Perry, Ex Parte James Richard "Rick"

Volume I of I
SUPPLEMENTAL TRANSCRIPT

Trial Court No. D-l-DC-14-100139
COURTOFSSauPP^
In the 390TH Judicial District Court of Travis County, Texas, StP Q49niA
Honorable BERT RICHARDSON, Judge Presiding.
Abel Acosta, Clerk
Ex Parte: JAMES RICHARD "RICK" PERRY, Applicant

APPEALED to the Court of Appeals transmitted to the
Court of Criminal Appeals for the State of Texas, at Austin, Texas.

Attorney for Applicant
DAVID BOTSFORD
1307 WEST AVENUE
RcCEiVED IN
AUSTIN, TEXAS 78701
COURT OF CRIMINALAPPEALS
Telephone No.; (512) 479-8030
Fax No.: (512) 479-8040 SEP 02 2015
State Bar No.: 02687950

Attorney for State: Abel Acosta,Clerk
MR. MICHAEL MCCRUM, District Attorney Pro Tem
Travis County, Texas
700 N. Mary's St., Suite 1900
San Antonio, Texas 78205
Telephone No.: (210) 225-2285
Fax No.: (210) 225-7045

DELIVERED to the Court of Criminal Appeals for the State of Texas, at Austin, Texas, on the
I day of P ,2.0IS-
VELVA L. PRICE
District Clerk, Travis County,

HOLLI SILER, Deputy
io »;>'•"
"WuenaliW""

Court of Criminal Appeals No.
FILED in the Court of Criminal Appeals for the State of Texas, at Austin, Texas, this
day of , .

ABEL ACOSTA, Clerk

By: , Deputy
Index

CAPTION 1

MOTION TO STAY PROCEEDINGS PENDING APPEAL 2

AMENDED MOTION TO STAY PROCEEDINGS PENDING APPEAL 10

CLERK'S RECORD CERTIFICATE 18
CAPTION

THE STATE OF TEXAS

COUNTY OF TRAVIS

In the 390TH JUDICIAL DISTRICT COURT of Travis County, Texas, the
Honorable BERT RICHARDSON, Judge Presiding, the following proceedings were
held and the following instruments and other papers were filed in this cause, to-wit:

Trial Court Cause Number: D-i-DC-14-100139

THE STATE OF TEXAS IN THE 390TH JUDICIAL DISTRICT
COURT
VS. OF

JAMES RICHARD"RICK" PERRY TRAVIS COUNTY, TEXAS

e=».
NO. D-l-DC-14-100139

STATE OF TEXAS § ^ THE DISTRICT COURT
§
S 390th DISTRICT COURT
vs ®

JAMES RICHARD "RICK" PERRY § TRAVIS COUNTY, TEXAS

MOTION TO STAY PROCEEDINGS PFNniNG APPEAL
TO THE HONORABLE JUDGE RICHARDSON:

Now COMES THE STATE OF TEXAS, by and through Michael McCrum, District Attorney
Pro Tern, Travis County, Texas, and pursuant to TEX. CODE CRM. PROC. article 44.01(e) and
TEX. R.App. P 25.2(g) presents this Motion.

I.
OVERVIEW

The Grand Jury indicted Defendant ontwo counts;
(1) Abuse ofOfficial Capacity Statute, orTBf. Penal Code §39.02(a)(2), wUch makes it m
offense for a"public servant," "with intent to harm... another," to intentionally or
knowingly "misuse government property... that has come into the pubic servant s
custody or possession by virtue ofthe public servant's office or employment;
(2) Coercion ofPublic Servant, or Tex. PenalCode §36.03(a)(1) which makes it moffense
for aperson, "by means ofcoercion," to "influence" or attempt to' influence a public
servant" to a specific end.

To date, the prosecution ofboth ofthese counts has proceeded under one indictment with one
cause number and forresolution byonetrial.
On July 24,2014 the Third Court ofAppeal issued an opinion effectively dividing the
^ Filed in The District Court
case intotwo separate actions. Travis County, Texas

AU6 31 M15
At ^ M-
V(}lva L Price, District^ierk

C3
rv>
(1) The Court ofAppeals affirmed this Court's rulings that Defendant's "as-apphed"
challenges may not be considered in pretrial habeas; and
(2) The appellate court decided that the statute the Texas Legislature passed to combat public
corruption isoverbroad and unenforceable.
Although the Third Court ofAppeals rejected Defendant's legal arguments to dismiss
Count I, he is seeking apetition for discretionary review with the Court ofCriminal Appeals.
And because the Third Court ofAppeals invalidated apublic law that protects all citizens from
public corruption, the State Prosecutor's Office is seeking discretionary review regarding the
statute at issue in Count Two.

