              COURT OF CRIMINAL APPEALS

                       PD-0019-15, PD-0020-15
                       PD-0021-15, PD-0022-15                                November 2, 2015




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

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




                     Appellee’s Reply Brief

Michael Mowla              L.T. (Butch) Bradt         George R. Milner III
445 E. FM 1382 No. 3-718   14090 S.W. Freeway # 300   2828 N. Harwood St. Suite 1950
Cedar Hill, Texas 75104    Sugar Land, Texas 77478    Dallas, Texas 75201
Phone: 972-795-2401        Phone: 281-201-0700        Phone: 214-651-1121
Fax: 972-692-6636          Fax: 281-201-1202          Fax: 214-953-1366
michael@mowlalaw.com       ltbradt@flash.net          ItsRainingII@aol.com
Texas Bar No. 24048680     Texas Bar No. 0284160      Texas Bar No. 00784611
Attorney for Appellee      Attorney for Appellee      Attorney for Appellee
and Lead Counsel




                      ORAL ARGUMENT GRANTED
I. Table of Contents

I.        Table of Contents .............................................................................................2 
II.       Table of Authorities .........................................................................................4 
III.      Argument .........................................................................................................6 
       1.  The State makes various incorrect factual assertions ......................................6 
          i.       The State’ factual contention that Appellee alleged
                   prosecutorial misconduct “in an effort to avoid paying the
                   $20 million dollar judgment” or “face a criminal trial” is
                   incorrect. ................................................................................................6 
          ii.      The State incorrectly asserts that the “State never
                   stipulated to admissibility of Appellee’s Exhibits” because
                   the State: (1) stipulated to the authenticity of the exhibits;
                   and (2) the stipulation as to the authenticity of the exhibits
                   is a judicial admission by the State. Thus, the documents
                   attached to the Motion to Dismiss: (1) are conclusive upon
                   the State; and (2) relieves Appellee’s burden of proving
                   the admitted facts. Thus, the State is barred from disputing
                   the admitted facts...................................................................................8 
       2.  The State’s claim that Appellee “apparently no longer seeks to
           assert his due process claim concerning lack of an impartial
           prosecutor” is without merit because Appellee specifically
           argues throughout his Brief that: (1) the government singled
           Appellee out for prosecution and has not proceeded against
           others similarly situated based on the type of conduct for
           which Appellee is charged; and (2) the government’s
           discriminatory selection is invidious. A prosecutor who acts in a
           discriminatory or invidious manner and prosecutes for an
           improper purpose cannot also be an “impartial prosecutor.” ........................12 
       3.  The State presents no valid counter to Appellee’s arguments that:
           (1) Appellee proffered evidence to the Motion to Dismiss
           alleging prosecutorial misconduct; (2) the trial court in its
           discretion determined that the proffered evidence was sufficient
           to entitle Appellee to a hearing; and (3) “some evidence” means
           evidence that constitutes a colorable claim of a constitutional
           violation that may prove the elements of a presumed selective
           prosecution claim, and not evidence that proves the

                                                              2
          constitutional violation itself: (1) beyond a reasonable doubt, (2)
          by clear and convincing evidence, or (3) by a preponderance of
          the evidence. ..................................................................................................21 
      4.  Clarification of the Fifth Circuit standard, which is indeed the
          same standard (“colorable claim”) that Appellee argues this
          Court should adopt.........................................................................................25 
      5.  Not only have nearly all of the federal circuit court of appeals
          adopted standards substantially similar to the standard that
          Appellee argues this Court should adopt, states have done so as
          well: that so long as a defendant attaches a proffer of evidence to
          a motion to dismiss due to prosecutorial misconduct that the trial
          court in its discretion determines to present a colorable claim of
          a constitutional violation, the defendant has attached “some
          evidence,” and the trial court has discretion to conduct a hearing
          on the motion to dismiss. ...............................................................................26 
IV.       Conclusion and Prayer ...................................................................................30 
V.        Certificate of Service .....................................................................................31 
VI.       Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................32 




                                                             3
II. Table of Authorities

Cases 
Blackledge v. Perry, 417 U.S. 21 (1974) .................................................................14
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005).......................................10
Commonwealth v. Washington W., 928 N.E.2d 908 (Mass. 2010) .........................27
Commonwealth v. Washington W., 967 N.E.2d 615 (Mass. 2012) .........................28
Gawlik v. State, 608 S.W.2d 671 (Tex. Crim. App. 1980) ......................................22
Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)..........................................22
Henderson v. Heyer-Schulte Corp., 600 S.W.2d 844 (Tex. App.
     Houston [1st Dist.] 1980, writ ref’d n.r.e.)......................................................9
Hollen v. State, 87 S.W.3d 151 (Tex. App. Fort Worth 2002), reversed
      on other grounds, 117 S.W.3d 798 (Tex. Crim. App. 2003) ........................10
M.J.R.’s Fare of Dallas, Inc. v. Permit and License Appeal Bd. of
      Dallas, 823 S.W.2d 327 (Tex. App.-Dallas 1991, writ den.) ........................10
Mahoney v. Mahoney, 103 S.W.2d 459 (Tex. Civ. App. Amarillo 1937,
    writ ref.) .........................................................................................................11
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)........................................................13
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006) ......................................10
Matney v. State, 99 S.W.3d 626 (Tex. App. Houston [1st Dist.] 2002) ..................22
Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692 (Tex.
     1980) ..............................................................................................................11
Perry v. Brooks, 808 S.W.2d 227, 229 (Tex. App. Houston [14th
      Dist.]1991, no writ)........................................................................................10
Porter v. Texas Dept. of Public Safety, 712 S.W.2d 263 (Tex. App. San
      Antonio 1986, no writ) ....................................................................................9
Richardson v. State, 831 So. 2d 799 (Fla. App. 2002) ............................................26
State v. Ballard, 752 A.2d 735 (N.J. Super. 2000) ..................................................29
State v. LaMar, 767 N.E.2d 166 (Ohio 2002)..........................................................28
State v. Smith, 703 A.2d 954 (N.J. Super. 1997) .....................................................29
State v. Staten, 1998 Wash. App. LEXIS 869 (Wa. Ct. App. 1998)
      (unpublished opinion) ....................................................................................28

