                                                             WR-83,370-02
                                                             WR-83,370-01
                                               COURT OF CRIMINAL APPEALS
                                                               AUSTIN, TEXAS
                                               Transmitted 6/2/2015 1:09:33 PM
                                                 Accepted 6/2/2015 1:25:26 PM
                                                                ABEL ACOSTA
               No.                                                      CLERK

                                                  RECEIVED
                                           COURT OF CRIMINAL APPEALS
  IN THE COURT OF CRIMINAL APPEALS                6/2/2015
                                             ABEL ACOSTA, CLERK




        In Re Ari Michael Burns,
                Relator
          PETITION FOR WRITS
     OF MANDAMUS AND PROHIBITION

In the Matter of Enforcement of the Michael Morton Act
        and the Prohibition Against Imposition of
                 Conditions of Discovery
 under Article 39.14 of the Code of Criminal Procedure


KEITH S. HAMPTON                  MCKINLEY MELANCON
Attorney at Law                   Attorney at Law
State Bar No. 08873230            State Bar No. 24084323
1103 Nueces Street                1307 Nueces Street
Austin, Texas 78701               Austin, Texas 78701
(512) 476-8484 (o)                (512) 954-0726 (o)
(512) 477-3580 (f)                (512) 382-1482 (f)
(512) 762-6170 (c)                (832) 866-0506 (c)
keithshampton@gmail.com           melancon@gmail.com


               ATTORNEYS FOR RELATORS
                       NAMES OF ALL PARTIES
      Pursuant to the provisions of Rule 52.2, Texas Rules of Appellate Procedure,

a complete list of the names of all parties to this original appellate action seeking

extraordinary relief and counsel are as follows:




Parties:                  Ari Michael Burns, Relator and Real Party in Interest


                          Rosemary Lehmberg, Travis County
                          District Attorney, Respondent




Counsel:                  Keith S. Hampton
                          1103 Nueces Street
                          Austin, Texas 78701

                          McKinley Melancon
                          Attorney at Law
                          1307 Nueces Street
                          Austin, Texas 78701

                          Rosemary Lehmberg
                          Scott Taliaferro
                          Travis County District Attorney’s Office
                          P.O. Box 1748
                          Austin, Texas 78767
                                       TABLE OF CONTENTS
Names of All Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

List of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

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

Restraint.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Issue Presented: Respondent should be compelled to provide discovery “as soon
as practicable,” as required by the Texas discovery statute, and should be prohibited
from withholding discovery until indictment... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Certification of Factual Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Service and Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Article 39.14 of the Code of Criminal Procedure

         Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct

         Opinion 646 of the Professional Ethics Committee for the State Bar

         Reporter’s Record

         Affidavit
                                   LIST OF AUTHORITIES
CASES                                                                                                       PAGE

De Leon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App. 2004). . . . . . . . . . . . . . . . . . . . 4

Dodson v. State, 988 S.W.2d 833 (Tex. App. – San Antonio 1999, no pet.). . . . . . 2

Ex parte Chi, 256 S.W.3d 702 (Tex.Crim.App. 2008). . . . . . . . . . . . . . . . . . . . . . . 5

Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App. 1982). . . . . . . . . . . . . . . . . . 2

In re Bonilla, 424 S.W.3d 528 (Tex.Crim.App. 2014). . . . . . . . . . . . . . . . . . . . . 3-4

In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013).. . . . . . . . . . . . . 4


CONSTITUTIONAL PROVISIONS,                                     STATUTES               AND        RULES           OF
APPELLATE PROCEDURE

Tex. Const. art. V, Sec. 12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Code Crim. Pro. art.4.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Code Crim. Proc. art. 39.14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Code Crim. Proc. art.44.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Gov’t Code §22.221(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Tex. R. App. Proc. 25.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. R. App. Proc. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. Proc. 72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. Disciplinary R. Prof’l Conduct 8.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

      Comes now Ari Michael Burns, Relator, and pursuant to Rules 52 and 72 of the

Texas Rules of Appellate Procedure, files this Petition for Writs of Mandamus and

Prohibition to compel Travis County District Attorney Rosemary Lehmberg,

Respondent, to comply with Article 39.14’s requirement that discovery be provided

“as soon as practicable” after request from defense counsel and to prohibit the denial

of discovery until Respondent’s own arbitrarily-chosen date.