It is unknown whether the Court ofCriminal Appeals will grant review on either or both
groimds.

11.
THE STATE'S POSITION

The State's interests are threefold: 1) to resolve this case in the most fair, expeditious and
prompt manner possible; 2) to avoid duplicitous legal proceedings, thereby saving time and
expense to the taxpayers ofTravis County and the State ofTexas; and 3) to defend astatute that
was passed by the Texas Legislature specifically to protect the public from abuse ofpower by
public officials. The issue before this Court is whether to address pending motions to dismiss the
remaining count and/or proceed to trial on the remaining count The State is concerned, however,
that proceeding forward in the district court could give rise to an umiecessary, significant
expenditure ofresources, given the fact that the Court ofCriminal Appeals has pending before it
live pleadings affecting each ofthe counts ofthe indictment.
As this Court is aware, the opinion ofthe Third Court ofAppeals in the instant case
entitles both parties to seek fiirther review in the Court ofCriminal Appeals for afinal
determination ofdisputed legal issues as to each count ofthe indictment. From the State's

G9
C3
r.n
perspective, the court ofappeals' decision affects Count II ofthe indictment, triggering the right
ofthe State to appeal pursuant to Tex. Code Crim. Proc. §44.01(a) and 44.01(h). 5e«. e.g.. State
V. Richardson, 383 S.W.3d 544, 545 (Tex. Crim. App. 2012); State ex rel. Lykos v. Fine, 330
S.W.3d 904 (Tex. Crim. App. 2011). Pursuant to Tex. Code Crim. Proc. §44.01(e), the State
may request astay ofall district court proceedings so that afinal determination by the Court of
Criminal Appeals may be made on the constitutionahty ofthe public corruption statute in
Count II.

The State is mindful that it could seek to proceed to trial on Count Iand await the Court
ofCriminal Appeals' decision on Count II. But because the Court ofCriminal Appeals has
before it requested relieffiled by both parties relative to both ofthe indictment counts, it does not
appear prudent for the district court to make decisions relative to either ofthese counts and/or
proceed to trial, where the Court ofCriminal Appeals may make such moot or otherwise
umiecessary. The State believes the more prudent path is to await direction firom the Court of
Criminal Appeals on the pending petitions for discretionary review.

III.
LEGAL SUPPORT

A Arrirlt.44 ni of the T^xas Codeof Criminal Procedure

The State is entitled to astay ofall trial court proceedings pending resolution ofthe appeals
concerning the S"* Court's dismissal ofportions ofDefendant's indictment.' Through its petition
for discretionary review, the State is appealing the 3"> Court's dismissal ofaportion ofthe

' See Tex. Code Crim. Proc. arts. 44.01(a) and (e).

as
cs
indictment against Defendant. As this is plainly considered an appeal, the State is entitled to a
stay ofall lower proceedings "pending the disposition ofthe appeal."
Under Article 44.01, the State is only allowed to appeal certain orders and judgments. One of
the limited instances in which the State is allowed an appeal is when an order orjudgment
"dismisses an indictment, information, or complaint or any portion ofan indictment, information,
or complaint."'

Here, the 3"" Court's July 24,2015 Order dismissed aportion ofthe indictment returned
against Defendant, namely Count nofthe Indictment,by finding oneofthe statutesunder which
Defendant was mdicted was unconstitutional. Thus, the Stale's petition for discrettonary review
is apermitted appeal ofthe3rd Court's orderunder Art. 44.01(a) ofthe Texas CodeofCriminal
Procedure.

once the State appeals an orierorjudgmentunder Article 44.01(a), it is "enttUedto astay in
the proceedings pendingthe disposition of[the] appeal" under Article44.01(e). Upon request by
tfie State, we respectfully submit the district court has no discretion.

Pursuant to that Article, and in the interest ofjustice, the State requests this Stay.
R Rnlft 75.2 of file Texas "f Appellate Procedure

In fact, astay in the trial proceedings in this Court should be mUomatic upon the
Defendant's TOrd Court appeal and petition for discretionary review to the Court ofCrimtaal
Appeals (andnow the State's PDR), due to Rule 25.2 oftheTexas RulesofAppellateProcedure.
=&.Tex.CodeCrim.Proc.a;r44.0Ue) ('The stateisentitled toastayintheproceedtagspe^iingthe
disposUion ofanappeal under Subsection(a) or (b) ofthis article ).
^See Tex. Code Crim. Proc. arts. 44.01(a)

CTJ
zn
SubsecHon (a)(1) ofthat rule recognizes the State's right to appeal acourt's order under §
44.01 the Code ofCriminal Procedure* When such an appeal is undertakenbythe State, rule
25.2(g) mandates that "all fcrther proceedings in the trial court.,. wiU be suspendeduntil the
trial court receives the appellate-court mandate."