                                                            4
United States v. Armstrong, 517 U.S. 456 (1996) ...................................................22
United States v. Brown, 298 F.3d 392 (5th Cir. 2002) ............................................15
United States v. Cooks, 52 F.3d 101 (5th Cir. 1995) ...............................................25
United States v. Goodwin, 457 U.S. 368 (1982) ......................................................15
United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978)........................................25
United States v. Meyer, 810 F.2d 1242 (D.C. Cir. 1987) ........................................15
United States v. Taylor, 749 F.2d 1511 (11th Cir. 1985) (per curiam) ...................15
Wayte v. United States, 470 U.S. 598 (1985) ..........................................................22
Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787 (1987)
      .......................................................................................................................14
Other Authorities 
Black’s Law Dictionary (7th ed. 1999) ............................................................ 14, 24
Concise Oxford American Thesaurus (2006) ..........................................................24
West’s Legal Thesaurus/Dictionary, Spec. Deluxe Ed. (1986) ...............................14
Rules 
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................32
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................33
Tex. Rule App. Proc. 9.5 (2015) ..............................................................................32
Tex. Rule Evid. 803 (2013)......................................................................................10
Tex. Rule Evid. 902 (2013)......................................................................................10
Constitutional Provisions 
U.S. Const. Amend. V..............................................................................................23
U.S. Const. Amend. XIV .........................................................................................23




                                                              5
To The Honorable Judges of the Court of Criminal Appeals:

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


III. Argument

   1. The State makes various incorrect factual assertions
      Throughout its brief, the State makes various incorrect assertions about the

facts. This Reply Brief addresses the most pertinent incorrect assertions they go to:

(1) the reason why Appellee filed the motion to dismiss; and (2) the admissibility of

the documents attached to the Motion to Dismiss. A correct recitation of the facts,

fully supported by record citations, is found in Appellee’s Brief.

         i. The State’ factual contention that Appellee alleged prosecutorial
            misconduct “in an effort to avoid paying the $20 million dollar
            judgment” or “face a criminal trial” is incorrect.
      The State alleges in its brief that “Hill alleges prosecutorial misconduct in an

effort to avoid paying the $20 million judgment or facing a criminal trial.” State’s

Br., 6. The State also claims that “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.” State’s Br., 6. And, the State contents, “[B]y this time, the DA’s Office had

dismissed the charges against Hill’s wife.” State’s Br., 6.




                                          6
      First, Appellee was indicted on March 31, 2011. (F11-00180/05-13-00421-

CR) (CR-180, 6, 427). After conducting an investigation, Appellee uncovered

compelling circumstantial evidence that Lisa Blue, who at the time was involved in

civil litigation against Appellee over a fee dispute, corruptly influenced Watkins,

who in turn authorized obtaining the four indictments against Appellee. The factual

basis for Appellee’s claims are detailed in the Appellee’s Brief. On December 7,

2010, Blue and her associated attorneys filed a complaint in federal court against

Appellee and his wife, seeking to recover over $50 million in the litigation in federal

court. (RR5, DX-1, 117-123, 139, 408). Then on March 31, 2011, about two weeks

before the scheduled start of the fee dispute trial between Appellee and Blue, the

indictments against Appellee and his wife were returned, and were made public on

April 4, 2011. (RR5, DX-1, 141, 146-147; CR-180, 162; CR-182, 158; CR-183,

158; CR-191, 157).

      Second, Appellee did not file the Motion to Dismiss until November 16, 2012,

asserting that his constitutional rights to Due Process and Equal Protection were

violated because, due to Blue’s bribing and influence of Watkins, Appellee was: (1)

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

disinterested prosecutor. (CR-180, 31-488).

      Thus, the State’s factual assertion that “Hill alleges prosecutorial misconduct

in an effort to avoid paying the $20 million judgment...” has no basis in fact because


                                          7
Appellee filed the Motion to Dismiss on November 16, 2012 and did so only after a

detailed investigation. Further, the Motion to Dismiss was filed long after Appellant

was indicted on March 31, 2011, which was two weeks before the start of the fee

dispute, and even longer after Blue and her associated attorneys filed a complaint in

federal court against Appellee and his wife, seeking to recover over $50 million on

the settlement. (RR5, DX-1, 117-123, 139, 408). If Appellee filed the Motion to

Dismiss merely to try avoid paying a judgment, he would have done so long before

November 2012. And, it was Blue’s greed and Watkins’s corruptibility that brought

on the Motion to Dismiss, not any action by Appellee.

