill claims he tendered evidence of a prima facie constitutional

violation before the evidentiary hearing. But everyone involved in discussing

Hill’s entitlement to an evidentiary hearing agreed that was not so. The trial

court explicitly ordered the evidentiary hearing to let Hill try and gather such

43
evidence.101 The State argued Hill had not tendered evidence.102 And even

Hill’s lawyers admitted they needed the hearing to elicit evidence of a

violation.103

Only the transcript excerpts can even arguably be considered

evidence. And they provide scant support for Hill’s claims. Two of the

excerpts contain the previously mentioned testimony by Blue concerning her

previous representation of Watkins and the two 60-second conversations

with him. Another consists of Malouf’s deposition testimony that he

overheard one of those 60-second conversations.104

The remaining two deposition transcripts consist of a single page of

testimony from Alan Strubel that he sent the Malouf firm a congratulatory e-

mail related to the Hill case, and an excerpt from the deposition of another

witness that contains only the cover, appearance, and certification pages but

no actual testimony.105 The evidentiary hearing transcripts consist only of the

Hills’ invocation of their Fifth Amendment rights during the federal fee

trial.106

101
3 R.R. at 24; 2 R.R. at 17, 30-31.
102
2 R.R. at 31.
103
2 R.R. at 13-16.
104
CR-180-I at 438-43; CR-182-I at 434-39; CR-183-I at 434-39; CR-191-I at 433-38.
105
CR-180-I at 449-52; CR-182-I at 445-48; CR-183-I at 445-48; CR-191-I at 444-47.
106
CR-180-I at 461-78; CR-182-I at 457-74; CR-183-I at 457-74; CR-191-I at 456-73.

44
 Taken together, the only possible “evidence” tendered by Hill

established that: (1) Blue and Watkins had two 60-second conversations

concerning the Hill indictments, neither of which involved any substantive

discussion, (2) Alan Strubel congratulated the Malouf firm, and (3) the Hills

invoked their Fifth Amendment rights during the federal attorney’s fee trial.

That is all. The guts of Hill’s motion—the various allegations concerning

Blue and Watkins—lack any evidentiary support and instead were supported

only by allegation and unauthenticated attachments.

Hill now contends that only a proffer of evidence should be required,

citing Franks v. Delaware, 438 U.S. 154 (1978). But, again, these are federal

claims—and in Armstrong, the Supreme Court made clear that the

requirement to obtain an evidentiary hearing or discovery in connection with

prosecutorial misconduct claims is one of evidence—not allegation. The

Court repeatedly used the word evidence to describe this burden:

In order to dispel the presumption that a
prosecutor has not violated equal protection, a
criminal defendant must present clear evidence to
the contrary.

In this case we consider what evidence constitutes
some evidence tending to show the existence of the
discriminatory effect element.

[I]n the absence of clear evidence to the contrary,

45
 courts presume that [prosecutors] have properly
discharged their official duties.

The vast majority of the Courts of Appeals require
the defendant to produce some evidence that
similarly situated defendants of other races could
have been prosecuted, but were not, and this
requirement is consistent with our equal protection
case law.

Armstrong, 517 U.S. at 464, 465, 469 (emphasis added) (citations omitted)

(internal quotation marks omitted). These repeated references to evidence

were not carelessness. They reflect the presumption of good faith accorded

to prosecutors—and the legal requirement that this presumption must be

overcome by evidence.

Armstrong reflects the Supreme Court’s directive for courts to avoid

“slow[ing] law enforcement by subjecting the prosecutor’s motives and

decision-making to outside inquiry” or “undermin[ing] prosecutorial

effectiveness by revealing the Government’s enforcement policy.”

Armstrong, 517 U.S. at 465 (citations omitted). Armstrong also reflects

judicial reluctance to intrude on a “special province” of the Executive

Branch. Id. at 464 (citation omitted). The factors involved in prosecutorial

discretion “are not readily susceptible to the kind of analysis the courts are

competent to undertake.” Wayte, 470 U.S. at 607.

46
 An evidentiary hearing implicates these policy and separation-of-

powers concerns to the same extent as discovery. It subjects a prosecutor’s

“motives and decisionmaking to outside inquiry,” threatens to reveal “the

Government’s enforcement policy” for certain crimes, and entangles the

judiciary in the “special province” of an Executive Branch official to

determine whom to charge with criminal conduct. Armstrong, 517 U.S. at

464-65 (citations omitted). An evidentiary hearing is no less intrusive than

discovery.