                         STATEMENT OF THE CASE

      Relator’s undersigned attorney, McKinley Melancon, requested discovery

pursuant to Article 39.14 of the Code of Criminal Procedure on December 12, 2014,

and again on April 2, 2015. To date, Respondent Travis County District Attorney

Rosemary Lehmberg has withheld discovery. On May 28, 2015, the assistant Travis

County district attorney informed Relator’s counsel, Keith S. Hampton, that it was

Respondent’s policy to provide discovery only after indictment. Relator seeks relief

from this Court to enforce the ministerial duty of Respondent to provide discovery

“as soon as practicable,” as so plainly required by statute. Relator also seeks relief

from this Court to permanently terminate the policy of denial of discovery until the


                                          1
prosecution decides to seek an indictment.

                                   RESTRAINT

      Applicant is being restrained in his liberty by the requirement of appearance

to court as a condition of bond. Applicant is therefore under restraint. Ex parte

Robinson, 641 S.W.2d 552 (Tex.Crim.App. 1982).



                      STATEMENT OF JURISDICTION

      This Court has jurisdiction to issue a writ of mandamus in this cause under

Article 5 §5(c) of the Texas Constitution, Article 4.04 of the Code of Criminal

Procedure, and Rule 52 of the Texas Rules of Appellate Procedure. Only this Court

can grant relief because the appellate courts have no original jurisdiction to issues

writs of mandamus against district attorneys. Dodson v. State, 988 S.W.2d 833, 835

(Tex. App. – San Antonio 1999, no pet.); Tex. Gov’t Code §22.221(b).



                              ISSUE PRESENTED

      Respondent should be compelled to provide discovery “as soon as practicable,”

as required by the Texas discovery statute, and should be prohibited from withholding

discovery until indictment.



                                          2
                                STATEMENT OF FACTS

       Respondent has withheld discovery requested pursuant to Article 39.14 of the

Code of Criminal Procedure because, as the assistant district attorney said, “If it’s

unindicted, we won’t send discovery out until it is indicted.” (RR, p. 4)(attached).



                                        ARGUMENT

       Article 39.14(a) of the Code of Criminal Procedure states in pertinent part: “as

soon as practicable after receiving a timely request from the defendant the state shall

produce and permit the inspection and the electronic duplication, copying, and

photographing, by or on behalf of the defendant, of [items of evidence].” Tex. Code

Crim. Proc. art. 39.14(a).1 Because Relator made such a request, the State has a non-

discretionary duty to provide counsel discovery “as soon as practicable.”

       Relator was arrested on November 18, 2014 for possession of a controlled

substance. Relator has never been indicted in Cause No. D-DC-14-206545. Relator’s

undersigned attorney, McKinley Melancon, requested discovery on December 12,

2014, and again on April 2, 2015. As of June 2, 2015, the State has produced no

discovery. Respondent’s policy is to provide discovery only upon indictment.

       1
         Article 39.14 was substantially rewritten with the passage of Senate Bill 1611, the Michael
Morton Act. See Hampton, Keith S., Texas Discovery: Where We Were, Where We Are Headed,
Voice for the Defense (Nov. 20, 2014).

                                                 3
      The date of indictment is controlled by Respondent. By making discovery

conditional upon Respondent’s decision to seek an indictment, Respondent has

effectively placed prosecutors in control of the disclosure of discovery items.

Respondent’s policy conflicts with the plain language of the statute wherein

lawmakers imposed a duty of disclosure “as soon as practicable” and not “upon the

successful acquisition of indictment.”

      Relator is entitled to mandamus relief if he is seeking to compel a ministerial

act and has no adequate remedy at law to do so. In re Bonilla, 424 S.W.3d 528, 533

(Tex.Crim.App. 2014). “[T]he ministerial-act requirement, is satisfied if the relator

can show a clear right to the relief sought. A clear right to relief is shown when the

facts and circumstances dictate but one rational decision under unequivocal, well-

settled (i.e., from extant statutory, constitutional, or case law sources), and clearly

controlling legal principles.” In re State ex rel. Weeks, 391 S.W.3d 117, 122

(Tex.Crim.App. 2013)(citations omitted). Appeal ordinarily provides an adequate

remedy at law. De Leon v. Aguilar, 127 S.W.3d 1, 6-7 (Tex.Crim.App. 2004).

      Article 39.14 of the Code of Criminal Procedure mandates that “the state shall

produce” discovery “as soon as practicable” after a request for discovery by defense

counsel. This statute plainly does not condition discovery only “after indictment.”

Relator therefore has a clear right to discovery under the circumstances of this case.