      Finally, the State provides no factual basis for its assertion that Appellee

alleged prosecutorial misconduct “in an effort to avoid...facing a criminal trial.”

This is a mere conclusory statement due to the fact that Appellee dared to assert his

constitutional rights to: (1) not be selectively prosecuted; and (2) a disinterested

prosecutor.

         ii. The State incorrectly asserts that the “State never stipulated to
             admissibility of Appellee’s Exhibits” because the State: (1)
             stipulated to the authenticity of the exhibits; and (2) the stipulation
             as to the authenticity of the exhibits is a judicial admission by the
             State. Thus, the documents attached to the Motion to Dismiss: (1)
             are conclusive upon the State; and (2) relieves Appellee’s burden of
             proving the admitted facts. Thus, the State is barred from disputing
             the admitted facts.
      The State asserts that, although Appellee claims that the State stipulated to the

“authenticity and admissibility” of his attachments, the State “never stipulated to

                                          8
admissibility,” and that “the trial court admitted Hill’s Exhibits 1-4 only “for record

purposes.” This is an irrelevant, “hair-splitting” argument, and is inconsequential

and trivial. When the trial court asked the State, “any objection” to the admission of

the exhibits, the State responded, “Not -- not for authenticity purposes, Your Honor,”

and “No authenticity objection, Your Honor.” (RR4, 30-31).

      It is axiomatic that all documents are hearsay. Further, before any document

can be admitted as an exception under the hearsay rule, the party offering the

document must show it is authentic.           For instance, Texas Rule of Evidence

803(8) provides that public records are not excluded under the hearsay rule. To

Qualify under Rule 803(8), the proponent must show that the document is

authentic. See Porter v. Texas Dept. of Public Safety, 712 S.W.2d 263, 265 (Tex.

App. San Antonio 1986, no writ); Tex. Rule Evid. 803(8) (2013); see also

Henderson v. Heyer-Schulte Corp., 600 S.W.2d 844, 850 (Tex. App. Houston [1st

Dist.] 1980, writ ref’d n.r.e.) (Trial court properly excluded a document that a

witness could not identify or authenticate). Thus, a document is authentic if a

sponsoring witness vouches for its authenticity or if the document meets the

requirements of self-authentication in Texas Rule of Evidence 902. See Tex. Rule

Evid. 902 (2013).

      The State stipulated to the authenticity of these documents. A stipulation

“obviates the need for proof on [the] litigable issue.” Hollen v. State, 87 S.W.3d


                                          9
151, 155 (Tex. App. Fort Worth 2002), reversed on other grounds, 117 S.W.3d 798

(Tex. Crim. App. 2003); see also M.J.R.’s Fare of Dallas, Inc. v. Permit and License

Appeal Bd. of Dallas, 823 S.W.2d 327, 330-331 (Tex. App.-Dallas 1991, writ

den.) (When parties stipulate to certain facts and documentary evidence, “these

stipulations are binding upon the parties, the trial court, and the reviewing

court”) (emphasis supplied) and Perry v. Brooks, 808 S.W.2d 227, 229 (Tex. App.

Houston [14th Dist.]1991, no writ) (“Stipulations are conclusive as to the facts

stipulated and to all matters necessarily included therein...As such, stipulations

enjoy equal dignity with judicial admissions, which eliminate an adversary’s

necessity of proof and establish the admitted elements as a matter of law.) (emphasis

supplied).

      Not only did the State stipulate to the facts; the State judicially admitted the

facts because when a party stipulates to evidence, it is a judicial admission, and

there is no longer a need for the moving party to provide proof of the

facts stipulated to. See Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005) and

Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006). A judicial admission is

“conclusive upon the party making it, and it relieves the opposing party’s

burden of proving the admitted fact, and bars the admitting party from

disputing it.” Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692,




                                         10
694 (Tex. 1980) (emphasis supplied); see also Mahoney v. Mahoney, 103 S.W.2d

459, 462 (Tex. Civ. App. Amarillo 1937, writ ref.).

      As a result, there is no basis in fact or law for the State’s assertion that the

“State never stipulated to admissibility of Appellee’s Exhibits” because the State:

(1) stipulated to the authenticity of the exhibits; and (2) the stipulation as to the

authenticity of the exhibits is a judicial admission by the State. Thus, the documents

attached to the Motion to Dismiss: (1) are conclusive upon the State; (2) relieve

Appellee’s burden of proving the admitted facts; and (3) because of the

conclusiveness and removal of Appellee’s burden, bars the State now from disputing

the admitted facts.




                                         11
   2. The State’s claim that Appellee “apparently no longer seeks to assert his
      due process claim concerning lack of an impartial prosecutor” is without
      merit because Appellee specifically argues throughout his Brief that: (1)
      the government singled Appellee out for prosecution and has not
      proceeded against others similarly situated based on the type of conduct
      for which Appellee is charged; and (2) the government’s discriminatory
      selection is invidious. A prosecutor who acts in a discriminatory or
      invidious manner and prosecutes for an improper purpose cannot also be
      an “impartial prosecutor.”

