                                                                                       PD-0019-15
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                    Transmitted 2/23/2015 3:53:42 PM
                                                                      Accepted 2/26/2015 2:41:49 PM
                                                                                        ABEL ACOSTA
        COURT OF CRIMINAL APPEALS                                                               CLERK



                                 PD-0019-15
                                 PD-0020-15
February 26, 2015                PD-0021-15
                                 PD-0022-15

                  State of Texas, Appellant,
                              v.
                 Albert G. Hill, III, Appellee.

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

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

           Petition for Discretionary Review
Michael Mowla             L.T. (Butch) Bradt          George R. Milner III
445 E. FM 1382 #3-718     14015 S.W. Freeway Ste. 4   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

                    ORAL ARGUMENT REQUESTED
I. Identity of Parties, Counsel, and Judges

Albert G. Hill, III, Appellee

Michael Mowla, attorney for Appellee at trial, on appeal, and on discretionary
review (lead), 445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-
2401, fax 972-692-6636, email michael@mowlalaw.com.

George R. Milner III, attorney for Appellee at trial, on appeal, and on
discretionary review, 2828 N. Harwood St. Suite 1950, Dallas, Texas 75201,
phone (214) 651-1121, fax (214) 953-1366, email ItsRainingII@aol.com.

Leonard Thomas (Butch) Bradt, attorney for Appellee on discretionary
review, 14015 Southwest Freeway Suite 4, Sugar Land, TX 77478, phone 281-
201-0700, fax 281-201-1202, email ltbradt@flash.net.

Marshall A. Camp, attorney for Appellee at trial and appeal pro hac vice,
1800 Avenue of the Stars Suite 900, Los Angeles, California 90067, phone 310-
203-1010, fax 310-203-7199, email mcamp@irell.com.

John C. Hueston, attorney for Appellee at trial and appeal pro hac vice, 1800
Avenue of the Stars Suite 900, Los Angeles, California 90067, phone 310-203-
1010, fax 310-203-7199, email jhueston@irell.com.

Alison L. Plessman, attorney for Appellee at trial and appeal pro hac vice,
1800 Avenue of the Stars Suite 900, Los Angeles, California 90067, phone 310-
203-1010, fax 310-203-7199, email aplessman@irell.com.

State of Texas, Appellant

Susan Hawk, Dallas County District Attorney, attorney for State of Texas, 133
N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-653-3600, fax
214-653-3643.

Lori Ordiway, Dallas County Assistant District Attorney, attorney for State of
Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-
653-3600, fax 214-653-3643, email lori.ordiway@dallascounty.org.




                                 Page 2 of 37
Michael Casillas, Dallas County Assistant District Attorney, attorney for State
of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207, phone (214) 653-
3600, fax (214) 653-3643, email michael.casillas@dallascounty.org

Lisa Smith, Dallas County Assistant District Attorney, attorney for State of
Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207, phone (214) 653-
3600, fax (214) 653-3643, email lisa.smith@dallascounty.org

Craig Watkins, (former) Dallas County District Attorney, attorney for State
of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207, phone (214) 653-
3600, fax (214) 653-3643.

Charles “Chad” Baruch, (former) Special Prosecutor, attorney for State of
Texas, 3201 Main Street, Rowlett, Texas 75088, phone (972) 412-7192, fax (972)
412-4028, email baruchesq@aol.com.

Russell Wilson, (former) Dallas County Assistant District Attorney, attorney
for State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399,
phone (214) 653-3600, fax (214) 653-3643.

Heath Harris, (former) Dallas County Assistant District Attorney, attorney
for State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399,
phone (214) 653-3600, fax (214) 653-3643.

Hon. Judge Lena Levario, Presiding Judge of the 204th Judicial District
Court (at the time of trial), 133 N. Riverfront Blvd., 7th Floor, Dallas, Texas
75207-4399, phone (214) 653-5832, fax (214) 653-5997.

Hon. Judge Tammy Kemp, Presiding Judge of the 204th Judicial District
Court (present), 133 N. Riverfront Blvd., 7th Floor, Dallas, Texas 75207-4399,
phone (214) 653-5832, fax (214) 653-5997.

Justices David Bridges (Dissenting), Michael O’Neill, and Ada Brown, Fifth
Court of Appeals, 600 Commerce, Suite 200, Dallas, Texas 75202, phone 214-712-
3400.




                                  Page 3 of 37
II. Table of Contents

I.        Identity of Parties, Counsel, and Judges ..........................................................2 
II.       Table of Contents .............................................................................................4 
III.      Table of Authorities .........................................................................................6 
IV.       Appendix Index ...............................................................................................8 
V.        Statement Regarding Oral Argument ..............................................................9 
VI.       Statement of the Case and Procedural History ..............................................10 
VII.  Ground for Review ........................................................................................18 
VIII.  Argument .......................................................................................................19 
       1.  Ground for Review: To establish a prima facie case of selective
           prosecution in violation of the Fifth and Fourteenth
           Amendments, and to obtain a hearing under the “presumption
           of prosecutorial vindictiveness” method, a defendant must
           provide “some evidence” that shows: (1) the government
           singled out the defendant for prosecution and has not proceeded
           against others similarly situated based on the type of conduct
           for which the defendant is charged; and (2) the government’s
           discriminatory selection is invidious. Once the defendant makes
           this showing, the burden shifts to the State to justify the
           discriminatory treatment.  
       Appellee asks this Court to clarify what constitutes “some
         evidence” and find that so long as a defendant attaches a proffer
         of evidence to a motion to dismiss due to prosecutorial
         misconduct that the trial court in its discretion determines to be
         a colorable claim of a constitutional violation, the defendant has
         attached “some evidence,” and a trial court should be permitted
         to conduct a hearing on the motion to dismiss.  
       Appellee not only attached “some evidence” showing a
         constitutional violation, but in fact attached “exceptionally clear
         evidence.” As a result, the Court of Appeals erred when it: (1)
         sustained the State’s second issue and concluded that Appellee
         “did not make the proper showing sufficient to establish a
         prima facie case...” of the fact that the former elected district
         attorney of Dallas County engaged in prosecutorial misconduct
         by allowing himself to be corruptly influenced by Blue in return

                                                     Page 4 of 37
       for indicting Appellee; (2) found that the trial court erred in
       conducting a hearing on Appellee’s motion to dismiss based
       upon prosecutorial misconduct; (3) vacated the trial court’s
       Order Granting Motion to Dismiss; and (4) remanded the case
       to the trial court to reinstate the indictments against Appellee. ....................19 
       i.       Appellee properly raised a claim of selective prosecution .................19 
       ii.      The majority opinion’s characterization of the evidence
                attached to the Motion to Dismiss is inaccurate because
                nearly all of the evidence proffered by Appellee and
                attached to the Motion to Dismiss is admissible. ................................21 
       iii.     In order to be entitled to a hearing, Appellee had to only
                present “some evidence” that would show he can make a
                “colorable claim” of a constitutional violation, and
                Appellee did so. ...................................................................................23 
       iv.      A “proffer of evidence” means to present “some
                evidence” that establishes a “colorable claim” of
                selective prosecution. It does not mean that a defendant
                is required to prove selective prosecution based on any
                standard through the filing of a motion to dismiss alone. ...................29 
       v.       As the dissent correctly points out, no appellate court in
                Texas has ever ruled that a trial court erred in conducting
                a hearing on a defendant’s motion to dismiss charges on
                the basis they violated his constitutional rights. .................................32 
       vi.      Conclusion ...........................................................................................33 
IX.    Conclusion and Prayer ...................................................................................35 
X.     Certificate of Service .....................................................................................36 
XI.    Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................37 




                                                  Page 5 of 37
III. Table of Authorities

Cases 
Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ........................................31
County v. State, 812 S.W.2d 303 (Tex. Crim. App. 1989) ......................................25
Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988) .....................................25
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979) ............................................25
Fox v. State, 418 S.W.3d 365 (Tex. App. Texarkana 2012) ....................................23
Franks v. Delaware, 438 U.S. 154 (1978) ...............................................................30
Galvan v. State, 988 S.W.2d 291 (Tex. App. Texarkana 1999) ..............................33
Garcia v. State, 172 S.W.3d 270 (Tex. App. El Paso 2005) ...................... 23, 25, 33
Gawlik v. State, 608 S.W.2d 671 (Tex. Crim. App. 1980) ......................................20
Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)..........................................20
Gregg v. Georgia, 428 U.S. 153 (1976) ..................................................................25
Harris v. State, 227 S.W.3d 83 (Tex. Crim. App. 2007) .........................................31
Hinojosa v. State, 4 S.W.3d 240 (Tex. Crim. App. 1999) .......................................30
Matney v. State, 99 S.W.3d 626 (Tex. App. Houston [1st Dist.] 2002) ..................20
Neal v. State, 150 S.W.3d 169 (Tex. Code Crim. App. 2004).................................20
Ramsey v. State, 579 S.W.2d 920 (Tex. Crim. App. 1979) .....................................31
Rodriguez v. State, 283 S.W.3d 465 (Tex. App. San Antonio 2009) ......................33
State v. Dinur, 383 S.W.3d 695 (Tex. App. Houston [14th Dist.] 2012,
       no pet.) ...........................................................................................................33
State v. Hill, 05-13-00421-CR-180, 05-13-00423-CR-180, 05-13-
      00424-CR-180, and 05-13-00425-CR-180, 2014 Tex. App.
      LEXIS 13835 (Tex. App. Dallas, December 29, 2014) (Bridges,
      J. dissenting) (unpublished opinion)...................................................... passim
United States v. Armstrong, 517 U.S. 456 (1996) ...................................... 23, 24, 30
United States v. Goodwin, 457 U.S. 368 (1982) ......................................................20
Statutes 
Tex. Pen. Code § 32.32 (2009) ................................................................................13
Tex. Pen. Code § 37.01 (2015) ................................................................................23

                                                      Page 6 of 37
Other Authorities 
Black’s Law Dictionary (7th ed. 1999) ............................................................ 25, 30
Concise Oxford American Thesaurus (2006) ..........................................................25
Rules 
Tex. Rule App. Proc. 66.3 (2015) ............................................................................35
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................36
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 9, 18
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................37
Tex. Rule App. Proc. 9.5 (2015) ..............................................................................36
Tex. Rule Evid. 801 (2013)......................................................................................23
Tex. Rule Evid. 803 (2013)......................................................................................23
Tex. Rule Evid. 804 (2013)......................................................................................23
Constitutional Provisions 
U.S. Const. Amend. V..............................................................................................20
U.S. Const. Amend. XIV .........................................................................................20




                                                  Page 7 of 37
IV. Appendix Index

Appendix 1: State v. Hill, 05-13-00421-CR-180, 05-13-00423-CR-180, 05-13-
00424-CR-180, and 05-13-00425-CR-180, 2014 Tex. App. LEXIS 13835 (Tex.
App. Dallas, December 29, 2014) (Bridges, J. dissenting) (unpublished opinion)




                                 Page 8 of 37
V. Statement Regarding Oral Argument

      Appellee requests oral argument. See Tex. Rule App. Proc. 68.4(c) (2015).