As this Court has yet to receive the Court ofCriminal Appeal's mandate related to the Third
Court's order, all proceedings in this Court are suspended until that mandate is passed-down.

Thus, this motion only asks this Court to recognize astay that is automatic under the Rules
of Appellate Procedure.

IV.
RELIEF SOUGHT

Pursuant to the above, the State requests astay ofall trial court proceedings mthis Court
pendmgresolntion ofthe current appeals ofthe Third Court's July 25,2015 orderintheCourtof
Criminal Appeals,
Respectfully Submitted:

Michael McCrum
State Bar No. 13493200
District Attorney Pro Tem
Travis County, Texas
700 N. St. Mary's St., Suite1900
San Antonio, TX 78205
Telephone; (210) 225-2285
Facsimile; (210)225-7045
michael@mccrumlegal.com

Court'sJuly24,2015order.
®Tex. R. App. P. 25.2(g) (emphasis added).
(S

cr:
rYtA^
DavIid M.Gonzalez
State Bar No. 24012711
Assistant District Attorney Pro Tern
Travis County, Texas
206 East9'*' Street, Suite 1511
Austin, Texas 78701
Telephone: (512) 381-9955
Facsimile; (512)485-3121
david@sg-llp.com

ATTORNEYS FOR
THE STATE OF TEXAS

cs
TFRTIFICA'TF. of service

This is to certify that on August 2015, atrue and correct copy of this the State's
Motion to Stay Proceedings Pending Appeal has been emailed to.

David L. Botsford
Botsford & Roark
1307 West Ave.
Austin, TX 78701
(512) 479-8040 Facsimile
dbotsford@aol.com

Thomas R. Phillips
Baker Botts,L.L.P.
98 SanJacinto Blvd., Ste. 1500
Austin, TX 78701
(512) 322-8363 Facsimile
Tom.phillipgf^^alferhotts.com

Anthony G, Buzbee
The Buzbee Law Firm
600 Travis St., Ste. 7300
Houston, TX 77002
(713) 223-5909 Facsimile
tbuzbee@txattomeys.com

David M. Gonzalez

C3
CO
NO. D-l-DC-14-100139

STATE OFTEXAS § IN THE DISTRICT COURT
§
§ 390th DISTRICT COURT
§
JAMES RICHARD PERRY § TRAVIS COUNTY, TEXAS

ORDER

On this day came on to be considered the State's Motion to Stay Proceedings Pending
Appeal.

IT IS HEREBY ORDERED that all trial court proceedings shall be stayed until all legal
matters areresolved in theCourt of Criminal Appeals.

2015.
SIGNED this day of.

Judge Richardson

C3
CO
NO. D-l-DC-14-100139

STATE OF TEXAS § IN THE DISTRICT COURT
§
vs § 390th DISTRICT COURT
§
JAMES RICHARD "RICK" PERRY § TRAVIS COUNTY, TEXAS

AMENDED MOTION TO STAY PROCEEDINGS PENDING APPEAL

TO THE HONORABLE JUDGE RICHARDSON:

Now COMES THE STATE OF TEXAS, by and through Michael McCrum, District Attorney

Pro Tem, Travis County, Texas, and pursuant to Tex. Code Crim. Proc. article 44.01(e) and

Tex. R. App. P 25.2(g) presents this Motion,

I.
OVERVIEW

The Grand Jury indicted Defendant on two counts:

(1) Abuse of Official Capacity Statute, orTex.Penal Code § 39.02(a)(2), which makes it an
offense fora "public servant," "with intent toharm ... another," to intentionally or
knowingly "misuse government property... thathascome into the pubic servant's
custody or possession by virtue of the public servant's office or employment;
(2) Coercion ofPublic Servant, orTex. Penal Code § 36.03(a)(1) which makes it anoffense
fora person, "bymeans of coercion," to "influence" or attempt to "influence" a "public
servant" to a specific end.

Todate, theprosecution ofboth ofthese counts has proceeded under one indictment with one
cause number and for resolution by one trial.