      In its brief, the State claims “[O]n appeal to this Court, Hill apparently no

longer seeks to assert his 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.” State’s Br., 24-25. As the

following will show, the State’s arguments are without merit because Appellee in

fact has not abandoned any arguments because a prosecutor who acts in a

discriminatory or invidious manner and prosecutes for an improper purpose cannot

also be an “impartial prosecutor.

      First, Appellee argues and has shown that he met the standard of establishing

a prima facie case of selective prosecution in violation of the Fifth and Fourteenth

Amendments. Appellee was entitled to a hearing under the “presumption of

prosecutorial vindictiveness” method because he provided “some evidence” that

shows: (1) the government Appellee out for prosecution and has not proceeded

against others similarly situated based on the type of conduct for which Appellee

                                           12
was charged; and (2) the government’s discriminatory selection is invidious. This

is all Appellee is required to show for the burden to shift to the State to justify the

discriminatory treatment. The State not only failed to do so, but the evidence in fact

showed the invidious and criminal nature of the State’s behavior.

      Second, the State apparently concludes that Appellee’s right to an impartial

prosecutor is divorced from his proven claims of selective and vindictive prosecution

(“As a result, the State will address only the claims for selective and vindictive

prosecution,” State’s Br., 24-25). This is an incorrect conclusion. The State clearly

misunderstands the meaning of the phrase “impartial prosecutor.”

      The issue of what constitutes an “impartial” prosecutor requires explanation.

The opposite of an “impartial prosecutor” is a “partial prosecutor.” “Impartial”

means “unbiased; disinterested.” Black’s Law Dictionary, 7th ed., 755 (1999).

“Partial”     means    “prejudiced,      unfair,   or     involved.”    West’s       Legal

Thesaurus/Dictionary, Spec. Deluxe Ed., 559 (1986). A prosecutor is not “partial”

merely      because   the   prosecutor    zealously     seeks   a   conviction. In    fact,

“[I]n an adversary system, [prosecutors] are necessarily permitted to be zealous in

their enforcement of the law...” Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980).

As a result, “partiality” deals not with a zeal to prosecute, but with a situation where

the personal interests of the prosecutor cause a structural conflict of interest. Young




                                            13
v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 807-808 and n.18 (1987).

As the Supreme Court of the United States observed in Young, see id. at n.18,

      “Prosecutors may on occasion be overzealous and become overly
      committed to obtaining a conviction. That problem, however, is
      personal, not structural. As the Court of Appeals for the Sixth Circuit
      said     in    disapproving      the    appointment       of an interested
      contempt prosecutor in Polo Fashions, Inc. v. Stock Buyers Int’l, Inc.,
      760 F.2d 698, 705 (1985)...such overzealousness “does not have its
      roots in a conflict of interest. When it manifests itself the courts deal
      with it on a case-by-case basis as an aberration. This is quite different
      from approving a practice which would permit the appointment
      of prosecutors whose undivided loyalty is pledged to a party interested
      only in a conviction.”

Thus, a prosecutor’s personal interest or partiality may present “an actual conflict

of interest if its potential for misconduct is deemed intolerable.” Young, 481 U.S. at

807 n.18.

      Contrary to the State’s apparent assertion that Appellee’s right to an impartial

prosecutor is divorced from his proven claims of selective and vindictive

prosecution, a prosecutor who acts in an invidious, selective, or vindictive manner

is clearly not an “impartial” prosecutor. A prosecutor acts in a “vindictive” manner

and in violation of the Due Process Clause where the prosecutor uses criminal

charges in an attempt to penalize a defendant’s valid exercise of constitutional or

statutory rights. Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). To prevail on a

claim of vindictive prosecution, a defendant must show either actual

vindictiveness or facts sufficient to give rise to a rebuttable presumption of


                                         14
vindictiveness. United States v. Goodwin, 457 U.S. 368, 373, 380-381 (1982) (A

presumption of vindictiveness is appropriate where “reasonable likelihood” that

vindictiveness exists on other grounds); see also United States v. Brown, 298 F.3d

392, 405-406 (5th Cir. 2002). A presumption of vindictiveness typically arises when

a defendant is reindicted following a trial and the charging decision is changed.

Goodwin, 457 U.S. at 381; see also United States v. Taylor, 749 F.2d 1511, 1513

(11th Cir. 1985) (per curiam) (A presumption of vindictiveness exists because the

prosecutor brought a charge carrying potentially greater sentence than the original

charge because circumstances demonstrated either actual vindictiveness or realistic

fear of vindictiveness); see also United States v. Meyer, 810 F.2d 1242, 1246-1247

(D.C. Cir. 1987) (Presumption of vindictiveness exists because the superseding

indictment was filed for the purpose of punishing the defendant who had invoked

right to trial by jury).

       Appellee has not asserted claims of vindictive prosecution in a manner as such

claims are normally made. Thus, the State’s arguments that Appellee “failed to

establish vindictive prosecution” are irrelevant to this case. See State’s Br., 30-34.

       Rather, Appellee clearly showed a claim of selective and invidious

prosecution in violation of the Fifth and Fourteenth Amendments. Appellee was

entitled to a hearing under the “presumption of prosecutorial vindictiveness”

standard because he proffered “some evidence” that shows: (1) Watkins singled out


                                          15
Appellee for prosecution and has not proceeded against others similarly situated

based on the type of conduct for which Appellee was charged; and (2) the

government’s discriminatory selection is invidious.