As provided in detail below, the issues presented in this petition may be issues of

first impression. As a result, Appellee believes that this Court’s decisional process

will be significantly aided by oral argument.




                                     Page 9 of 37
To The Honorable Judges of the Court of Criminal Appeals:

      Appellee Albert G. Hill, III respectfully submits this petition for

discretionary review:


VI. Statement of the Case and Procedural History

      This petition for discretionary review requests that this Court review the

judgment and opinion of the Fifth Court of Appeals in State v. Hill, 05-13-00421-

CR-180, 05-13-00423-CR-180, 05-13-00424-CR-180, and 05-13-00425-CR-180,

2014 Tex. App. LEXIS 13835 (Tex. App. Dallas, December 29, 2014) (Bridges, J.

dissenting) (unpublished opinion). (See Appendix 1). The issues presented in this

petition may be issues of first impression. Appellee is not aware of any other case

where a defendant proffered exceptionally clear evidence showing that in exchange

for indicting the defendant, the elected district attorney was improperly influenced

by a person who was at the time involved in civil litigation with the defendant in

another case, which caused a Texas district judge to dismiss the indictments due to

obvious prosecutorial misconduct. The dismissal was entered after a hearing that

the trial court had discretion to order. But, the Court of Appeals reversed the

district judge’s ruling because the defendant allegedly did not provide enough

evidence to even warrant a hearing.

      Under the Equal Protection and Due Process Clauses of the Fifth and

Fourteenth Amendments, to establish a prima facie case of selective prosecution

                                      Page 10 of 37
and to obtain a hearing under the “presumption of prosecutorial vindictiveness”

method, a defendant must provide “some evidence” that shows: (1) the government

singled out the defendant for prosecution and has not proceeded against others

similarly situated based on the type of conduct for which the defendant is charged;

and (2) the government’s discriminatory selection is invidious. Once the defendant

makes this showing, the burden shifts to the State to justify the discriminatory

treatment

      “Some evidence” simply means evidence that constitutes a colorable claim

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

selective prosecution claim. “Some evidence” does not mean that before a hearing,

the defendant must prove the selective prosecution claim beyond a reasonable

doubt, by clear and convincing evidence, or even by a preponderance of the

evidence.

      As a result, Appellee asks this Court to clarify what constitutes “some

evidence” and find that so long as a defendant attaches a proffer of evidence to a

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

discretion determines to be a colorable claim of a constitutional violation, the

defendant has attached “some evidence,” and a trial court should be permitted to

conduct a hearing on the motion to dismiss.




                                   Page 11 of 37
       Appellee met the burden set forth by the Supreme Court of the United States

because he proffered with the Motion to Dismiss not just “some evidence,” but

rather “exceptionally clear evidence” proving that then-Dallas County District

Attorney Craig Watkins (“Watkins”)1: (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, so Appellee

was entitled to an evidentiary hearing. Yet, in a 2-1 decision, the Court of Appeals

ruled against Appellee, finding that Appellee should have never received a hearing.

If the evidence Appellee attached to his Motion to Dismiss as a proffer does not

constitute “some evidence” that establishes a prima facie case of selective

prosecution, then absent an admission by a prosecutor that he or she: (1) singled a

defendant out for prosecution and did not proceed against others similarly situated

based on the type of conduct for which the defendant was charged; and (2) acted in

an invidious manner, there is no circumstance that would allow a defendant to

obtain a hearing on a selective prosecution claim based upon a claim of the

“presumption of prosecutorial vindictiveness,” which the State must rebut or face

dismissal of the charges (such as was alleged in Appellee’s case).


1
 On November 4, 2014, Watkins lost his reelection bid to Judge Susan Hawk. Watkins was the
only democrat to lose a county-wide election in Dallas County. See Dallas County DA-elect
Hawk zeroed in on distrust of Watkins, Dallas Morning News, published November 5, 2014,
http://www.dallasnews.com/news/metro/20141105-dallas-county-da-elect-hawk-zeroed-in-on-
distrust-of-watkins.ece, last accessed on February 18, 2015.


                                       Page 12 of 37
       The procedural history of this case is as follows: on March 7, 2013, the

204th District Court dismissed with prejudice (“Order Granting Motion to

Dismiss”) four indictments against Appellee under cause numbers F11-00180,

F11-00182, F11-00183, and F11-00191. (CR-180, 1100; CR-182, 978; CR-183,

977; CR-191, 894).2 Appellee had been indicted on four separate counts of False

Statement to Obtain Credit under Texas Penal Code § 32.32. See Tex. Pen. Code

§ 32.32(b) (2009). The crux of the indictments was that in order to obtain a home

equity loan, Appellee allegedly made false statements to a bank.

       Specifically, the indictments provide that on or about May 14, 2009, with the

intent of obtaining a loan of money, the aggregate value of which was $200,000.00

or more, Appellee made certain materially false and misleading written statements

to OmniAmerican Bank by: (1) claiming that he and his wife, Erin Hill, “were only

owners of real property located at 4433 Bordeaux, Highland Park, Dallas County,

Texas...” (F11-00180/05-13-00421-CR) (CR-180, 6, 427); (2) claiming that his

gross monthly income was $54,341.00 (F11-00182/05-13-00423-CR) (CR-180,

428); (3) executing certain documents “by deception” by creating and executing

the documents and by creating and confirming by words and conduct false

impressions of facts that were “likely to affect the judgment of OmniAmerican
2
 The Clerk’s Record (three unsealed and two sealed volumes, three supplemental volumes, and a
supplemental sealed volume) is cited as “CR” followed by the last three digits of the cause
number for the three volumes (or “-Supp-Aug02”), followed by the page number. The Reporter’s
Record (five volumes) is cited as “RR” following by the volume number and page number, or
the exhibit number of the exhibits volume, RR5.
                                       Page 13 of 37
Bank” that the defendant did not believe to be true (F11-00183/05-13-00423-CR)

(CR-180, 429); and (4) that his Inwood National Bank account contained

$102,174.00 (F11-00191/05-13-00424-CR) (CR-180, 430).

      After conducting his own investigation and uncovering an avalanche of

compelling circumstantial evidence that Lisa Blue, a Democratic Party operative

and attorney who at the time was involved in civil litigation against Appellee,

corruptly influenced Watkins, who in turn authorized obtaining the four

indictments against Appellee, Appellee filed a Motion to Quash and Dismiss the

Indictment Due to Prosecutorial Misconduct (“Motion to Dismiss”). (CR-180, 31-

488). The Motion to Dismiss alleged that Appellee’s constitutional rights to due

process and equal protection were violated because due to Blue’s bribing and

influence of Watkins, Appellee had been: (1) selectively prosecuted; (2)

vindictively prosecuted; and (3) deprived of his right to a disinterested prosecutor.

(CR-180, 32-67). At the time that the indictments were returned against Appellee,

Blue and Appellee were embroiled in litigation (fee dispute) in the United States

District Court, Northern District of Texas. (RR2, 20-21; CR-180, 32-34).

      Based upon the evidenced attached to the Motion to Dismiss proffered by

Appellee, on February 14, 2013, the trial court found that Appellee was entitled to

a hearing.   (RR2, 28).     The trial court required Appellee to first seek his

information from Blue. (RR2, 28-30). Appellee was permitted to call Watkins to


                                    Page 14 of 37
the stand only after Blue invoked the Fifth Amendment, an invocation that

prevented Appellee from obtaining the information by other means. (RR2, 47-49).

The trial court ordered an evidentiary hearing on the limited question of Blue’s

influence on Watkins’s decision to pursue indictments against Appellee, so the

scope of testimony from Watkins was limited to his conversations with Blue.

(RR2, 27-28, 47-49). A hearing did not take place on February 14, 2013, however,

because Watkins suddenly became “ill” and through counsel claimed that he could

not testify that day. (RR2, 54-64).

       Arguing that Appellee was not entitled to an evidentiary hearing, the State

sought mandamus relief and a stay of the hearing from the Fifth Court of Appeals

of Dallas and from this Court.3 The State’s petitions for writs of mandamus were

denied, and on March 7, 2013, the evidentiary hearing was held. (RR3).

       During the evidentiary hearing on March 7, 2013, evidence was presented,

and the State admitted that the home-equity loan was never in arrears, had been

fully repaid before the commencement of any criminal investigation, and thus the

indictments against Appellee are “unprecedented.” (RR4, 49, 126, 129, 155).

Watkins made a blanket assertion of privilege and work product protection and

refused to answer any questions. (RR4, 15-17). The trial court overruled Watkins’

3
 Appellee asks this Court to take judicial notice of the fact that on March 1, 2013, the State filed
for mandamus relief in the Fifth Court of Appeals in Cause Numbers 05-13-00298-CV, 05-13-
00299-CV, 05-13-00300-CV, 05-13-00301-CV, and 05-13-00302-CV; and again on March 6,
2013 in this Court in Cause Number WR-79,189-01.
                                           Page 15 of 37
objections, and further found that the State had waived privilege with respect to the

issues before the trial court. (RR4, 16-17).         After Watkins refused to testify,

Appellee examined Watkins’ assistant district attorneys. (RR4, 34-189). After the

testimony of the assistant district attorneys, the trial court gave Watkins another

opportunity to testify, and he again refused. (RR4, 195).

      The trial court found that Watkins’s refusal to testify denied Appellee “his

right to have a meaningful hearing” on his Motion to Dismiss. (RR4, 219). The

trial court also found that the State failed to rebut Appellee’s prima facie showing

of prosecutorial misconduct. (RR4, 219).        The trial court thus dismissed the

indictments with prejudice. (RR4, 219; CR-180, 1100).

      The State appealed the Order Granting Motion to Dismiss to the Court of

Appeals. The State raised four issues. The second issue raised by the State was

“Whether the trial court abused its discretion by granting Appellee an evidentiary

hearing—and then dismissing the indictments—where the facts he alleged failed to

establish any constitutional violation.”

      On December 29, 2014, the Court of Appeals: (1) sustained the State’s

second issue and concluded that Appellee “did not make the proper showing

sufficient to establish a prima facie case...” of the fact that the former elected

district attorney of Dallas County engaged in prosecutorial misconduct by allowing

himself to be corruptly influenced by Blue in return for indicting Appellee; (2)


                                     Page 16 of 37
found that the trial court erred in conducting a hearing on Appellee’s motion to

dismiss based upon prosecutorial misconduct; (3) vacated the trial court’s March 7,

2013 order granting Appellee’s motion to dismiss; and (4) remanded the case to the

trial court to reinstate the indictments against Appellee. Hill, Id. at *36-38. This

petition for discretionary review follows.