OnJuly 24,2015 the Third Court ofAppeal issued anopinion effectively dividing the

case into two separate actions:
Filed in Tlie District Court
of Travis County, Texas

SEP0120I5
A' M.
V^^iva L. Price, District Clerk

cri
(1) The Court ofAppeals affirmed this Court's rulings that Defendant's "as-applied"
challenges may not be considered in pretrial habeas; and
(2) The appellate court decided that the statute the Texas Legislature passed to combat public
corruption is overbroad and unenforceable.
Although the Third Court ofAppeals rejected Defendant's legal arguments todismiss
Count I, heisseeking a petition for discretionary review with the Court ofCriminal Appeals.
And because the Third Court ofAppeals invalidated a public law that protects all citizens from
public corruption, the State Prosecutor's Office is seeking discretionary review regarding the
statute at issue in Count Two.

It is unknown whether the Court of Criminal Appeals willgrantreview on either or both

groimds.

II.
THE STATE'S POSITION

The State's interests are threefold: 1) to resolve this case in the most fair, expeditious and
prompt manner possible; 2) to avoid duplicitous legal proceedings, thereby saving time and
expense to the taxpayers ofTravis County and the State ofTexas; and 3) to defend astatute that
was passed by the Texas Legislature specifically to protect the public from abuse ofpower by
public officials. The issue before this Court is whether to address pending motions to dismiss the
remaining count and/or proceed to trial on the remaining count. The State is concerned, however,
that proceeding forward in the district court could give rise to an unnecessary, sigmficant
expenditure ofresources, given the fact that the Court ofCriminal Appeals has pending before it
live pleadings affecting each ofthe counts ofthe indictment.
As this Court is aware, the opinion ofthe Third Court ofAppeals inthe instant case
entitles both parties to seek further review in the Court ofCriminal Appeals for afinal
determination ofdisputed legal issues as to each count ofthe indictment. From the State's

)—>•
perspective, the court ofappeals' decision affects Count II ofthe indictment, triggering the right
of the State to appeal pursuant to Tex. Code Crim. Proc. § 44.01(a) and44.01(h). See, e.g.. State

V. Richardson, 383 S.W.3d544,545 (Tex. Crim. App. 2012); State ex rel. Lykos v. Fine, 330

S.W.3d 904(Tex. Crim. App. 2011). Pursuant to Tex. Code Crim. Proc. § 44.01(e), the State

may request a stay ofall district court proceedings so that a final determination bythe Court of
Criminal Appeals may be made ontheconstitutionality of the public corruption statute in

Count II.

The State is mindfulthat it couldseek to proceed to trial on Count I and await the Court

of Criminal Appeals' decision onCoimt II. But because the Court ofCriminal Appeals has
before it requested relief filed byboth parties relative toboth ofthe indictment counts, it does not
appear prudent for the district court to make decisions relative to either ofthese counts and/or
proceed to trial, where the Court ofCriminal Appeals may make such moot orothrawise
unnecessary. The State believes the more prudent path isto await direction firom the Court of
Criminal Appeals on the pending petitions fordiscretionary review.

ni.
LEGAL SUPPORT

A. Article 44.01 of the Texas Code of Criminal Procedure

The State isentitled toa stay ofall trial court proceedings pending resolution ofthe appeals
concerning the 3"* Court's dismissal ofportions ofDefendant's indictment.' Through its petition
for discretionary review, the State is appealing the 3"® Court's dismissal ofaportion ofthe

See Tex. Code Crim. Proc. arts. 44.01(a) and (e).
indictment against Defendant. As this isplainly considered an appeal, the State isentitled to a
stay ofall lower proceedings "pending the disposition ofthe appeal."^

Under Article 44.01, the State isonly allowed to appeal certain orders and judgments. One of
the limited instances in which the State is allowed an appeal is when an orderor judgment

"dismisses anindictment, information, orcomplaint orany portion ofanindictment, information,
orcomplaint."'

Here, the 3*^ Court's July 24,2015 Order dismissed aportion ofthe indictment returned
against Defendant, namely Count II ofthe Indictment, by finding one ofthe statutes under which
Defendant was indicted was unconstitutional. Thus, theState's petition for discretionary review

is apermitted appeal ofthe 3rd Court's order under Art. 44.01(a) ofthe Texas Code of Criminal
Procedure.

Once the State appeals an order or judgment under Article 44.01(a), itis "entitled to astay in
the proceedings pending the disposition of[the] appeal" under Article 44.01(e). Upon request by
the State, we respectfully submit the district court has no discretion.