                                          4
      Relator has no remedy at all except for a mandamus action in this Court. The

district court has no jurisdiction to order discovery because Relator has not been

indicted. Tex. Const. art. V, Sec. 12(b) (indictment invests court with jurisdiction).

He cannot appeal. Tex. Code Crim. Proc. art. 44.02; Tex. R. App. Proc. 25.2. Nor can

he seek redress in the Court of Appeals. Tex. Gov’t Code §22.221(b). Thus, Relator

has no other remedy than mandamus relief from this Court.

      Relator not only seeks this Court to compel Respondent to provide discovery,

but to also end the policy of withholding discovery until some date and time after

indictment. Relator is entitled to a writ of prohibition if he has a clear right to relief

and no adequate remedy at law.           Ex parte Chi, 256 S.W.3d 702, 703-704

(Tex.Crim.App. 2008). Like the mandamus sought, Relator has no other remedy than

a writ from this Court prohibiting Respondent from conditioning discovery upon

some date and time of its own choosing.

      Relator has a clear right to relief because Respondent’s policy plainly violates

Rule 8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct, as the

Professional Ethics Committee of the State Bar of Texas has plainly held. The

Committee reasoned:

      Because article 39.14 requires an “open file” policy by prosecutors
      without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if
      they refused to produce and permit the inspection of their file in

                                            5
       accordance with the provisions of article 39.14 unless defense lawyers
       first agreed to waive certain rights of their clients. Under article 39.14
       – and, therefore, under Rule 8.04(a)(12) – prosecutors are required to
       produce and permit the inspection of their files, subject only to the
       limitations set forth in article 39.14. Thus, prosecutors would violate
       Rule 8.04(a)(12) if they attempted to impose conditions not found in
       article 39.14 before making the required disclosures.

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R. Prof’l

Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West

2014). The denial of discovery until indictment is a unilaterally imposed condition

that violates this decision as well as the plain language of the statute. Relator thus

has a clear right to relief.




                                           6
                                   PRAYER

      WHEREFORE, Relator prays the Court grant this petition and issue a writ of

mandamus ordering Respondent to terminate the policy of her office of withholding

discovery until indictment, comply with the clear, direct ministerial duty under

Article 39.14 of the Code of Criminal Procedure and provide counsel with whatever

discovery Respondent may have accumulated since the date of Relator’s arrest.

                                            Respectfully submitted,




                                            KEITH HAMPTON
                                            Attorney at Law
                                            1103 Nueces Street
                                            Austin, Texas 78701
                                            512-476-8484 (o)
                                            512-762-6170 (c)
                                            512-477-3580 (f)
                                            keithshampton@gmail.com
                                            State Bar No. 08873230

                                            MCKINLEY MELANCON
                                            Attorney at Law
                                            1307 Nueces Street
                                            Austin, Texas 78701
                                            lawfirm.melancon@gmail.com
                                            TEL: (512) 954-0726
                                            FAX: (512) 382-1482
                                            CELL: (832) 866-0506
                                            SBN: 24084323

                                        7
                CERTIFICATION OF FACTUAL STATEMENTS

      I, Keith S. Hampton, hereby certify that every factual statement contained
within this petition is supported by competent evidence included in the record or
appendix.




                                             Keith S. Hampton



                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing has
been delivered to the following parties and interested persons: electronically to
Scott.Taliaferro@traviscountytx.gov, and personally to Ari Michael Burns on this
day, June 2, 2015.




                                             KEITH S. HAMPTON


                       CERTIFICATE OF COMPLIANCE

       I hereby certify that this petition contains 781 words and complies with Rule
9.4 of the Texas Rules of Appellate Procedure.




                                             KEITH S. HAMPTON



                                         8
                                                     APPENDIX


Article 39.14 of the Code of Criminal Procedure. . . . . . . . . . . . . . . . . . . . . . . . . 1-3


Tex. Disciplinary R. Prof’l Conduct R. 8.04, reprinted in Tex. Gov’t Code, tit. 2,
subtit. G, app. A (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6


Opinion 636, Professional Ethics Committee of the State Bar of Texas (2014). 7-8


Reporter’s Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-10

Affidavit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
                  Article 39.14 of the Code of Criminal Procedure