                                    Page 17 of 37
VII. Ground for Review

To establish a prima facie case of selective prosecution in violation of the Fifth and
Fourteenth Amendments, and to obtain a hearing under the “presumption of
prosecutorial vindictiveness” method, a defendant must provide “some evidence”
that shows: (1) the government singled out the defendant for prosecution and has
not proceeded against others similarly situated based on the type of conduct for
which the defendant is charged; and (2) the government’s discriminatory selection
is invidious. Once the defendant makes this showing, the burden shifts to the State
to justify the discriminatory treatment.

Appellee asks this Court to clarify what constitutes “some evidence” and find that
so long as a defendant attaches a proffer of evidence to a motion to dismiss due to
prosecutorial misconduct that the trial court in its discretion determines to be a
colorable claim of a constitutional violation, the defendant has attached “some
evidence,” and a trial court should be permitted to conduct a hearing on the motion
to dismiss.

Appellee not only attached “some evidence” showing a constitutional violation, but
in fact attached “exceptionally clear evidence.” As a result, the Court of Appeals
erred when it: (1) sustained the State’s second issue and concluded that Appellee
“did not make the proper showing sufficient to establish a prima facie case...” of
the fact that the former elected district attorney of Dallas County engaged in
prosecutorial misconduct by allowing himself to be corruptly influenced by Blue in
return for indicting Appellee; (2) found that the trial court erred in conducting a
hearing on Appellee’s motion to dismiss based upon prosecutorial misconduct; (3)
vacated the trial court’s Order Granting Motion to Dismiss; and (4) remanded the
case to the trial court to reinstate the indictments against Appellee.

      The relevant pages of the record are: Clerk’s Record (CR-180) p. 6, 31-480,

and the following pages of the Reporter’s Record: RR2, p. 28-30, 47-64; RR4, p.

15-17, 34-189, 195, 219. See Tex. Rule App. Proc. 68.4(f) (2015)




                                    Page 18 of 37
VIII. Argument

   1. Ground for Review: To establish a prima facie case of selective
      prosecution in violation of the Fifth and Fourteenth Amendments, and
      to obtain a hearing under the “presumption of prosecutorial
      vindictiveness” method, a defendant must provide “some evidence” that
      shows: (1) the government singled out the defendant for prosecution
      and has not proceeded against others similarly situated based on the
      type of conduct for which the defendant is charged; and (2) the
      government’s discriminatory selection is invidious. Once the defendant
      makes this showing, the burden shifts to the State to justify the
      discriminatory treatment.
      Appellee asks this Court to clarify what constitutes “some evidence”
      and find that so long as a defendant attaches a proffer of evidence to a
      motion to dismiss due to prosecutorial misconduct that the trial court in
      its discretion determines to be a colorable claim of a constitutional
      violation, the defendant has attached “some evidence,” and a trial court
      should be permitted to conduct a hearing on the motion to dismiss.
      Appellee not only attached “some evidence” showing a constitutional
      violation, but in fact attached “exceptionally clear evidence.” As a
      result, the Court of Appeals erred when it: (1) sustained the State’s
      second issue and concluded that Appellee “did not make the proper
      showing sufficient to establish a prima facie case...” of the fact that the
      former elected district attorney of Dallas County engaged in
      prosecutorial misconduct by allowing himself to be corruptly influenced
      by Blue in return for indicting Appellee; (2) found that the trial court
      erred in conducting a hearing on Appellee’s motion to dismiss based
      upon prosecutorial misconduct; (3) vacated the trial court’s Order
      Granting Motion to Dismiss; and (4) remanded the case to the trial court
      to reinstate the indictments against Appellee.

         i. Appellee properly raised a claim of selective prosecution

      A constitutional claim of prosecutorial vindictiveness or selective

prosecution may be established in two ways: (1) by presenting evidence of

circumstances that pose a “realistic likelihood” of misconduct that is sufficient to

raise a “presumption of prosecutorial vindictiveness,” which the State must rebut
                                    Page 19 of 37
or face dismissal of the charges (as alleged in Appellee’s case); or (2) by

presenting proof of “actual vindictiveness,” which means providing direct evidence

that the prosecutor’s charging decision is an unjustifiable penalty resulting solely

from the defendant’s exercise of a protected legal right. Neal v. State, 150 S.W.3d

169, 173 (Tex. Code Crim. App. 2004); United States v. Goodwin, 457 U.S. 368,

380-381 (1982). To make out a prima facie case in violation of the Fifth and

Fourteenth Amendments under the “presumption of prosecutorial vindictiveness”

method, a defendant must show: (1) that the defendant was singled out for

prosecution while others similarly situated and committing the same acts have not

been prosecuted; and (2) the State’s discriminatory selection of the defendant for

prosecution was invidious. 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.

      In the case before this Court, in the proffer of evidence attached to the

Motion to Dismiss, Appellee clearly showed: (1) Watkins singled Appellee out for

prosecution and has not proceeded against others similarly situated based on

allegations of mortgage fraud; and (2) Watkins clearly acted in an invidious

manner, as he caused the indictments of Appellee to occur because he allowed

himself to be corruptly influenced by Blue.


                                    Page 20 of 37
         ii. The majority opinion’s characterization of the evidence attached
             to the Motion to Dismiss is inaccurate because nearly all of the
             evidence proffered by Appellee and attached to the Motion to
             Dismiss is admissible.
      The facts are thoroughly presented in the dissenting opinion and accurately

reflect the proceedings below. See Hill, Id. at 40-51 (Bridges, J. dissenting).

However, even the dissent does not emphasize the fact that attached to the Motion

to Dismiss was not merely “some evidence,” but actually “exceptionally clear

evidence” that shows Appellee had a colorable claim 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.

      The majority opinion characterizes the evidence attached to the Motion to

Dismiss as “...forty-four exhibits...most of which were unauthenticated or not

otherwise identified by affidavit testimony.” Hill, Id. at *8-9. The exhibits, as the

majority explains, include Lynn’s February 2010 complaint to the Dallas District

Attorney’s office, pleadings from other proceedings, excerpts from Watkins’s

campaign finance reports, email exchanges among attorneys counsel in the

litigation between Blue and Appellee, Blue’s telephone records, a log of text

messages between Blue and Watkins and his assistant, announcements about the


                                    Page 21 of 37
SMU scholarship funded by Blue and about Watkins’s hiring of Blue to help in

unrelated litigation, a printout of a 2007 Texas Lawyer article about the office’s

grand jury policy, Smith’s email about her reassignment, excerpts from transcripts

in the litigation between Blue and Appellee, 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, his wife, and

Blue’s co-counsel in the in the litigation between Blue and Appellee, Malouf, who

testified to overhearing one of those conversations. Hill, Id. at *8-9; See CR-180,

68-488.

       The crux of the majority’s opinion is based on the characterization of the

evidence proffered by Appellee as somehow insufficient and not “some evidence”

that shows: (1) the government singled out the defendant for prosecution and has

not proceeded against others similarly situated based on the type of conduct for

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

is invidious. As a result, the majority believes that Appellee did not show a prima

facie case of prosecutorial misconduct, so Appellee was not entitled to a hearing at

the discretion of the trial court.

       The majority’s characterization of the evidence attached to the Motion to

Dismiss is inaccurate because nearly all of the evidence proffered by Appellee and

attached to the Motion to Dismiss is admissible as one of the following:


                                     Page 22 of 37
    Sworn testimony or former testimony under Tex. Rule Evid. 804(b)(1)
     (2013) (Transcripts or deposition testimony in the Blue-versus-Appellee
     litigation, which included phone records that were authenticated during the
     depositions, see CR-180, 193-408);

    Public records exception to the hearsay rule under Tex. Rule Evid. 803(8)
     (2013) (excerpts from Watkins’s campaign finance reports; and the February
     2010 complaint sent to the Dallas District Attorney’s office by Lynn, as a
     governmental record is “anything belonging to, received by, or kept
     by government for information,” See Tex. Pen. Code § 37.01(2)(A) (2015)
     and Fox v. State, 418 S.W.3d 365, 371 (Tex. App. Texarkana 2012) (a
     document received by the government is a “governmental record”);

    Admissions by the State under Tex. Rule Evid. 801(3) (2013) or statements
     against interest under Tex. Rule Evid. 804(b)(3) (2013) (Announcements
     about the SMU scholarship funded by Blue and about Watkins’s hiring of
     Blue to help in unrelated litigation, printout of a 2007 Texas Lawyer article
     about the office’s grand jury policy, Smith’s email about her reassignment,
     and log of text messages between Blue and Watkins and his assistant, email
     exchanges among attorneys in the litigation between Blue and Appellee);

Therefore, the evidence proffered by Appellee and attached to the Motion to

Dismiss would have been admissible during a hearing, so the evidence was more

than sufficient to make a prima facie case and warrant a hearing.


         iii. In order to be entitled to a hearing, Appellee had to only present
              “some evidence” that would show he can make a “colorable
              claim” of a constitutional violation, and Appellee did so.

      Next, “some evidence” simply means evidence that demonstrates the

defendant can make a colorable claim showing the existence of the discriminatory

effect element. United States v. Armstrong, 517 U.S. 456, 469 (1996); Garcia v.

State, 172 S.W.3d 270, 274 (Tex. App. El Paso 2005). In Armstrong, the Supreme


                                    Page 23 of 37
Court attempted to explain what it considers to constitute “some evidence” tending

to show the existence of the discriminatory effect element. Armstrong, 517 U.S. at

469. The Court did not clearly define what constitutes “some evidence.” Id.

Rather, the Court criticized the ruling of a lower federal circuit court that held that

a defendant may establish a colorable basis for discriminatory effect without

evidence that the Government has failed to prosecute others who are similarly

situated to the defendant. Id. (emphasis added).

      Although the Court did not clearly define what constitutes “some evidence,”

the language “colorable basis for discriminatory effect” provides considerable

guidance on this issue. Id. It is clear that the Supreme Court’s definition of “some

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

defendant can prove the two elements of a selective prosecution claim. “Some

evidence” does not mean that before a hearing, the defendant must prove the

selective prosecution claim beyond a reasonable doubt, by clear and convincing

evidence, or even by a preponderance of the evidence.

      Thus, “some evidence” means that a defendant must attach to the motion to

dismiss evidence that establishes that the defendant has a colorable claim of a

constitutional violation. Once a hearing is held, the defendant must show by

“exceptionally clear evidence” that the prosecution was initiated for an improper




                                     Page 24 of 37
reason. See Garcia, 172 S.W.3d at 274; County v. State, 812 S.W.2d 303, 308

(Tex. Crim. App. 1989) (same); and Gregg v. Georgia, 428 U.S. 153, 199 (1976).

      There is no definition of “colorable claim” or “exceptionally clear evidence”

in the Texas Penal Code or Texas Code of Criminal Procedure. Terms that are not

defined by statute are given their plain meaning unless a statute clearly shows that

they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex.