      The State argues that the only evidence presented regarding the selective

nature of the prosecution is that Stephanie Martin did not admit during her

testimony that Appellee’s prosecution was “unprecedented,” but instead was

unprecedented as it “related only to her caseload” State’s Br., 17). The State’s

argument is incorrect and does not accurately reflect the record. Although Martin

testified as to her caseload, the first assistant district attorney (Moore) and Martin’s

direct supervisor (Strittmatter) also testified also that they are not aware of any other

instance when a case similar to Appellee’s was prosecuted.

      As support for its contention, the State cites page 155 of volume 4 of the

Reporter’s Record. State’s Br., 17. The entire exchange on this issue on page 155

of volume 4 is as follows:

      Appellee’s counsel: Now, Ms. Martin, you testified, if I just heard
      correctly, that you had precedent. You, in fact, have never presented a
      case to the Grand Jury, mortgage fraud case, where the loan was funded,
      it was paid as expected, repaid in full and there was no complaint from
      the bank. You’ve never presented a case like that to the Grand Jury
      before the Hills.

      THE COURT: Is that a question?

      Appellee’s counsel: Is that right?

      Stephanie Martin: I’m trying to think. I don’t think so.
                                           16
      Appellee’s counsel: Yes. This case, in that respect, was
      unprecedented?

      Stephanie Martin: Where the loan was funded?

      Appellee’s counsel: Funded, repaid, no complaint from the bank.

      Stephanie Martin: Right. Just like a shoplifting case where you take
      all the groceries out to the car, put them in the car and you get caught
      and you give it back.

      Appellee’s counsel: Has --

      Stephanie Martin: You’re right.

Stephanie Martin, who was responsible for prosecuting these cases, states that

she never even presented such a case to the grand jury.

      Then on pages 49-50 of volume 4, the following exchange took place

between Appellee’s counsel and Terri Moore:

      Appellee’s counsel: Do -- are you aware of any cases in the office’s
      history, during your tenure or otherwise, where the allegation was
      someone had made a false statement in a loan that was funded, paid as
      expected, repaid in full, and there was no complaint from the lender?
      Any cases like that?

      Terri Moore: Specifically, those limited facts? No.

Thus, the then-first assistant to Watkins since January 1, 2007 stated that she

is not aware of any similar cases being prosecuted.




                                         17
      Finally, on pages 126-127 and 129 of volume 4, the following exchange

took place between Appellee’s counsel and Donna Strittmatter, the supervisor

of the unit that prosecutes mortgage fraud cases:

      Appellee’s counsel: Okay. Are you aware of a single instance ever that
      the Dallas County DA’s office has indicted a mortgage fraud case
      where the loan was fully collateralized, paid as expected, and repaid in
      full and there was no complaint from the bank, but it was indicted any
      way?

      Donna Strittmatter: I am not aware because I have not been the
      mortgage fraud prosecutor.

      Appellee’s counsel: Well, you’ve been the supervisor of the unit that
      prosecutes mortgage frauds.

      Donna Strittmatter: I’m certainly aware of us prosecuting instances
      where the person did nothing but submit the false loan application,
      didn’t even get the money, and we indicted and prosecuted those
      individuals.

      Appellee’s counsel: I understand, ma’am. That -- and you’re talking
      about an effort somebody was making to obtain money and, of course,
      we don’t know whether they would have defaulted or stolen the money.
      I’m asking about situations, specifically, in which -- of -- that you’re
      aware, ever in the history of this office, in which someone’s been
      prosecuted for mortgage fraud where the loan was collateralized, was
      repaid as expected, repaid in full, and the bank filed no complaint.

      Donna Strittmatter: I don’t know, but that doesn’t mean it hasn’t
      happened.

      ....

      Appellee’s counsel: All right. And you’re not aware, as you sit here,
      of any case HUD’s ever referred to your office in which the loan was
      collateralized, paid as expected, HUD didn’t lose any money?


                                         18
      Donna Strittmatter: They may have. I can’t say that that is not true.

      Appellee’s counsel: Just asking if you’re aware of any.

      Donna Strittmatter: I can’t give you a defendant’s name off the top of
      my head.

The most damning aspect about Strittmatter’s testimony was that like Martin and

Moore, Strittmatter was fully aware of what the nature of this hearing was and yet

Strittmatter could not manage to name a single other person who was prosecuted

under remotely similar facts. The reasons for this are clear: (1) there never was

another prosecution under remotely similar facts (selective prosecution); and

(2) Watkins pushed through the indictments against Appellee solely as a favor

for his friend and fellow Democratic Party operative, Blue, who “just

happened” to be involved in a fee dispute against Appellee which Blue sought

over $50 million for about six months of work (invidious reason). Thus, no

evidence was presented by the State showing that: (1) a single other person with

facts similar to Appellee’s case was prosecuted; or (2) the reasons for the prosecution

were proper. In fact, Appellee established just the opposite: that no other person had

ever been prosecuted under similar facts, and the reasons for the prosecution were

indeed invidious.

      The State also claims that Appellee provided “no evidence” to support the fact

that prosecutor Deborah Smith communicated her “concerns” about the charges.