Art. 39.14. DISCOVERY. (a) Subject to the restrictions provided by Section
264.408, Family Code, and Article 39.15 of this code, as soon as practicable after
receiving a timely request from the defendant the state shall produce and permit the
inspection and the electronic duplication, copying, and photographing, by or on
behalf of the defendant, of any offense reports, any designated documents, papers,
written or recorded statements of the defendant or a witness, including witness
statements of law enforcement officers but not including the work product of counsel
for the state in the case and their investigators and their notes or report, or any
designated books, accounts, letters, photographs, or objects or other tangible things
not otherwise privileged that constitute or contain evidence material to any matter
involved in the action and that are in the possession, custody, or control of the state
or any person under contract with the state. The state may provide to the defendant
electronic duplicates of any documents or other information described by this article.
The rights granted to the defendant under this article do not extend to written
communications between the state and an agent, representative, or employee of the
state. This article does not authorize the removal of the documents, items, or
information from the possession of the state, and any inspection shall be in the
presence of a representative of the state.

(b) On motion of a party and on notice to the other parties, the court in which an
action is pending may order one or more of the other parties to disclose to the party
making the motion the name and address of each person the other party may use at
trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.
The court shall specify in the order the time and manner in which the other party must
make the disclosure to the moving party, but in specifying the time in which the other
party shall make disclosure the court shall require the other party to make the
disclosure not later than the 20th day before the date the trial begins.

(c) If only a portion of the applicable document, item, or information is subject to
discovery under this article, the state is not required to produce or permit the
inspection of the remaining portion that is not subject to discovery and may withhold
or redact that portion. The state shall inform the defendant that a portion of the
document, item, or information has been withheld or redacted. On request of the
defendant, the court shall conduct a hearing to determine whether withholding or
redaction is justified under this article or other law.

                                          1
(d) In the case of a pro se defendant, if the court orders the state to produce and
permit the inspection of a document, item, or information under this subsection, the
state shall permit the pro se defendant to inspect and review the document, item, or
information but is not required to allow electronic duplication as described by
Subsection (a).

(e) Except as provided by Subsection (f), the defendant, the attorney representing the
defendant, or an investigator, expert, consulting legal counsel, or other agent of the
attorney representing the defendant may not disclose to a third party any documents,
evidence, materials, or witness statements received from the state under this article
unless:
      (1) a court orders the disclosure upon a showing of good cause after
      notice and hearing after considering the security and privacy interests of
      any victim or witness; or
      (2) the documents, evidence, materials, or witness statements have
      already been publicly disclosed.

(f) The attorney representing the defendant, or an investigator, expert, consulting
legal counsel, or agent for the attorney representing the defendant, may allow a
defendant, witness, or prospective witness to view the information provided under
this article, but may not allow that person to have copies of the information provided,
other than a copy of the witness's own statement. Before allowing that person to view
a document or the witness statement of another under this subsection, the person
possessing the information shall redact the address, telephone number, driver's license
number, social security number, date of birth, and any bank account or other
identifying numbers contained in the document or witness statement. For purposes
of this section, the defendant may not be the agent for the attorney representing the
defendant.

(g) Nothing in this section shall be interpreted to limit an attorney's ability to
communicate regarding his or her case within the Texas Disciplinary Rules of
Professional Conduct, except for the communication of information identifying any
victim or witness, including name, except as provided in Subsections (e) and (f),
address, telephone number, driver's license number, social security number, date of
birth, and bank account information or any information that by reference would make
it possible to identify a victim or a witness. Nothing in this subsection shall prohibit
the disclosure of identifying information to an administrative, law enforcement,

                                           2
regulatory, or licensing agency for the purposes of making a good faith complaint.

(h) Notwithstanding any other provision of this article, the state shall disclose to the
defendant any exculpatory, impeachment, or mitigating document, item, or
information in the possession, custody, or control of the state that tends to negate the
guilt of the defendant or would tend to reduce the punishment for the offense charged.

(i) The state shall electronically record or otherwise document any document, item,
or other information provided to the defendant under this article.

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party
shall acknowledge in writing or on the record in open court the disclosure, receipt,
and list of all documents, items, and information provided to the defendant under this
article.

(k) If at any time before, during, or after trial the state discovers any additional
document, item, or information required to be disclosed under Subsection (h), the
state shall promptly disclose the existence of the document, item, or information to
the defendant or the court.

(l) A court may order the defendant to pay costs related to discovery under this
article, provided that costs may not exceed the charges prescribed by Subchapter F,
Chapter 552, Government Code.

(m) To the extent of any conflict, this article prevails over Chapter 552, Government
Code.

(n) This article does not prohibit the parties from agreeing to discovery and
documentation requirements equal to or greater than those required under this article.

Acts 2013, 83rd Leg., R.S., Ch. 49 (S.B. 1611), Sec. 2, eff. January 1, 2014.