Crim. App. 1988); see also Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.

1979) (same).

      A “colorable claim” is a claim that is “plausible, credible, or conceivable.”

Concise Oxford American Thesaurus, 149 (2006).           Or, it is a claim that is

“legitimate and that may reasonably be asserted, given the facts presented and the

current law.” 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).

      Appellee clearly made a “colorable claim” of a constitutional violation. The

Motion to Dismiss and its attachments set forth in painstaking detail how Blue,

who at the time was engaged in a fee dispute with Appellee, corruptly influenced

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

indictments against Appellee in exchange for a promise of campaign contributions.

These indictments were admittedly “unprecedented.” (RR4, 49, 126, 129, 155;


                                    Page 25 of 37
CR-180, 31-488). And, the indictments caused the effect desired by Blue, which

was to cause Appellee to not testify on his own behalf during the fee dispute trial

against Blue.

      But, Appellee provided more than just “some evidence” that would establish a

“colorable claim.” Appellee provided “exceptionally clear evidence” attached as a

proffer to the Motion to Dismiss because on its face, the evidence showed it was

“obvious, plain, and evident” that Watkins caused the indictments to be returned in

exchange for allowing himself to be corruptly influenced by Blue. The evidence

includes the following (See CR-180, 36-52):

       The case against Appellee was referred to the District Attorney’s Office by
        the attorney for Appellee’s father, who is an adverse party to Appellee in a
        federal lawsuit.

       On February 18, 2010, Judge Reed O’Connor of the Northern District of
        Texas entered an order finding that Appellee’s father testified falsely and
        submitted evidence in bad faith.

       Four days later, Appellee’s father submitted a letter to the Dallas District
        Attorney’s Office in which he accused Appellee and his wife of mortgage
        fraud.

       A few months later, Jeffrey Tillotson, the law firm partner of Michael Lynn,4
        donated nearly $50,000 to the reelection campaign of Watkins. Neither
        Tillotson nor other members of his firm previously donated to Watkins’s
        campaigns, but the contributions immediately made Tillotson one of
        Watkins’s largest individual contributors.

       The mortgage fraud allegations were dubious at best because the home
        equity loan obtained by Appellee was never in default, was repaid in full just
4
    Michael Lynn at the time represented Al Hill, Jr., the opposing party in the trust litigation.
                                              Page 26 of 37
   a few months after it was obtained, which was long before Watkins
   considered criminal charges against Appellee, and was fully secured at all
   times by Appellee’s undisputed equity in the subject home.

 OmniAmerican Bank did not suffer any loss, was never at risk of suffering
  any loss, and never complained to authorities that Appellee did anything
  wrong.

 Prior to indicting Appellee, the District Attorney’s Office did not interview
  witnesses such as the loan officer or the mortgage broker.

 Despite the policy of the District Attorney’s Office that defense attorneys
  would be provided notice of grand jury proceedings and an opportunity to
  present their case to the grand jury, no such notice was given to Appellee or
  his attorneys. This is despite the fact that first assistant Terri Moore, who
  was a witness during the hearing, told Texas Lawyer that it was “all about
  fairness... This is not a railroad we are running...this is a justice system.”

 Beginning in November 2009, Appellee was represented             for about six
  months in the federal litigation by a group of attorneys that   included Blue.
  Blue bragged to Appellee about her relationship with             Watkins, and
  specifically told Appellee about her personal friendship        with Watkins,
  generous campaign contributions Blue gave to Watkins,           and pro bono
  representation of Watkins as his personal lawyer.

 While representing Appellee, Blue even discussed ways she might use her
  influence with Watkins to intimidate opposing counsel in the federal
  litigation.

 Shortly after the federal litigation settled in May 2010, Blue and the two
  attorneys with whom she represented Appellee demanded $50 million in
  attorney’s fees for six months of work. When Appellee refused, Blue and the
  other attorneys withdrew from representing him and filed suit against
  Appellee.

 Two weeks before this fee dispute trial was set to begin in federal court on
  April 18, 2011, Appellee learned that he had been indicted. As a result of
  the indictments, Appellee was advised to not take the stand during the fee
  dispute trial.

                                Page 27 of 37
 The federal court entered a judgment against the Hills for more than $34
  million, which was later reduced to $21.9 million, with Blue personally
  standing to receive one-third of the judgment, or about $7.3 million.

 Appellee then obtained discovery from Blue regarding her communications
  with the District Attorney’s Office. During a deposition, Blue admitted that
  Watkins had called her before the indictments were returned to attempt to
  discuss potential charges against Appellee. Blue stated that Watkins told her
  that “there could be an indictment or are you still interested in the
  indictments,” or words to that effect.

 Through the discovery, it was revealed that a dramatic spike in
  communications between Blue and Watkins occurred in the weeks and days
  before the indictments were obtained. These communications included calls
  between Blue and both Watkins’s office and cellphone numbers.

 On March 30, 2011, the day before indictments against Appellee were
  presented to the grand jury, Blue and Watkins communicated seven times
  via Watkins’s cellphone number.

 Campaign finance records reflect that on March 9, 2011, which was about
  three weeks before the indictments were presented, the Watkins campaign
  accepted a $5,000 donation from Blue. This was despite the fact that
  Watkins’s “reelection campaign” had ended months earlier (Watkins was
  reelected in November 2010).

 Blue solicited others who donated thousands more to Watkins around the
  same time.

 About 18 months after Appellee was indicted, on October 12, 2012,
  Appellee’s counsel met with assistant district attorney Deborah Smith, who
  took over the cases against Appellee long after the indictment. Smith
  described a “reevaluation” of the cases, and said that she had already
  determined that she would recommend dismissing certain charges against
  both Appellee and his wife (who was also indicted). Smith also told
  Appellee’s counsel that she was conducting “due diligence” interviews of
  witnesses regarding the remaining charges, and would eventually make a
  recommendation regarding those charges as well.

                                Page 28 of 37
    Smith expressed significant concerns about the cases against Appellee and
     his wife, made clear that she (Smith) had no role in obtaining the
     indictments, further stated that the interviews of witnesses she was
     conducting should have been conducted much earlier, and also stated that
     she would refuse to try the case if her office decided to go forward on any of
     the charges. Smith conveyed several reasons why the charges against
     Appellee were without merit. Smith requested that certain information be
     put in a written submission for her to use in connection with her
     recommendations.

    Smith then “apologized” on behalf of the District Attorney’s Office.

    On October 19, 2012, Appellee’s counsel emailed the written submission to
     Smith.

    Shortly after the meeting with Smith, the District Attorney’s Office filed a
     motion to dismiss all charges against Appellee’s wife.

    On October 22, 2012, in response to the email from Appellee’s counsel,
     Smith stated that even though she was in the middle of a “reevaluation” of
     the cases against Appellee and his wife, which had already caused Smith to
     recommend and obtain dismissals against Appellee’s wife, Smith had been
     removed from the Hill case effective the previous Friday and was reassigned
     to a different department.

         iv. A “proffer of evidence” means to present “some evidence” that
             establishes a “colorable claim” of selective prosecution. It does
             not mean that a defendant is required to prove selective
             prosecution based on any standard through the filing of a motion
             to dismiss alone.
      Another issue the majority in the Court of Appeals misunderstands is what

constitutes a “proffer” of evidence in the context of making a colorable claim and

thus providing “some evidence” that a constitutional violation took place.

Proffered evidence is generally evidence that is offered to a court so that the court


                                    Page 29 of 37
can make a ruling on its admissibility. Black’s Law Dictionary, 579 (7th ed.

1999). A “proffer of evidence” in the context of a selective prosecution claim is

similar to the procedure under Franks v. Delaware, 438 U.S. 154 (1978), where a

defendant contests the truthfulness of an affidavit supporting a search warrant. The

similarities between asserting a claim of selective prosecution and a claim under

Franks are two-fold.

      First, just like there is a “presumption of regularity” that courts presume

prosecutors have properly discharged their official duties” (i.e., prosecutors do not

usually cause indictments to be returned in exchange for allowing themselves to be

corruptly influenced as is the case with Watkins), see Armstrong, 517 U.S. at 464,

there is also a presumption of truthfulness that attaches to the affidavit supporting a

search warrant. Franks, 438 U.S. at 171.

      Second, just like a defendant should be able to obtain a hearing if the

defendant attaches “some evidence” that constitutes a “colorable claim” of

selective prosecution, in the Franks setting, it is possible for a defendant to obtain

a hearing on the truthfulness of the affidavit under the following circumstances: (1)

there must be an allegation of deliberate falsehood or reckless disregard for the

truth, accompanied by an offer of proof [See Hinojosa v. State, 4 S.W.3d 240, 247

(Tex. Crim. App. 1999)]; (2) the allegation must point specifically to portions of

the affidavit claimed to be false, and should be accompanied by a statement of


                                     Page 30 of 37
supporting reasons [Cates v. State, 120 S.W.3d 352, 357 (Tex. Crim. App. 2003)]

(The defendant made a sufficient preliminary showing to be entitled to an

evidentiary hearing by specifying six specific portions of warrant affidavit that

defendant claimed he knew to be false); and (3) the alleged false matter must be

necessary to support a finding of probable cause. See Harris v. State, 227 S.W.3d

83, 85 (Tex. Crim. App. 2007). If these three conditions are met, and the contents

of the affidavit that are not challenged are insufficient to support a finding of

probable cause, the defendant is entitled to a hearing on the issue of the

truthfulness of the affidavit. Harris, 227 S.W.3d at 85.

      In order to obtain a Franks hearing, it is not required that the defendant

include a sworn affidavit in making this preliminary showing. Ramsey v. State,

579 S.W.2d 920, 923 (Tex. Crim. App. 1979); Cates, 120 S.W.3d at 359 (same). In

Ramsey, this Court noted that in Franks, no affidavit or other written material was

offered, but only a statement by the defense attorney as to what would be shown if

he were allowed to call witnesses on the issue. Ramsey, 579 S.W.2d at 923

(emphasis added). This Court held that as in Franks, this preliminary showing is

sufficient. Id.

      Therefore, if merely by alleging a deliberate falsehood or reckless disregard

for the truth accompanied by an offer of proof enables a defendant can obtain a

Franks hearing in order to prove a constitutional violation, certainly a defendant


                                    Page 31 of 37
should obtain a hearing to determine whether the defendant was selectively

prosecuted if the defendant attaches “some evidence” as a proffer to the motion to

dismiss that the trial court in its discretion determines to be a colorable claim of a

constitutional violation. And, there is and should be no requirement that affidavits

or sworn statements be attached to a motion to dismiss (as the majority of the

Court of Appeals intimates). By ruling as it did, the majority carved out an

unprecedented rule, the result of which is that absent an admission by a prosecutor

that he or she: (1) singled a defendant out for prosecution and did not proceed

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

defendant was charged; and (2) acted in an invidious manner, there is no

circumstance that would allow a defendant to obtain a hearing on a selective

prosecution claim under the “presumption of prosecutorial vindictiveness” method.