Pursuant to that Article, and inthe interest ofjustice, the State requests this Stay.

R. Rule 25.2 of the Texas Rules of Apnellate Procedure

In fact, astay in the trial proceedings in this Court should be automatic upon the
Defendant's Third Court appeal and petition for discretionary review in the Court ofCrimmal
Appeals (and now the State's PDR), due to Rule 25.2 ofthe Texas Rules ofAppellate Procedure.

2See Tex. Code Crim. Free. art. 44.01(e) ("The state is entitled to astay in the proceedings pending the
disposition ofan appeal under Subsection (a) or (b) ofthis article").
' See Tex. Code Ciim. Proc. arts. 44.01(a)

r
Subsection (a)(1) ofthat rule recognizes the State's right to appeal acourt's order under §
44.01 the Code ofCriminal Procedure." When such an appeal is undertaken by the State, rule
25.2(g) mandates that "all ftulher proceedings in the trial court... will be suspendeduntil the
trial court receives the appellate-court mandate."^

As this Court has yet to receive the Court ofCriminal Appeal's mandate related to the Third
Court's order, all proceedings in this Court are suspended xintil that mandate is passed-down.

Thus, this motion only asks this Court to recognize astay that is automatic under the Rules
of Appellate Procedure.

IV.
RELIEF SOUGHT

Pursuant to the above, the State requests astay ofall trial court proceedings in this Court
paiding resolution ofthe cunwit appeals oftheThird Comt's My25,2015 order in the Court of
Criminal Appeals.
Respectfully Submitted;

Michael McCRUM
State Bar No. 13493200
District Attorney Pro Tem
Travis Coimty, Texas
700N. St. Mary's St., Suite 1900
San Antonio, TX 78205
Telephone: (210)225-2285
Facsimile: (210) 225-7045
michael@mccrumlegal.com

^Tex RApp. P. 25.2(a)(1). As discussed above, Tex. Code Grim. Proc. §44.01(a) allows State to
aJpSl a orderJiJ.heffectively dismisses aportion ofthe indictment-as is the casemtheTbrd
Court's July 24,2015 order.
®Tex. R. App. P. 25.2(g) (emphasis added).
cs
[—ft
David M. Gonzalez
State Bar No. 24012711
Assistant District Attorney Pro Tern
Travis County, Texas
206 East9*^ Street, Suite 1511
Austin, Texas 78701
Telephone: (512) 381-9955
Facsimile; (512)485-3121
david@sg-llp.com

ATTORNEYSFOR
THE STATE OF TEXAS

' rv
rKRTlFlCATF. OF SERVICE

This is to certify that on September 1, 2015 atroe and comct copy of this the State's
Amended Motion to Stay Proceedings Pending Appeal has been emailed to:

David L. Botsford
Botsford & Roark
1307 West Ave.
Austin, TX 78701
(512) 479-8040 Facsimile
dbotsford@aol.com

Thomas R. Phillips
Baker Botts, L.L.P.
98 San Jacinto Blvd., Ste. 1500
Austin, TX 78701
(512) 322-8363 Facsimile
Tom.phillips(5^bakerbotts.com

Anthony G. Buzbee
The Buzbee Law Firm
600 Travis St., Ste. 7300
Houston, TX 77002
(713) 223-5909 Facsimile
tbuzbee@txattomeys.com

David M. Gonzalez
NO. D-l-DC-14-100139

STATE OF TEXAS § IN THE DISTRICT COURT
§
§ 390th DISTRICT COURT
§
JAMES RICHARD PERRY § TRAVIS COUNTY, TEXAS

ORDER

On this day came on to be considered the State's Amended Motion to Stay Proceedmgs
Pending Appeal.

rr IS HEREBY ORDERED that all trial court proceedings shall be stayed until all legal
matters are resolved in theCourt ofCriminal Appeals.

SIGNED this day of 2015.

Judge Richardson
CLERK'S RECORD CERTIFICATE

THE STATE OF TEXAS
COUNTY OF TRAVIS

I, VELVA L. PRICE, Clerk of the District Courts of Travis County,Texas,
do hereby certify that the documents contained in this record to which this
certifications is attached are al of the documents specified by Texas Rule of
Appellate Procedure 34.5 (a) and all other documents timely requested by a party to
this proceeding under Texas Rule of Appellate Procedure 34.5 (b).

GIVEN UNDER MY HAND AND SEAL of said Court at Office in Austin,
Travis County, Texas, this the ^ day of , Qoi^ .

VELVA L. PRICE
District Clerk, Travis County, Texas

Deputy