                                           3
Rule 8.04 Misconduct

(a) A lawyer shall not:

(1) violate these rules, knowingly assist or induce another to do so, or do so through
the acts of another, whether or not such violation occurred in the course of a
client-lawyer relationship;
(2) commit a serious crime or commit any other criminal act that reflects adversely
on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice;
(5) state or imply an ability to influence improperly a government agency or official;
(6) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law;
(7) violate any disciplinary or disability order or judgment;
(8) fail to timely furnish to the Chief Disciplinary Counsels office or a district
grievance committee a response or other information as required by the Texas Rules
of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or
other legal ground for failure to do so;
(9) engage in conduct that constitutes barratry as defined by the law of this state;
(10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure
relating to notification of an attorneys cessation of practice;
(11) engage in the practice of law when the lawyer is on inactive status or when the
lawyers right to practice has been suspended or terminated, including but not limited
to situations where a lawyers right to practice has been administratively suspended
for failure to timely pay required fees or assessments or for failure to comply with
Article XII of the State Bar Rules relating to Mandatory Continuing Legal Education;
or
(12) violate any other laws of this state relating to the professional conduct of lawyers
and to the practice of law.

(b) As used in subsection (a)(2) of this Rule, serious crime means barratry; any felony
involving moral turpitude; any misdemeanor involving theft, embezzlement, or
fraudulent or reckless misappropriation of money or other property; or any attempt,
conspiracy, or solicitation of another to commit any of the foregoing crimes.




                                           4
Comment:

1. There are four principal sources of professional obligations for lawyers in Texas:
these Rules, the State Bar Act, the State Bar Rules, and the Texas Rules of
Disciplinary Procedure (TRDP). Rule 1.06(O) of the TRDP contains a partial listing
of the grounds for discipline under those Rules.

2. Rule 8.04 provides a comprehensive restatement of all forms of conduct that will
subject a lawyer to discipline under either these Rules, the State Bar Act, the TRDP,
or the State Bar Rules. In that regard, Rule 8.04(a)(1) is intended to correspond to
TRDP Rule 1.06(O)(1); Rules 8.04(a)(2) and 8.04(b) are intended to correspond to
the provisions of TRDP Rules 1.06(O)(8) and (9) and Rules 1.06(O) and (U), as well
as certain other crimes; and Rules 8.04(a)(7)-(11) are intended to correspond to TRDP
1.06(O)(3)-(7), respectively. Rule 8.04(a)(12) of these Rules corresponds to a
prohibition that was contained in the last (unnumbered) paragraph of former Article
X, section 7, State Bar Rules.


3. The only provisions of TRDP Rule 1.06(O) not specifically referred to in Rule 8.04
is Rule 1.06(O)(2)s provision for imposing discipline on an attorney in Texas for
conduct resulting in that lawyers discipline in another jurisdiction, which is provided
for by Rule 8.05 of these Rules.

4. Many kinds of illegal conduct reflect adversely on fitness to practice law.
However, some kinds of offenses carry no such implication. Traditionally in this
state, the distinction has been drawn in terms of serious crimes and other offenses.
See former Article X, sections 7(8) and 26 of the State Bar Rules (now repealed). The
more recently adopted TRDP distinguishes between intentional crimes, serious
crimes, and other offenses. See TRDP Rules 1.06(O) and (U), respectively. These
Rules make only those criminal offenses either amounting to serious crimes or having
the salient characteristics of such crimes the subject of discipline. See Rules
8.04(a)(2), 8.04(b).

5. Although a lawyer is personally answerable to the entire criminal law, a lawyer
should be professionally answerable only for offenses that indicate lack of those
characteristics relevant to his fitness for the practice of law, as fitness is defined in
these Rules. A pattern of repeated offenses, even ones of minor significance when

                                           5
considered separately, can indicate indifference to legal obligations that legitimately
could call a lawyer's overall fitness to practice into question.

6. A lawyer may refuse to comply with an obligation imposed by law upon a good
faith belief, openly asserted, that no valid obligation exists. The provisions of Rule
1.02(d) concerning a good faith challenge to the validity, scope, meaning or
application of the law apply to challenges to legal regulation of the practice of law.

7. Lawyers holding public office assume legal responsibilities going beyond those of
other citizens. A lawyers abuse of public office can suggest an inability to fulfill the
professional role of attorney. The same is true of abuse of positions of private trust.
See Rules 8.04(a)(2), 8.04(a)(3), 8.04(b).