This Court should not allow this result to stand.


         v. As the dissent correctly points out, no appellate court in Texas has
            ever ruled that a trial court erred in conducting a hearing on a
            defendant’s motion to dismiss charges on the basis they violated
            his constitutional rights.
      Appellee also has not found another case where an appellate court in Texas

ruled that a trial court erred in conducting a hearing on a defendant’s motion to

dismiss charges on the basis they violated his constitutional rights. Hill, Id. at 38-

39; citing State v. Dinur, 383 S.W.3d 695, 698-699 (Tex. App. Houston [14th


                                    Page 32 of 37
Dist.] 2012, no pet.) (Trial court allowed hearing); Rodriguez v. State, 283 S.W.3d

465, 471-472 (Tex. App. San Antonio 2009) (same); Galvan v. State, 988 S.W.2d

291, 293 (Tex. App. Texarkana 1999) (same). Even when the proffer of evidence

is dubious, the reviewing court did not rule as the Court of Appeals did in this case.

See, e.g., Garcia, Id. at 272-274 (Interference with child custody case where on its

merits, the court of appeals rejected a claim of selective prosecution where all the

defendant presented was an allegation that another person who fled to Mexico with

a child was not prosecuted).


          vi. Conclusion
      To establish a prima facie case of selective prosecution in violation of the

Fifth and Fourteenth Amendments, and to obtain a hearing under the “presumption

of prosecutorial vindictiveness” method, a defendant must provide “some

evidence” that shows: (1) the government singled out the defendant for prosecution

and has not proceeded against others similarly situated based on the type of

conduct for which the defendant is charged; and (2) the government’s

discriminatory selection is invidious. Once the defendant makes this showing, the

burden shifts to the State to justify the discriminatory treatment.

      Appellee asks this Court to clarify what constitutes “some evidence” and

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

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

                                     Page 33 of 37
determines to be a colorable claim of a constitutional violation, the defendant has

attached “some evidence,” and a trial court should be permitted to conduct a

hearing on the motion to dismiss.

      In the case before this Court, Appellee not only attached “some evidence”

showing a constitutional violation, but in fact attached “exceptionally clear

evidence.” As a result, the Court of Appeals erred when it: (1) sustained the State’s

second issue and concluded that Appellee “did not make the proper showing

sufficient to establish a prima facie case...” of the fact that the former elected

district attorney of Dallas County engaged in prosecutorial misconduct by allowing

himself to be corruptly influenced by Blue in return for indicting Appellee; (2)

found that the trial court erred in conducting a hearing on Appellee’s motion to

dismiss based upon prosecutorial misconduct; (3) vacated the trial court’s Order

Granting Motion to Dismiss; and (4) remanded the case to the trial court to

reinstate the indictments against Appellee.

      As a result, (1) the decision of the Court of Appeals conflicts with another

court of appeals’ decision on the same issue; (2) the Court of Appeals has decided

an important question of state or federal law that has not been, but should be,

settled by the Court of Criminal Appeals; (3) the Court of Appeals has decided an

important question of state or federal law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals and the Supreme Court of


                                    Page 34 of 37
the United States; (4) the Court of Appeals misconstrued a rule; and (5) the justices

of the Court of Appeals have disagreed on a material question of law necessary to

the court’s decision. See Tex. Rule App. Proc. 66.3 (2015). Appellee asks this

Court to grant discretionary review.


IX. Conclusion and Prayer

      For the reasons stated in this petition, Appellee respectfully prays that this

Court grant discretionary review, reverse the judgment and opinion of the Fifth

Court of Appeals, find that Appellee provided “some evidence” that entitled him to

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
                                         Attorney for Appellee

                                         Leonard Thomas (Butch) Bradt
                                         14015 Southwest Freeway Suite 4
                                         Sugar Land, TX 77478
                                         Phone: 972-201-0700
                                         Fax: 972-201-1202
                                         ltbradt@flash.net
                                         Texas Bar No. 02841600
                                         Attorney for Appellee


                                       Page 35 of 37
                                      Michael Mowla
                                      445 E. FM 1382 #3-718
                                      Cedar Hill, Texas 75104
                                      Phone: 972-795-2401
                                      Fax: 972-692-6636
                                      michael@mowlalaw.com
                                      Texas Bar No. 24048680
                                      Attorney for Appellee



                                      /s/ Michael Mowla
                                      By: Michael Mowla


X. Certificate of Service

       This certifies that on February 23, 2015, a copy of this document was served
on Lori Ordiway and Lisa Smith of the Dallas County District Attorney’s Office,
Appellate Division, 133 N. Riverfront Boulevard, Dallas, Texas 75207 by email to
lori.ordiway@dallascounty.org,             lisa.smith@dallascounty.org,         and
DCDAAppeals@dallascounty.org; and on Lisa McMinn, the State Prosecuting
Attorney, by email to Lisa.McMinn@spa.texas.gov, and 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




                                   Page 36 of 37
XI. 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 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 4,353 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, 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




                                    Page 37 of 37
APPENDIX 1
|   | Neutral
As of: February 14, 2015 8:05 AM EST

                                             State v. Hill
                        Court of Appeals of Texas, Fifth District, Dallas
                               December 29, 2014, Opinion Filed
       No. 05-13-00421-CR, No. 05-13-00423-CR, No. 05-13-00424-CR, No. 05-13-00425-CR

Reporter
2014 Tex. App. LEXIS 13835

THE STATE OF TEXAS, Appellant v. ALBERT G. HILL III, Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION
OF UNPUBLISHED OPINIONS.

Prior History: [*1] On Appeal from the 204th Judicial District Court, Dallas County, Texas. Trial
Court Cause Nos. F11-00180-Q, F11-00182-Q, F11-00183-Q, F11-00191-Q.
In re Watkins, 2013 Tex. App. LEXIS 4194 (Tex. App. Dallas, Apr. 2, 2013)

Core Terms

indictments, trial judge, prosecute, evidentiary hearing, charges, district attorney’s office, allegations,
trial court, motion to dismiss, vindictiveness, campaign, prima facie case, cases, discovery, exhibits,
grand jury, animus, constitutional right, phone call, fee-dispute, constitutional violation, attorneys’,
documents, donated, deposition, motion to quash, prosecutorial, notice, district attorney, communications

Case Summary

Overview
HOLDINGS: [1]-The charges against defendant should not have been dismissed where the trial judge
erred in conducting a hearing on defendant’s motion to dismiss because defendant did not make the
proper showing sufficient to establish a prima face case of his alleged constitutional violations; [2]-The
trial judge granted defendant an evidentiary hearing so that he could try to prove that he was prosecuted
in violation of his constitutional rights, but by conducting that evidentiary hearing before defendant
met the evidentiary threshold, the judge turned the standard around and put the burden on the State to
show why the prosecutor was not operating under a conflict of interest and how the prosecution of
defendant was not vindictive or selective.

Outcome
Order vacated and cases remanded.

LexisNexis® Headnotes

    Criminal Law & Procedure > ... > Standards of Review > Deferential Review > General Overview
    Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > General Overview
                                     2014 Tex. App. LEXIS 13835, *1



  Criminal Law & Procedure > Trials > Judicial Discretion
  Criminal Law & Procedure > ... > Standards of Review > Deferential Review > General Overview
  Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > General Overview
  Criminal Law & Procedure > Trials > Judicial Discretion

HN1 While an appellate court ordinarily defers to a trial judge’s decision to hold an evidentiary
hearing, that deference is tempered by the legal principles and standards governing evidentiary
hearings. A judge’s decision to hold an evidentiary hearing is reviewed for an abuse of discretion. Tex.
Code Crim. Proc. Ann. arts. 28.01, § 1(2), 27.02(1) (2006).

  Criminal Law & Procedure > ... > Accusatory Instruments > Dismissal > Procedure
  Criminal Law & Procedure > Trials > Burdens of Proof > Defense
  Criminal Law & Procedure > ... > Dismissal > Grounds for Dismissal > General Overview
  Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
  Evidence > ... > Presumptions > Particular Presumptions > Regularity
  Criminal Law & Procedure > ... > Accusatory Instruments > Dismissal > Procedure
  Criminal Law & Procedure > Trials > Burdens of Proof > Defense
  Criminal Law & Procedure > ... > Dismissal > Grounds for Dismissal > General Overview
  Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
  Evidence > ... > Presumptions > Particular Presumptions > Regularity

HN2 Generally, a trial judge has only limited authority to dismiss a case without the State’s consent,
such as to remedy a constitutional violation. And while a trial judge may dismiss an indictment where
constitutional protections are not observed, the dismissal of an indictment is a drastic measure only to
be used in the most extraordinary circumstances. A trial judge’s limited authority to dismiss an
indictment stems in part from the fact that the decision of whether to prosecute is a core executive
constitutional function. Because this power is within the province of the State, the State enjoys
considerable discretion in deciding whether or not to prosecute and what charge to file or bring to the
grand jury. That means courts presume the State exercised its prosecutorial responsibilities in good
faith and in compliance with the Constitution. The burden on the defendant to show that a particular
prosecutorial decision was predicated on constitutionally impermissible grounds is high, requiring him
to prove his claim with clear evidence.

  Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
  Evidence > ... > Presumptions > Particular Presumptions > Regularity
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
  Criminal Law & Procedure > Commencement of Criminal Proceedings > Counsel > Prosecutors
  Evidence > ... > Presumptions > Particular Presumptions > Regularity
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

                                                Page 2 of 29
                                      2014 Tex. App. LEXIS 13835, *1



HN3 The significance of the presumption courts afford prosecutors carries over to a defendant’s
request for an evidentiary hearing or discovery. That is, in light of the presumption of prosecutorial
regularity, a defendant who claims his constitutional rights were violated by some form of
prosecutorial misconduct must make out a prima facie case of his claims before he is entitled to an
evidentiary hearing or discovery. To do this, a defendant must present facts sufficient to create a
reasonable doubt about the constitutionality of his prosecution. The facts required to cast doubt about
the constitutionality of the prosecution and to rebut the presumption the State acted in good faith such
that a person is entitled to an evidentiary hearing (or even discovery) must be more than allegations.
Rather, a defendant’s factual allegations must be accompanied by evidence that tends to establish his
constitutional claims. Indeed, the standard for obtaining discovery on claims like selective or
vindictive prosecution requires some evidence tending to show the existence of the essential elements
of the claimed violations. This standard is rigorous and complements the rigorous standard for proving
constitutional violations in the decision to prosecute.