Hill cites no case applying the Franks “proffer of evidence” rule in the

context of a claim for selective or vindictive prosecution. The State is

unaware of any such case. That probably is because Armstrong sets the

standard for these claims—and it requires evidence. In any event, Hill

ignores that even under Franks, “[t]o mandate an evidentiary hearing, the

challenger’s attack my be more than conclusory and must be supported by

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

Applying an evidentiary standard also comports with requirements for

other constitutional claims in criminal cases. For example, evidence of a

prima facie case is required “to qualify for an evidentiary hearing” on a

double jeopardy claim. United States v. Zone, 403 F.3d 1101, 1106 (9th Cir.

47
2005). This standard would make particular sense here, where Hill claims he

is entitled to dismissal with prejudice—as he would be for a double jeopardy

violation.

Hill’s proposed standard—relying on allegations rather than

evidence—makes little sense. A clever jailhouse lawyer could fabricate

allegations against any DA sufficient to support a prima facie case of selective

prosecution. Under Hill’s proposed standard, these fabricated allegations

would force the DA to the stand despite their total lack of factual foundation.

To hold that mere allegations support a defendant’s request for an

evidentiary hearing would result in the very dangers the Supreme Court

sought to avoid in Armstrong.

In this case, no one can dispute Hill’s failure to tender any substantive

evidence before the hearing. He simply made accusations in a motion and

attached a stack of documents. The Supreme Court has held that a criminal

defendant alleging federal constitutional violations is not entitled to probe

prosecutorial motive absent evidence making out a prima facie case of a

violation. The trial court erred in allowing Hill an evidentiary hearing absent

such evidence.

Hill contends, for the first time, that his attachments constituted

48
admissible evidence. That, of course, is untrue. For example, media stories

about SMU scholarships and grand jury policies are not party admissions (at

least not of any party other than the newspaper publishing them). Similarly,

none of Blue’s text messages could be party admissions because she was not

a party to the criminal case. And certainly no hearsay exception would apply

to the unauthenticated telephone records. Hill’s ethereal contention that he

tendered admissible evidence is incorrect.

Under governing case law from the Supreme Court, the trial court had

to presume that Watkins acted in good faith until Hill presented clear

evidence to the contrary. Hill had to present such evidence as a condition of

receiving an evidentiary hearing. Because Hill tendered no evidence before

the hearing, the trial court abused its discretion in conducting evidentiary

hearing.

III. The trial court erred in dismissing the cases with prejudice.

A trial court generally lacks authority to dismiss a criminal case

without the prosecutor’s consent. State v. Johnson, 821 S.W.2d 609, 613

(Tex. Crim. App. 1991) (en banc); State v. Plambeck, 182 S.W.3d 365, 269

(Tex. Crim. App. 2005) (en banc). But an exception exists for prosecutorial

49
misconduct involving denial of federal constitutional rights. See State v. Frye,

897 S.W.2d 324, 330 (Tex. Crim. App. 1995) (en banc).

The U.S. Supreme Court has not determined “whether dismissal of

the indictment, or some other sanction, is the proper remedy” for

prosecutorial misconduct involving denial of equal protection or due process.

See Armstrong, 517 U.S. at 461 n.2 (1996). But in the Sixth Amendment

context, the Texas Court of Criminal Appeals has instructed trial courts that

when a constitutional violation occurs they must “identify and then

neutralize the taint by tailoring relief appropriate in the circumstances” to

restore constitutional compliance. Frye, 897 S.W.2d at 330 (quoting United

States v. Morrison, 449 U.S. 361, 365 (1981)).

Under this rule, dismissal is proper only “where the trial court is

unable to identify and neutralize the taint by other means.” Id. (citation

omitted). The basic question, then, is whether re-indictment of Hill could

occur consistent with constitutional principles. See, e.g., Cook v. State, 940

S.W.2d 623, 627-28 (Tex. Crim. App. 1996) (en banc) (remand appropriate

because retrial possible consistent with constitutional principles despite taint

of misconduct). This mirrors the general rule in cases involving trial errors,

where courts hold that reversing the conviction and providing “a new trial

50
free of prejudicial error normally are adequate means of vindicating the

constitutional rights of the accused.” United States v. Hollywood Motor Car

Co., 458 U.S. 263, 268 (1982).

In this case, the purported taint was presentation to the grand jury

based on impure motives. The remedy, then, was dismissal of the

indictments procured by that presentation—not a permanent bar to

prosecution of Mr. Hill’s criminal conduct. Some constitutional violations,

for example the prohibition against double jeopardy, implicate a right not to

be tried at all. But a due process violation caused by prosecutorial

misconduct is not a violation of a right not to be tried. See generally Hollywood

Motor Car, 458 U.S. at 268. Thus dismissal with prejudice—a drastic remedy

“rarely seen in criminal law, even for constitutional violations”—was

inappropriate. Reed v. Farley, 512 U.S. 339, 368 (1994) (Blackmun, J.

dissenting).