This allegation goes to the State’s desire for this Court to hold that a movant in a
                                          19
selective or invidious prosecution claim must prove up the allegation by way of

evidence attached to the motion to dismiss before the movant is entitled to a hearing.

However, as detailed in the Appellee’s Brief, this is not the correct standard. For

instance, Appellee proffered evidence that on October 12, 2012, Appellee’s counsel

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

180-Supp-Aug02, 92). During this meeting, Appellee proffered to the trial court that

Smith apologized for how the State handled the cases against Appellee and his wife,

indicated that she was conducting “due diligence” interviews of witnesses, and stated

that she would recommend dismissing certain or all of the charges against both

Appellee and his wife. Id. (the email from Smith to Appellee’s counsel indicates that

Smith was not personally authorized to dismiss the cases, but that she would submit

her recommendation as to two of the four pending cases, CR1, 487). Later that same

day, the District Attorney’s Office moved to dismiss all charges against Erin Hill

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




                                           20
   3. The State presents no valid counter to Appellee’s arguments that: (1)
      Appellee proffered evidence to the Motion to Dismiss alleging
      prosecutorial misconduct; (2) the trial court in its discretion determined
      that the proffered evidence was sufficient to entitle Appellee to a hearing;
      and (3) “some evidence” means evidence that constitutes a colorable claim
      of a constitutional violation that may prove the elements of a presumed
      selective prosecution claim, and not evidence that proves the
      constitutional violation itself: (1) beyond a reasonable doubt, (2) by clear
      and convincing evidence, or (3) by a preponderance of the evidence.
      The issues in this case are whether: (1) Appellee proffered evidence to the

Motion to Dismiss alleging prosecutorial misconduct; (2) the trial court in its

discretion determined that the proffered evidence was sufficient to entitle Appellee

to a hearing; and (3) “some evidence” means evidence that constitutes a colorable

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

selective prosecution claim. The State snipes at certain parts of Appellee’s

arguments as though it is possible for them to be argued in a vacuum, such as the

State’s contention that the “only evidence” presented regarding the selective nature

of the prosecution is that Martin did not admit during her testimony that Appellee’s

prosecution was “unprecedented,” but instead was unprecedented as it “related only

to her caseload, when in fact the first assistant district attorney (Moore) and Martin’s

direct supervisor (Strittmatter) also testified also that they are not aware of any other

instance when a case similar to Appellee’s was prosecuted. However, none of the

State’s arguments sufficiently counter the conclusion that Appellee met the burden

set forth by the Supreme Court in United States v. Armstrong, 517 U.S. 456, 463


                                           21
(1996). Appellee proffered with the Motion to Dismiss not just “some evidence,”

but rather “exceptionally clear evidence” proving that Watkins: (1) singled Appellee

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

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

manner. See also Green v. State, 934 S.W.2d 92, 103 (Tex. Crim. App. 1996);

Matney v. State, 99 S.W.3d 626, 628 (Tex. App. Houston [1st Dist.] 2002); Gawlik

v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); U.S. Const. Amend. V; U.S.

Const. Amend. XIV.

      The State would like this Court to believe that a prosecutor’s decision to

prosecute amounts to a totally unfettered discretion to prosecute alleged violations

of criminal statutes, but this is simply not the case. Wayte v. United States, 470 U.S.

598, 608 (1985). If a person presents “some evidence” to a trial court that tends to

show a colorable claim of a discriminatory or other improper purpose for a

prosecution, the trial court is well within its rights to conduct a hearing on the

matter. Armstrong, 517 U.S. at 465.

      In Armstrong, the Supreme Court does not clearly define what constitutes

“some evidence.” However, it appears that the Supreme Court holds that “some

evidence” means evidence that provides a colorable basis to show that the defendant

can prove the two elements of a selective prosecution claim. Those elements are: (1)

the government singled out the defendant for prosecution and has not proceeded


                                          22
against others similarly situated based on the type of conduct for which the

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

and not for a proper purpose.

      As Appellee details in the Appellee’s Brief, a “colorable claim” is one that is

“plausible, credible, or conceivable,” or one that is “legitimate and that may

reasonably be asserted, given the facts presented and the current law.” Concise

Oxford American Thesaurus, 149 (2006); Black’s Law Dictionary, 240 (7th ed.

1999). “Exceptionally clear evidence” is evidence that is “unusually obvious, plain,

evident, and intelligible.” Concise Oxford American Thesaurus, 138, 292 (2006).

Another legitimate definition of a “colorable claim” is where the defendant presents

“some evidence” tending to show a disparate treatment and discriminatory intent

that entails a “nonfrivolous showing based on more than conclusory allegations.”

United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir. 1995) (emphasis supplied).

      Contrary to the State’s contention that Appellee did not identify specific

portions of the proffered evidence to show that Appellee proffered “some evidence”

that provides a colorable basis to show that the defendant can prove the two elements

of a selective prosecution claim, Appellee attached and identified the following to

the Motion to Dismiss: (1) Hill Jr.’s February 2010 complaint to the Dallas District

Attorney’s office, (2) pleadings from other proceedings and excerpts from Watkins’s

campaign finance reports, (3) email exchanges among attorneys in the fee litigation


                                         23
between Blue and Appellee, (4) Blue’s telephone records, (5) a log of text messages

between Blue, Watkins, and his assistant, (6) announcements about the SMU

scholarship funded by Blue and about Watkins’s hiring of Blue to help in unrelated

litigation, (7) a printout of a 2007 Texas Lawyer article about the district attorney’s

office’s grand jury policy, (8) Smith’s email about her reassignment, (9) excerpts

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

testimony from Blue in the litigation between Blue and Appellee in which Blue

testified to receiving two phone calls from Watkins about the indictments of the

Appellee and his wife, and (11) deposition testimony from Malouf (Blue’s co-

counsel in the litigation between Blue and Appellee), who testified to overhearing

one of those conversations. See CR-180, 68-488.