  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Tests for Prosecutorial Misconduct
  Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Tests for Prosecutorial Misconduct
  Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN4 The absence of an impartial and disinterested prosecutor can violate a defendant’s due process
rights. Partiality in this context is like a conflict of interest in the sense that the prosecutor has a
personal interest or stake in the outcome of the criminal prosecution. It also refers to any interest that
conflicts with the prosecutor’s duty to seek justice. Thus, the due process rights of a defendant are
violated when a prosecuting attorney who has a conflict of interest relevant to the defendant’s case
prosecutes the defendant. The mere potential or perceived conflict of interest is not sufficient to
establish a due process violation. Similarly, mere allegations of wrongdoing do not suffice.

  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

HN5 ″Prosecutorial vindictiveness″ refers to a situation in which the State acts against a defendant by
bringing criminal charges in retaliation for the defendant’s exercise of his legal rights. A prosecutorial
action is vindictive if it is designed to penalize a defendant for invoking legally protected rights. A
defendant may demonstrate prosecutorial vindictiveness by showing actual vindictiveness, which
requires him to present objective evidence of the violation. Or, in certain circumstances, the defendant
may rely on a presumption of vindictiveness, which requires him to present facts showing the realistic
likelihood of vindictiveness, forcing the State to present objective evidence justifying the prosecutorial
action. There is no presumption of vindictiveness if in the context of the entire proceedings any
objective event or combination of events in those proceedings should indicate to a reasonable minded
defendant that the prosecutor’s decision was motivated by some purpose other than a vindictive desire
to deter or punish. Even if the defendant establishes a realistic likelihood of vindictiveness, the State
still has an opportunity to proffer legitimate, objective reasons for its conduct.

                                                Page 3 of 29
                                     2014 Tex. App. LEXIS 13835, *1



  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution

HN6 Evidence of suspicious timing alone does not indicate prosecutorial animus.

  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Constitutional Law > Equal Protection > Nature & Scope of Protection
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Constitutional Law > Equal Protection > Nature & Scope of Protection
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof

HN7 A selective prosecution claim is an assertion that the State brought charges for reasons forbidden
by the Constitution. A selective-prosecution claim draws on ordinary equal protection standards and
requires a defendant to prove the existence of purposeful discrimination. To make out a prima facie
case, the defendant must first show that he has been singled out for prosecution while others similarly
situated and committing the same acts have not been prosecuted. He must also show that the State’s
discriminatory selection of him for prosecution was invidious or in bad faith.

  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Burdens of Proof
  Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Selective & Vindictive Prosecution

HN8 There is an evidentiary threshold that must be met by the defendant before he is entitled to an
evidentiary hearing on his claims that he was prosecuted in violation of his constitutional rights. That
burden requires a defendant to do more than make unsupported allegations or speculative inferences
about an improper motive. Stated another way, before a defendant gets to make inquiries into the
State’s decision to prosecute, the defendant must support his allegations with evidence that tends to
establish his constitutional claims. A defendant may demonstrate prosecutorial vindictiveness by
showing actual vindictiveness, which requires him to present objective evidence of the violation. Or,
in certain circumstances, the defendant may rely on a presumption of vindictiveness, which requires
him to present facts showing the realistic likelihood of vindictiveness, forcing the State to present
objective evidence justifying the prosecutorial action. There is no presumption of vindictiveness if in
the context of the entire proceedings any objective event or combination of events in those proceedings
should indicate to a reasonable minded defendant that the prosecutor’s decision was motivated by
some purpose other than a vindictive desire to deter or punish.

Counsel: for appellants: Michael R. Casillas, Dallas, TX; Charles “Chad” Baruch, Rowlett, TX.

for appellees: George Milner III, Dallas, TX; John C. Hueston, NewPort Beach, CA; Marshall Camp,
Alison Plessman, Los Angeles, CA; Michael Mowla, Cedar Hill, TX.

                                                Page 4 of 29
                                                2014 Tex. App. LEXIS 13835, *1



Judges: Before Justices Bridges, O’Neill, and Brown. Opinion by Justice Brown. Bridges, J.,
dissenting.

Opinion by: ADA BROWN

Opinion

Opinion by Justice Brown

On March 31, 2011, a Dallas grand jury returned multiple indictments against Albert G. Hill III and
his wife for the offenses of making a false statement to obtain property or credit and securing execution
of a document by deception.1 The charges allegedly arose out of the Hills’ procurement of a $500,000
home-equity loan in 2009. The State later dismissed the charges against Hill’s wife and continued to
prosecute the cases against Hill. In a motion filed shortly after the dismissal of his wife’s charges, Hill
sought to quash and dismiss the indictments against him, alleging he was the victim of various forms
of prosecutorial misconduct in violation of his constitutional rights. Alternatively, he asked for an
evidentiary hearing and discovery to develop the issues presented in his motion. Over the State’s
objections, the trial judge determined that Hill met his initial burden of proof related to his
constitutional [*2] claims and therefore was entitled to a hearing ″to try to prove″ his allegations. After
the judge held a hearing, the judge signed an order dismissing the indictment in each case with
prejudice.

The State appeals that order. In its first two issues, the State challenges the propriety of the evidentiary
hearing, arguing that Hill was not entitled to such a hearing because he failed to provide evidence to
establish a constitutional violation. In its third and fourth issues, the State challenges the trial judge’s
(1) dismissal of the indictments based on the Dallas County District Attorney’s refusal to testify at the
hearing and (2) decision to dismiss the indictments with prejudice.

We agree with the State that the trial judge erred in conducting an evidentiary hearing on Hill’s motion
to quash and dismiss the indictments because Hill did not make the necessary showing related to his
constitutional claims. Accordingly, we vacate the trial judge’s order dismissing the indictments in these
cases and remand the cases to the trial court with instructions to reinstate the indictments against Hill.

I.

A. Hill’s Allegations of Prosecutorial Misconduct

Hill [*3] sought pretrial dismissal of the indictments based on alleged violations of his constitutional
rights to due process and equal protection. He first alleged that his due process rights were violated
because the Dallas County District Attorney, Craig Watkins, was not disinterested in the prosecution
of him but rather was operating under the influence of Hill’s father, who was adverse to Hill in
contested litigation involving a multi-billion dollar family trust, and Lisa Baron Blue, a close friend
and political patron of Watkins. Hill argued Watkins’s decision to present the cases to the grand jury
was influenced by the payment of political contributions. Hill also alleged that a due process violation
1
     See TEX. PENAL CODE ANN. §§ 32.32(b), 32.46(a) (West 2011).

                                                            Page 5 of 29
                                      2014 Tex. App. LEXIS 13835, *3



occurred because Watkins’s decision to prosecute him was vindictive, asserting that the State brought
the charges in retaliation for Hill having exercised his right to petition the civil courts. His third
allegation was that he was selectively prosecuted in violation of his equal protection rights.
Hill based his allegations of prosecutorial misconduct on a series of ″facts″ that he presented in his
motion. Hill stated that it was his father’s lawyer, Michael Lynn, who filed the complaint [*4] with the
DA’s office accusing Hill and his wife of mortgage fraud. The complaint was submitted to the DA’s
office in February 2010, while the trust litigation was still pending and days after Hill’s father received
an adverse ruling in that case. The next month, Watkins received a series of campaign donations from
Jeffrey Tillotson, a law partner at Lynn’s firm. Hill asserted that neither Tillotson nor anyone at that
firm had previously donated to Watkins’s campaigns. The donations totaled $48,500, with the last
donation made five months before the Hills were indicted.
Hill also asserted that the mortgage-fraud allegations were ″highly unusual″ because the home-equity
loan was not in default and was repaid in full shortly after the loan was obtained. According to Hill,
the lender did not suffer a loss and had not complained about any wrongdoing. In addition, Hill claimed
the DA’s office did not conduct a standard investigation because it failed to interview certain
witnesses. Nor did the DA’s office notify him that indictments were being considered despite Hill’s
claim that the DA’s office had a policy of providing notice and giving the accused’s lawyers an
opportunity to address the [*5] grand jury before charges are presented.
Hill further complained that the timing of the indictments was suspect. In particular, Hill claimed the
indictments were returned two weeks before the Hills were to begin trial in a fee dispute with the
lawyers that represented them in the trust litigation, one of whom was Blue. Hill explained that after
the trust litigation settled, the Hills contested the amount of attorneys’ fees sought by Blue and the
other lawyers. The lawyers filed suit, maintaining the Hills owed over $50 million in attorneys’ fees.
Hill stated that because of the pending indictments, the Hills asserted their Fifth Amendment privilege
against self-incrimination and did not testify in the fee-dispute litigation.
Hill emphasized that Blue exchanged numerous phone calls and text messages with Watkins and his
assistant in the weeks before the indictments were returned. Hill also pointed out that Blue donated
money to Watkins’s campaign and held a social event at her home to raise money for the campaign
during that same time frame. Hill alleged that the pattern of phone calls and text messages between
Blue and Watkins revealed a ″dramatic spike″ in communications in the weeks before the indictments
 [*6] were returned and that the ″heated exchange of calls″ between Blue and Watkins ended after the
indictments were announced. Further, in a deposition conducted after the conclusion of the fee-dispute
trial, Hill claimed that Blue admitted that two of those phone calls from Watkins were about the
indictments before the indictments were returned. Hill also claimed that during Blue’s representation
of the Hills in the trust litigation, Blue ″bragged″ to him about her relationship with Watkins. Hill
stressed that this was not ″idle bragging″ and that Blue has a ″very close personal, professional and
political relationship″ with Watkins as represented by Blue’s status as one of Watkins’s largest
individual donors, Blue’s pro bono representation of Watkins in connection with an unrelated lawsuit,
Blue’s $100,000 donation to SMU law school to create a scholarship in Watkins’s name, and the fact
that Watkins hired Blue and another attorney to represent Dallas County in a contingent-fee suit.
Hill finally claimed that the DA’s office ″apologized″ to the Hills on behalf of the DA’s office, and
he proclaimed that with the dismissal of the charges against his wife, the office ″effectively
                                                 Page 6 of 29
                                      2014 Tex. App. LEXIS 13835, *6



acknowledge[ed] the wrongfulness [*7] of those charges.″ According to Hill, the Hills’ defense
counsel met with Assistant District Attorney Deborah Smith in October 2012. Hill maintained that
during that meeting, Smith ″expressed significant concerns″ about the charges and ″stated that she
would refuse to try the case if the DA’s Office decided to go forward on any of the charges.″ Hill also
maintained that Smith said that based on her re-evaluation of the cases, she decided to recommend
dismissing certain charges against the Hills and was conducting due-diligence interviews related to the
remaining charges. Shortly after the meeting, Smith communicated that she was reassigned to another
division. Hill called this ″remarkable news″ given that Smith was in the middle of her re-evaluation
of the charges against the Hills.
Hill argued the circumstances presented by these ″facts″ constitute ″clear and appalling″ violations of
his constitutional rights and establish that the DA’s office served as a ″stalking horse″ for the interests
of (1) Hill’s father, who Hill maintained reported the allegations of mortgage fraud in retaliation for
his ″exercise of his constitutional rights in the trust litigation″; (2) Lynn, who submitted [*8] the
mortgage-fraud allegations to the DA’s office and whose law partner donated $48,500 to Watkins’s
campaign; and (3) Blue, Watkins’s friend and generous campaign contributor, who was seeking
millions of dollars in attorneys’ fees from the Hills at the time the indictments were returned. Hill
maintained that the charges ″had the desired effect″ by impairing the Hills’ ability ″to exercise their
constitutional rights to defend themselves″ in the fee-dispute litigation involving Blue.