Tex. Disciplinary R. Prof’l Conduct R. 8.04, reprinted in Tex. Gov’t Code, tit. 2,
subtit. G, app. A (West 2014)




                                           6
                                                                   1


 1                        REPORTER'S RECORD

 2                TRIAL COURT CAUSE NO. 14-207448

 3

 4

 5   STATE OF TEXAS                )     IN THE DISTRICT COURT
                                   )
 6   VS.                           )     TRAVIS COUNTY, TEXAS
                                   )
 7   JOHN EDWARD LEWIS             )     403RD JUDICIAL DISTRICT

 8

 9

10

11                       *******************

12                       COURT PROCEEDINGS

13                       *******************

14

15

16

17

18

19

20         On the 28th day of May, 2015, the following

21   proceedings came on to be heard in the above-entitled

22   and numbered cause before the Honorable Brenda Kennedy,

23   Judge presiding, held in Austin, Travis County, Texas:

24         Proceedings reported by Machine Shorthand.

25


                           ROXANNE DAVENPORT, CSR
                            403rd District Court
                               (512) 854-9620
                                                               2


 1                         APPEARANCES

 2

 3   JOE FREDERICK                    KEITH S. HAMPTON
     District Attorney's Office       Attorney at Law
 4   SBOT NO. 24057071                SBOT NO. 08873230
     509 West 11th Street             1103 Nueces
 5   Austin, Texas 78701              Austin, Texas 78701
     Phone: (512) 854-9400            Phone: (512) 476-8484
 6   ATTORNEY FOR THE STATE           ATTORNEY FOR THE DEFENDANT

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                         ROXANNE DAVENPORT, CSR
                          403rd District Court
                             (512) 854-9620
                                                          3


 1                              INDEX

 2
     MAY 28, 2015                                  Page
 3
     Proceedings................................      4
 4
     Adjournment................................      4
 5
     Court Reporter's Certificate...............      5
 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                         ROXANNE DAVENPORT, CSR
                          403rd District Court
                             (512) 854-9620
                                                                           4


 1                   THE COURT:      This is an unindicted case

 2   and he's making a record about discovery.              I don't know

 3   if you-all have any of the information or not.

 4                   MR. FREDERICK:        What is the case name?

 5                   MR. HAMPTON:       It's John Lewis and the

 6   cause number is D-1-DC-14-207448.           He was arrested

 7   January 15th.

 8                   THE COURT:      Have you been to their --

 9   what is the offense?

10                   MR. HAMPTON:       Felon in possession,

11   unlawful possession of a firearm by a felon.

12                   THE COURT:      They may have the discovery

13   materials.

14                   MR. FREDERICK:        If it's unindicted, we

15   won't send discovery out until it is indicted.

16                   MR. HAMPTON:       All right.        And I guess

17   the only other thing I would want to reflect is that I

18   did request discovery on February 26th of this year.

19   And if I am understanding the prosecutor correctly,

20   they provide discovery once the person is indicted?

21                   MR. FREDERICK:        Correct.

22                   MR. HAMPTON:       Okay.        All right.   That's

23   all I need.

24                   THE COURT:      All right.         Thank you.

25                   (Proceedings adjourned)


                            ROXANNE DAVENPORT, CSR
                             403rd District Court
                                (512) 854-9620
                                                               5


 1                    REPORTER'S CERTIFICATE

 2   STATE OF TEXAS )
     COUNTY OF TRAVIS )
 3

 4       I, Roxanne Davenport, Official Court Reporter in

 5   and for the 403rd District Court, Travis County, State

 6   of Texas, do hereby certify that the above and

 7   foregoing contains a true and correct transcription of

 8   proceedings requested by counsel for the parties to be

 9   included in this volume of the Reporter's Record, in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were reported

12   by me.

13       I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

15   exhibits, if any, admitted by the respective parties.

16       I further certify that the total cost for the

17   preparation of this Reporter's Record is $31.25     and

18   was paid by Keith Hampton, Attorney for Defendant.

19       WITNESS MY HAND this the 28th day of May, 2015.

20
                          /s/ Roxanne Davenport
21                        Roxanne Davenport, TX CSR 5359
                          Expiration Date: 12/31/2015
22                        403rd District Court
                          P.O. Box 1748
23                        Austin, Texas 78767
                          (512) 854-9620
24                        roxanne.davenport@traviscountytx.gov

25


                          ROXANNE DAVENPORT, CSR
                           403rd District Court
                              (512) 854-9620