      Therefore, it is clear that: (1) Appellee proffered evidence to the Motion to

Dismiss alleging prosecutorial misconduct; (2) the trial court in its discretion

determined that the proffered evidence was sufficient to entitle Appellee to a

hearing; and (3) “some evidence” means evidence that constitutes a colorable claim

of a constitutional violation that may prove the elements of a presumed selective

prosecution claim, and not evidence that proves the constitutional violation itself:

(1) beyond a reasonable doubt, (2) by clear and convincing evidence, or (3) by a

preponderance of the evidence. The State presents no valid counterarguments

against these conclusions or facts rebutting the facts cited by Appellee.


                                          24
   4. Clarification of the Fifth Circuit standard, which is indeed the same
      standard (“colorable claim”) that Appellee argues this Court should
      adopt.
      In the Appellee’s Brief, Appellee noted that the Fifth Circuit in United States

v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978) held that to obtain a discovery

hearing on a claim of prosecutorial misconduct, a defendant must first make a prima

facie showing that the government acted inappropriately. Appellee disagreed with

the standard in Johnson, but still argued that the analysis for his case does not change

because he attached “some evidence” showing a constitutional violation.

      However, in United States v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995), the

Fifth Circuit in fact held that in order to obtain discovery and a hearing, a movant

must make a colorable claim for both elements of selective prosecution. In Cooks,

the court held that the defendant, a black man, failed to establish that the government

prosecuted him in order to subject him to high penalties for cocaine-base

offenses. Id. at 105. The defendant argued that he was entitled to a hearing by

attaching a report stating that minority arrests for drug offenses were now ten times

greater than in past years and statistics detailing that the majority of those arrested

for cocaine base offenses are black. Id. The Fifth Circuit held that this evidence

failed to give rise to a “colorable claim” that he was selectively prosecuted.




                                          25
   5. Not only have nearly all of the federal circuit court of appeals adopted
      standards substantially similar to the standard that Appellee argues this
      Court should adopt, states have done so as well: that so long as a
      defendant attaches a proffer of evidence to a motion to dismiss due to
      prosecutorial misconduct that the trial court in its discretion determines
      to present a colorable claim of a constitutional violation, the defendant
      has attached “some evidence,” and the trial court has discretion to
      conduct a hearing on the motion to dismiss.
      The State objects to Appellee’s arguments that nearly all the federal circuit

court of appeals adopted standards substantially similar to the standard that Appellee

asks this Court to adopt. However, many states have also adopted similar standards:

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

to prosecutorial misconduct that the trial court in its discretion determines to present

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

evidence,” and the trial court has discretion to conduct a hearing on the motion to

dismiss:

      Florida: in Richardson v. State, 831 So. 2d 799 (Fla. App. 2002), the

defendant alleged that he was selectively prosecuted for drug-trafficking under the

Florida RICO statute because he was selectively targeted for a wiretap as a result of

his race. As evidence in support of a hearing, the defendant attached documents

supporting the following contentions: (1) all five cases involving drug wiretaps that

were being defended by the public defender involved minority defendants; (2) over

the past three years, the public defender had not represented a white person in a drug

wiretap case; (3) reports issued by the state attorney's office did not reflect any white

                                           26
drug wiretap target since 1992; (4) a printout from the public defender for the last

ten years reflected that of the 1,848 drug trafficking cases handled by the public

defender, only 404 were white and did not involve wiretaps; and (5) the police were

not able to identify any cases that involved an initial wiretap of a nonminority target.

      The court denied the motion for a hearing and requested discovery because it

is not enough for a defendant to submit statistical evidence that a prosecution tends

to affect a particular group; rather, the statistics must address “the critical issue of

whether that particular group was treated differently than a similarly-situated

group.” Further, “a trial court has broad discretion in ruling on discovery matters.”

As a result, the defendant failed to establish a “colorable basis” for a claim of

selective prosecution sufficient to entitle him to the requested discovery. Id. at 802

(emphasis supplied).

      Massachusetts: in Commonwealth v. Washington W., 928 N.E.2d 908 (Mass.

2010), a fifteen-year-old boy with Asperger's Syndrome was accused of having

sexual encounters with a thirteen-year-old boy also with Asperger's Syndrome. Id.

at 910. Although the court affirmed the prosecutor’s “wide discretion” in deciding

whether to press charges, presuming the prosecutor’s decision was made in good

faith, the court also affirmed a limited version of a discovery order granted to the

child to pursue a selective prosecution claim based on a minimal (colorable) showing

that the child may have been prosecuted only because of the same-sex nature of the


                                           27
case. When the government ultimately failed to produce the discovery even under a

protective order and even though the government conceded that the discovery

contained no any personal or sensitive information, the trial court found that the

government’s “egregious” conduct “gives rise to a determination of presumptive

prejudice and warrants dismissal.” The Supreme Court of Massachusetts affirmed

this ruling in Commonwealth v. Washington W., 967 N.E.2d 615 (Mass. 2012).