B. Hill’s Proffer of Evidence in Support of His Motion
As support, Hill attached forty-four exhibits to his motion, most of which were unauthenticated or not
otherwise identified by affidavit testimony. Those exhibits included what appeared to be a page from
Lynn’s February 2010 complaint, various pleadings, excerpts from Watkins’s campaign finance
reports, e-mail exchanges among counsel in the trust litigation, Blue’s telephone records, a log of text
messages between Blue and Watkins and his assistant, announcements about the SMU scholarship
funded by Blue and about Watkins’s hiring of Blue to help in unrelated litigation, a printout of a 2007
Texas Lawyer article about the office’s grand jury policy, and [*9] Smith’s e-mail about her
reassignment. Hill also attached what appeared to be excerpts from (1) transcripts in the fee-dispute
litigation related to the Hills’ request for a continuance and their assertion of their Fifth Amendment
privilege and (2) deposition testimony from (a) Blue in the fee-dispute litigation in which she testified
to receiving two phone calls from Watkins about the indictments of the Hills and (b) Blue’s co-counsel
in the trust litigation, Stephen Malouf, who testified to overhearing one of those conversations.

C. The State’s Response to Hill’s Motion
The State filed a brief opposing the motion to quash and dismiss the indictments. The State argued the
trial judge lacked the authority to grant Hill’s motion because Hill failed to prove any constitutional
violation. The State also emphasized that Hill’s prosecution was not ″the product of a favored and
discontented campaign donor’s audience with the District Attorney.″ Rather, the State asserted that the
investigation into the offense began with the letter from Lynn, was investigated by an experienced
prosecutor, and the decision to pursue charges against Hill was not unusual or exceptional given that
the Specialized Crime Division [*10] of the DA’s office regularly prosecutes cases like Hill’s.
The State supported its opposition with various exhibits, including the affidavits of Assistant District
Attorneys Donna Strittmatter and Stephanie Martin. Strittmatter testified that as the assigned

                                                 Page 7 of 29
                                                 2014 Tex. App. LEXIS 13835, *10



prosecutor within the Specialized Crime Division, she received Lynn’s February 2010 complaint and
supporting documents, alleging numerous fraudulent acts committed by Hill in connection with a loan
transaction. Strittmatter assigned the case to Martin to conduct an investigation. Martin testified that
she personally investigated the allegations against Hill and her investigation included receiving large
volumes of documents from the bank and title company. Martin also obtained deposition testimony of
Hill and others, and she spoke to legal counsel from the bank. Strittmatter confirmed that Martin
investigated the case for several months and provided updates to her as Martin reviewed the evidence.

Martin also testified that the Specialized Crime Division within the DA’s office regularly prosecutes
crimes similar to those alleged to have been committed by Hill. She explained that many of the
indictments the division obtains for the [*11] same crime involve property or credit valued at $200,000
or more. She said she personally prosecuted four mortgage-fraud cases involving circumstances where
no loss was suffered.

Both Strittmatter and Martin testified that they did not have a practice of notifying a suspect that he
is the target of a criminal investigation. Martin also stated that it was not her practice to provide a
suspect with an opportunity to be heard by the grand jury before indictment. Both also testified that
they were unaware of the fee-dispute litigation between Blue and the Hills.

D. The Trial Judge Sets the Motion to Dismiss for a Hearing

In advance of the hearing on his motion, Hill served subpoenas on various individuals from the DA’s
office, including Watkins, Moore, Martin, and Strittmatter. He also served subpoenas on Blue, Malouf,
and Charla Aldous, who was Blue’s other co-counsel representing the Hills in the trust litigation. The
State responded with motions to quash the subpoenas, raising procedural objections and arguing,
among other things, that Hill was not entitled to seek information from the individuals because Hill’s
motion to quash and dismiss the indictments was invalid. The State argued [*12] that Hill’s motion did
not allege (1) that Watkins placed Hill in an arbitrary classification in determining whether to indict
him, (2) any cognizable retaliation by Watkins, or (3) any alleged exercise of Hill’s legal rights. The
State also stressed that Hill did not ″even allege a lack of objective basis to indict.″ The State
maintained that because these infirmities were fatal to Hill’s motion to quash and dismiss the
indictments, the State could not be burdened to comply with Hill’s subpoenas.

E. The Trial Judge Grants Hill an Evidentiary Hearing

The trial judge heard argument on Hill’s motion on February 14, 2013. Although the judge stated that
she did not ″understand how [Hill was] gonna get there″ based on the type of evidence Hill explained
would be ″elicit[ed]″ and would ″come out″ in the examinations of Watkins and Blue, she granted Hill
the ″right to have a hearing to try to prove to the Court that this case was handled differently from any
other case″ that would come before the DA. The judge also determined that Hill presented prima facie
evidence of his claims and that he had a ″right to make inquiries″ to ″make [his] case.″2
2
    At the time she made this determination, the judge had Hill’s [*13] motion plus the attachments to his motion, the State’s opposition
to Hill’s motion, which included various attachments and the affidavits of Strittmatter and Martin, and Hill’s brief in reply. The judge
also had the various motions to quash the subpoenas served by Hill, Hill’s opposition to those motions, and an affidavit, dated February
12, 2013, filed by Blue in support of her motion for protective order regarding the subpoena to appear at the hearing.

                                                               Page 8 of 29
                                                2014 Tex. App. LEXIS 13835, *13



The State asked the judge for time to appeal the ruling, arguing that Hill was not entitled to a hearing
at this point because he failed to establish a prima facie case for his constitutional claims. The State
further objected to the hearing on the basis that Hill was trying to develop evidence that he did not
have. The judge overruled the State’s objections. The State also sought mandamus relief from this
Court and a stay of the hearing from the Texas Court of Criminal Appeals. In its mandamus petition,
the State complained, among other things, about the judge’s finding that Hill established a prima facie
case.
The trial judge conducted an evidentiary hearing related to Hill’s motion to quash and dismiss the
indictments while the State’s [*14] requests for relief were pending. On March 7, 2013, the judge
signed the order dismissing the indictments with prejudice on the basis that Hill had been denied ″his
right to a full and fair hearing on his motion″ due to Watkins’s refusal to testify at the hearing. We
ultimately dismissed the State’s petition for writ of mandamus as moot on April 2, 2013.3

II.

The State’s first two issues relate to the trial judge’s decision to hold an evidentiary hearing. HN1
While we ordinarily defer to a trial judge’s decision to hold an evidentiary hearing,4 that deference is
tempered by the legal principles and standards governing evidentiary hearings as outlined below. See,
e.g., United States v. Webster, 162 F.3d 308, 334 (5th Cir. 1998) (defendant ″not automatically entitled
to an evidentiary hearing to make the required showing″).

HN2 Generally, a trial judge has only limited authority to dismiss a case without the State’s consent,
such as to remedy a constitutional [*15] violation. State v. Mungia, 119 S.W.3d 814, 816-17 (Tex. Crim.
App. 2003). And while a trial judge may dismiss an indictment where constitutional protections are not
observed, ″the dismissal of an indictment is ’a drastic measure only to be used in the most
extraordinary circumstances.’″ Id. at 817 (quoting State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App.
1995)).
A trial judge’s limited authority to dismiss an indictment stems in part from the fact that the decision
of whether to prosecute is a core executive constitutional function. United States v. Armstrong, 517
U.S. 456, 464-65, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996). Because this power is within the province
of the State, the State enjoys considerable discretion in deciding whether or not to prosecute and what
charge to file or bring to the grand jury. Id. at 464 (″In the ordinary case, ’so long as the prosecutor
has probable cause to believe that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely
in his discretion.’″) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 54 L. Ed. 2d
604 (1978)); see also Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 84 L. Ed. 2d 547
(1985) (recognizing that ″the decision to prosecute is particularly ill-suited to judicial review″); Neal
v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). As a result of that discretion, our consideration
of Hill’s claims begins with a ″presumption of regularity.″ Armstrong, 517 U.S. at 464 (courts presume
prosecutors have ″properly discharged their official duties″). That [*16] means we presume the State
3
  See In re Watkins, Nos. 05-13-00298-CV, 05-13-00299-CV, 05-13-00300-CV, 05-13-00301-CV, 05-13-00302-CV, 2013 Tex. App.
LEXIS 4194, 2013 WL 1363766, at *1 (Tex. App.—Dallas Apr. 2, 2013, orig. proceeding) (mem. op.).
4
   A judge’s decision to hold an evidentiary hearing is reviewed for an abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 28.01,
§ 1(2) (West 2006); see also id. art. 27.02(1).

                                                              Page 9 of 29
                                     2014 Tex. App. LEXIS 13835, *16



exercised its prosecutorial responsibilities in good faith and in compliance with the Constitution. Id.
at 465-66; Neal, 150 S.W.3d at 173. The burden on the defendant to show that a particular prosecutorial
decision was predicated on constitutionally impermissible grounds is high, requiring him to prove his
claim with ″clear evidence.″ Armstrong, 517 U.S. at 465; Webster, 162 F.3d at 334; see also Garcia
v. State, 172 S.W.3d 270, 274 (Tex. App.—El Paso 2005, no pet.) (stating that an appellant ″claiming
selective prosecution must come forth with ’exceptionally clear evidence’ that the prosecution was
initiated for an improper reason″).