In this case, the trial court could have dismissed the purportedly

tainted indictments without prejudice and required the State to procure new

ones. “Dismissal without prejudice is not a toothless sanction: it forces the

Government to obtain a new indictment if it decides to reprosecute, and it

51
exposes the prosecution to dismissal on statute of limitations grounds.”

United States v. Taylor, 487 U.S. 326, 342 (1988).

The trial court relied heavily—both during the hearing and in its

findings—on the decision in Terrazas. But in Terrazas, the court of appeals

held that the trial court abused its discretion in dismissing an indictment

with prejudice when the claimed taint was curable by dismissing without

prejudice and forcing the DA to start anew in deciding whether to seek

indictments. Terrazas, 970 S.W.2d at 160. Similarly, most federal courts

addressing prosecutorial misconduct at the grand jury stage hold that

dismissal without prejudice is an appropriate remedy. See, e.g., United States

v. Slough, 679 F. Supp.2d 55, 61 (D.D.C. 2010); United States v. Lawson, 502

F. Supp. 158, 172 (D. Md. 1980); United States v. Feurtado, 191 F.3d 420,

424-25 (4th Cir. 1999); United States v. Gold, 470 F. Supp. 1336 (N.D. Ill.

1979); United States v. Breslin, 916 F. Supp. 438, 446 (E.D. Pa. 1996); United

States v. Omni Int’l Corp., 634 F. Supp. 1414, 1440 (D. Md. 1986).

The trial court’s order of dismissal with prejudice went too far under

these circumstances. “While defendants are entitled to the remedy of

dismissal for violations of their constitutionally protected rights, they are not

entitled to the reward of permanent immunity respecting their alleged

52
criminal conduct . . . [T]he costs to society are simply too high.” Lawson,

502 F. Supp. at 173.

Had the trial court dismissed the cases without prejudice, Watkins

could have pursued new indictments unshackled by any motive to assist

Blue. Alternatively, he could have appointed a prosecutor pro tem to decide

whether to pursue new indictments. TEX. CODE. CRIM. PROC. ANN. art.

2.07(a) & (b-1) (West 2005). No taint would apply to a prosecutor pro tem,

who is considered a substitute for the district attorney rather than a

subordinate. See, e.g., State v. Newton, 158 S.W.3d 582, 585-86 (Tex. App.—

San Antonio 2005, pet. dism’d); State v. Ford, 158 S.W.3d 574, 576-77 (Tex.

App.—San Antonio 2005, pet. dism’d); Stephens v. State, 978 S.W.2d 728,

731 (Tex App.—Austin 1998, pet. ref’d).

In this case, nothing prevents new indictments consistent with due

process and equal protection guarantees. As a result, “[a] dismissal with

prejudice is simply constitutional overkill.” State v. Terrazas, 962 S.W.2d 38,

45 (Tex. Crim. App. 1998) (en banc) (Keller, J., dissenting). A Texas trial

court abuses its discretion by granting relief beyond that necessary to

neutralize the taint of any constitutional violation. See id. at 42. Because

53
dismissal without prejudice would have neutralized the purported taint, the

trial court abused its discretion in dismissing the indictments with prejudice.

Conclusion

As he has throughout this case and the federal lawsuit, Hill makes wild

claims about what the evidence “overwhelmingly” establishes without ever

actually pointing to evidentiary support for the vast majority of his

allegations—and certainly none of the critical allegations supporting his legal

claims. Recognizing that Hill’s claims are based on speculation, the court of

appeals properly reinstated the indictments. Its decision should be affirmed.

Respectfully submitted,

/s/Charles “Chad” Baruch

Texas Bar No. 01864300
JOHNSTON ◊ TOBEY, P.C.
3308 Oak Grove Avenue
Dallas, Texas 75204
Telephone: (214) 741-6260
Facsimile: (214) 748-9217
Email: chad@jtlaw.com

District Attorney Pro Tem
Dallas County, Texas

Counsel for Appellant

54
 Certificate of Compliance

This brief was prepared using Microsoft Word for Mac. Relying on the
word count function in that software, I certify that this brief contains 10,990
words.

/s/Charles “Chad” Baruch
Attorney for Appellant

Certificate of Service

The undersigned certifies that a true and correct copy of this
instrument was served this 9th day of September, 2015, by email and efiling
upon the following counsel of record for appellee:

George R. Milner III
MILNER FINN PRICE
2828 North Harwood Street, Suite 1950
Dallas, Texas 75201
ItsRainingII@aol.com

Michael Mowla
603 North Cedar Ridge, Suite 100
Duncanville, Texas 75116
michael@mowlalaw.com

L.T. (Butch) Bradt
14015 S.W. Freeway, Suite 4
Sugar Land, Texas 77478
ltbradt@flash.net

/s/Charles “Chad” Baruch

55