       Ohio: In State v. LaMar, 767 N.E.2d 166 (Ohio 2002), the court ruled that the

defendant failed to present credible evidence showing the possibility of selective

prosecution that would entitle him to a hearing. Although the court did not use the

phrase “colorable,” the implication from LaMar clearly is that alleging only that he

was the only person accused of murder during a prison riot who was prosecuted

under the death penalty statute because he is black does not amount to credible

evidence, especially where at least three of the other four defendants are also black

and were not prosecuted under the death penalty statute. Id. at 187-188. The court

also points out that two years earlier, it affirmed the convictions of a white inmate

who received the death penalty for murders committed during the riot. Id. at 188-

189.

       Washington: in State v. Staten, 1998 Wash. App. LEXIS 869 (Wash. Ct.

App. 1998) (unpublished opinion), although the court did not use the phrase

“colorable claim,” it did hold that a defendant seeking discovery on a selective-


                                         28
prosecution claim must make an “initial credible showing” of a constitutional

violation by attaching “some evidence tending to show the elements of a selective

prosecution claim.” Here, the defendant attached only “anecdotal evidence” showing

that while blacks make up only five percent of the population of the county, they

account for 77 percent of the defendants facing “persistent offender allegations”

(three-strikes law). Id. at *8-9. Such statistical evidence of the disproportionate

effect of a law on a particular group of individuals, without more, is not sufficient,

and there must be some evidence that similarly situated defendants of other races

could have been prosecuted for a third strike but were not. Id. at *9-10.

      New Jersey: in State v. Ballard, 752 A.2d 735 (N.J. Super. 2000), in citing

State v. Smith, 703 A.2d 954 (N.J. Super. 1997) and Armstrong, the New Jersey

Appellate Division held that discovery relating to a defendant's claim

of selective enforcement “is permitted only when there is a colorable claim” of a

constitutional violation such as selective enforcement. Id. at 738. The court held that

the defendant made the “threshold showing” of a “colorable claim” of a

constitutional violation. The court first noted that “discovery is appropriate if it will

lead to relevant and material information. Id. at 739. The court found that the

defendant (nonwhite) attached sufficient evidence to make a threshold showing of a

colorable claim that police officers were racially profiling in enforcing motor vehicle




                                           29
laws because the evidence showed that in the area where the stops occurred, blacks

and Hispanics were several times more likely to be stopped than Caucasians.

      Appellee has shown through the holdings of five other states agree with his

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

dismiss due to prosecutorial misconduct that the trial court in its discretion

determines to present a colorable claim of a constitutional violation, the defendant

has attached “some evidence,” and the trial court has discretion to conduct a hearing

on the motion to dismiss.


IV. Conclusion and Prayer

      For the reasons stated in the Opening Brief and this Rely Brief, Appellee

respectfully prays that this Court reverse the judgment and opinion of the Court of

Appeals, find that Appellee provided “some evidence” constituting a colorable claim

that allowed the trial court to exercise its discretion to order a hearing, and affirm

the trial court’s Order Granting Motion to Dismiss.

                                       Respectfully submitted,

                                       George R. Milner III
                                       Milner Finn Price
                                       2828 N. Harwood St. Suite 1950
                                       Dallas, Texas 75201
                                       Phone: 214-651-1121
                                       Fax: 214-953-1366
                                       ItsRainingII@aol.com
                                       Texas Bar No. 00784611


                                         30
                                     Leonard Thomas (Butch) Bradt
                                     14090 Southwest Freeway Suite 300
                                     Sugar Land, TX 77478
                                     Phone: 281-201-0700
                                     Fax: 281-201-1202
                                     ltbradt@flash.net
                                     Texas Bar No. 02841600
                                     Attorney for Appellee

                                     Michael Mowla
                                     P.O. Box 868
                                     Cedar Hill, Texas 75106
                                     Phone: 972-795-2401
                                     Fax: 972-692-6636
                                     michael@mowlalaw.com
                                     Texas Bar No. 24048680
                                     Attorneys for Appellee




                                     /s/ Michael Mowla
                                     By: Michael Mowla


V. Certificate of Service

      I certify that on November 1, 2015, a true and correct copy of this document
was served on Chad Baruch by email to chad@jtlaw.com, on Lisa McMinn, the State
Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and on John
Messinger,      Assistant   State   Prosecuting     Attorney,    by     email   to
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule
App. Proc. 68.11 (2015).



                                     /s/ Michael Mowla
                                     By: Michael Mowla



                                       31
VI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

       This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 7,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 5,898 words in the document except in the following sections:
caption, identity of parties and counsel, table of contents, table of authorities,
statement of the case and jurisdiction, statement regarding oral argument, statement
of issues or questions presented, signature, proof of service, certification, certificate
of compliance, and appendix. This document also complies with the typeface
requirements because it has been prepared in a proportionally-spaced typeface using
14-point font. See Tex. Rule App. Proc. 9.4 (2015).




                                         /s/ Michael Mowla
                                         By: Michael Mowla




                                           32