HN3 The significance of the presumption courts afford prosecutors carries over to a defendant’s
request for an evidentiary hearing or discovery. See Webster, 162 F.3d at 334 (″A defendant is not
automatically entitled to an evidentiary hearing to make the required showing.″); see also Armstrong,
517 U.S. at 464 (noting that because prosecutors are afforded a ″background presumption,″ the
necessary showing ″to obtain discovery should itself be a significant barrier to the litigation of
insubstantial claims″). That is, in light of the presumption of prosecutorial regularity, a defendant who
claims his constitutional rights were violated by some form of prosecutorial misconduct must make out
a prima facie case of his claims before he [*17] is entitled to an evidentiary hearing or discovery. See
In re United States, 397 F.3d 274, 284 (5th Cir. 2005); Webster, 162 F.3d at 334. To do this, a defendant
must ″present facts ’sufficient to create a reasonable doubt about the constitutionality of [his]
prosecution’ . . . .″ Webster, 162 F.3d at 334 (quoting United States v. Jennings, 724 F.2d 436, 445-46
(5th Cir. 1984)). The ″facts″ required to cast doubt about the constitutionality of the prosecution and
to rebut the presumption the State acted in good faith such that a person is entitled to an evidentiary
hearing (or even discovery) must be more than allegations. See Jennings, 724 F.2d at 445-46 (motion
containing broad, generalized allegations did not offer facts to the court to warrant evidentiary
hearing); see also Wade v. United States, 504 U.S. 181, 186, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992)
(stating that ″generalized allegations of improper motive″ are not enough to entitle a defendant to a
remedy, discovery, or evidentiary hearing); United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008)
(″Generalized allegations of improper motive do not disturb the presumption of regularity.″). Rather,
a defendant’s factual allegations must be accompanied by evidence that tends to establish his
constitutional claims. See Jennings, 724 F.2d at 445-46 (after reviewing affidavit and statement offered
in support of motion to quash, court unable to conclude Jennings presented facts sufficient to create
reasonable doubt about the selectivity of his prosecution). Indeed, the standard for [*18] obtaining
discovery on claims like selective or vindictive prosecution requires ″some evidence tending to show
the existence of the essential elements″ of the claimed violations. Armstrong, 517 U.S. at 468; see also
In re United States, 397 F.3d at 284 (prima facie case ″requires the criminal defendant to bring forward
some evidence″) (emphasis added). This standard is ″rigorous″ and complements the ″rigorous
standard″ for proving constitutional violations in the decision to prosecute. Armstrong, 517 U.S. at 468.

III.
In its first issue, the State complains about the documents Hill proffered with his motion. The State
argues that Hill needed to present evidence to support his claims before he was entitled to an
evidentiary hearing and, because Hill ″simply made unsworn allegations″ in his motion and ″attached
a stack of unauthenticated documents″ as exhibits, he basically provided no evidence to support his
claims. The State explains that, under Armstrong, the judge had to presume that Watkins acted in good
faith until Hill presented clear evidence to the contrary and the presentation of such evidence was a
condition that must be met before Hill was entitled to an evidentiary hearing. The State points out that

                                               Page 10 of 29
                                                 2014 Tex. App. LEXIS 13835, *18



even the trial judge advised Hill that the ″unauthenticated, [*19] un-introduced documents attached to
his motion″ were not evidence.5 Hill responds that the State did not preserve its complaint that Hill’s
attachments to his motion suffered from authentication or hearsay problems because the State did not
object on those bases in the trial court. Hill also asserts the State stipulated to the authenticity and
admissibility of the evidence attached to the motion at the March 7 evidentiary hearing.

While we are troubled by the unsworn allegations in and authenticity of the documents attached to
Hill’s motion,6 we need not resolve whether the State preserved its complaint about these documents7
because regardless of the contentions the State raised in its first issue, we conclude Hill did not meet
the standard required to warrant an evidentiary hearing even when we consider the documents attached
to Hill’s motion. Before Hill is entitled to an evidentiary hearing, he must make a prima facie showing
for his alleged constitutional claims with evidence capable of dispelling [*20] the presumption that the
prosecution of him was in good faith and in compliance with the Constitution. See Armstrong, 517 U.S.
at 465; In re United States, 397 F.3d at 284. Hill’s failure to do so means the trial judge erred in
granting Hill an evidentiary hearing, which resulted in the dismissal of the indictments. This is the
State’s second issue.

IV.

This case came to us with a large record. But in deciding the issue of whether Hill was entitled to an
evidentiary hearing to try to prove his allegations, there is no need to look beyond what the trial judge
had in her hands at the time she decided that Hill met his initial burden of proof related to his
constitutional claims. In particular, we consider Hill’s motion and the attached exhibits to determine
whether he made a prima facie case for each of [*21] his claims such that he was entitled to an
evidentiary hearing.

In his motion to quash and dismiss the indictments, Hill claimed he was deprived of his right to a
disinterested prosecutor and that he had been vindictively and selectively prosecuted. As proof of the
alleged constitutional violations, Hill emphasized the following in his motion: (1) political contributions
from a lawyer associated with Hill’s father in the months after the February 2010 complaint and five
months before the indictments were returned and a donation by Blue less than a month before the
indictments were returned; (2) that Blue hosted a fundraiser for Watkins in the month before the
indictments were returned; (3) the ″unusual″ nature of the charges against him; (4) the lack of notice
to him that indictments were being considered; (5) the suspect timing of the indictments in that they
were returned just before the fee-dispute trial involving Blue, which Hill claimed prevented him and
his wife from testifying in that trial; (6) the ″heated exchange″ of communications with Watkins and
his office in the weeks leading up to the Hills’ indictments and ending after the indictments were
returned; (7) Blue’s discussion [*22] about indictments with Watkins in the time before they were
5
    The judge’s statement was made at a hearing conducted on March 4, 2013. Specifically, the judge alerted Hill’s defense counsel that
the ″exhibits on [Hill’s] motions [were] not evidence.″
6
    In our view, the evidence accompanying a motion alleging prosecutorial misconduct must be competent evidence; the evidence must
be properly authenticated and in an otherwise admissible format. Affidavits or sworn or other reliable witness statements are appropriate
to establish a fact.
7
    The State argues it had no reason to object before the commencement of the hearing because Hill had not yet offered the documents
attached to his motion as evidence.

                                                              Page 11 of 29
                                                 2014 Tex. App. LEXIS 13835, *22



returned; (8) Blue’s comment made in her deposition that she would have no reason to discuss
indictments with Watkins after they were returned; (9) Blue’s close relationship with Watkins; (10)
defense counsel’s meeting with Smith about the charges; and (11) the fact that charges against Hill’s
wife were dismissed. Hill contends on appeal that these facts cast doubt on the constitutionality of the
prosecution and not only entitle him to an evidentiary hearing but also establish a prima facie showing
of prosecutorial misconduct.

A. Hill’s Allegation He Was Deprived of the Right to a Disinterested Prosecutor

Hill first alleged in his motion that the indictments should be dismissed because he was deprived of
the right to a disinterested prosecutor. HN4 The absence of an impartial and disinterested prosecutor
can violate a defendant’s due process rights. In re Guerra, 235 S.W.3d 392, 429 (Tex. App.—Corpus
Christi 2007, orig. proceeding). ″Partiality″ in this context is like ″a conflict of interest in the sense that
the prosecutor has a personal interest or stake in the outcome of the criminal prosecution.″ Id. at 430.
It also refers to any interest that conflicts with the prosecutor’s duty to seek justice. Id. Thus, the due
 [*23] process rights of a defendant are violated ″when a prosecuting attorney who has a conflict of
interest relevant to the defendant’s case prosecutes the defendant.″ Id. at 429. The ″mere potential or
perceived conflict of interest″ is not sufficient to establish a due process violation. Id. at 430. Similarly,
mere allegations of wrongdoing do not suffice. Id.

Hill alleged in his motion that the influence exercised upon Watkins by Hill’s father, Lynn, and Blue
deprived him of due process. He explained that Watkins had ″a financial stake in the prosecution of
the Hills″ because indicting them benefited Blue (who was involved in a dispute with the Hills over
attorneys’ fees) and Tillotson (who also was a major campaign contributor), ″which in turn benefited″
Watkins. Hill claimed Blue’s influence and involvement with the indictment process were demonstrated
by Blue’s two telephone conversations with Watkins before the indictments were returned and the
pattern of phone calls and text messages exchanged between Blue and Watkins (and others in the DA’s
office) in the weeks before the indictments were returned.

We disagree with Hill’s assertion that his motion and attachments demonstrate that Watkins’s decision
 [*24] to prosecute Hill was influenced by any wrongdoing. The documents submitted with Hill’s
motion show that Blue represented Watkins on a pro bono matter and that she is friends with him and
others in the DA’s office. She testified in her deposition that she received a phone call from Watkins
″shortly before the indictments came down.″ Her recollection of the phone call was that Watkins said
″one or two sentences about the indictments,″ something like, ″there could be an indictment or are you
still interested in the indictments.″ She testified that she responded by telling Watkins that she did not
represent the Hills and ″it would be inappropriate for [her] to talk about it.″ Blue added that she later
received another phone call from Watkins during which Watkins ″mentioned the Hills.″ Blue reminded
Watkins that she no longer represented the Hills so there was nothing she could talk about.8 Her
recollection of her response to Watkins about the indictments was affirmed by Malouf, who testified
8
    In the February 12, 2013 affidavit [*25] Blue filed in support of her motion for protective order regarding the subpoena to appear
at the hearing, Blue testified that after she no longer represented the Hills, she received two phone calls from Watkins wherein ″at the
very beginning of the conversations, District Attorney Watkins used the word ’Hill’ or ″Hills″ (and in one of the conversations I recall
he also used the word ’indictment’ or ’indict’).″ She testified that ″[o]n both occasions, [she] immediately stopped the conversation and
told Mr. Watkins that [she] no longer represented [Hill or his wife] and could not talk to Mr. Watkins about the Hills.″

                                                              Page 12 of 29
                                                 2014 Tex. App. LEXIS 13835, *25



in his deposition that he overheard Blue tell Watkins that she no longer represented the Hills, so she
could not talk to him about the investigation of the Hills.

Hill maintained that Blue’s testimony about the two phone calls was not credible and reflected
improper communications between Watkins and his friend and political contributor. He further claimed
there could be ″no benign explanation″ for Watkins to call Blue about the indictments or the Hills
during a time when Blue was involved in a fee dispute with them. But before testifying about the phone
calls, Blue also described a meeting she had with Assistant District Attorney Terri Moore when she still
represented the Hills. Blue said she discussed the potential for charges against [*26] the Hills with
Moore and explained that she told Moore that this ″was a family fight.″9 Hill’s motion does not
mention this meeting.

Other than the two phones calls testified to by Blue, Hill presented nothing to show the substance of
the text messages or other phone calls exchanged between Blue and Watkins in the time leading up to
the indictments. Hill’s arguments about their content amount to speculation. Absent evidence regarding
the substances of the communications, Hill’s characterization about the timing of the text messages and
phone calls does not necessarily suggest the communications were related to the indictments [*27] as
opposed to other legitimate purposes. Again, Hill emphasized throughout his motion that Blue had a
personal and professional relationship with Watkins for many years. It is possible their communications
encompassed a multitude of topics. Because of that relationship, contact with Watkins cannot be
considered unusual.10

Similarly, other than Hill’s speculation that the timing of Blue’s campaign donations and fundraiser
were suspect, Hill did not present any evidence that Blue’s status as a political patron related to the
indictments. As Hill pointed out in his motion, Blue had been a contributor and supporter of Watkins
since 2007, well before her fee dispute with Hill. Hill also emphasized that Watkins announced his
re-election campaign in Blue’s house in November 2009. But this merely supports the fact that Blue
had a long-term relationship with Watkins, not that Blue’s political contributions related [*28] to the
indictments. In fact, Blue’s representation of the Hills in the trust litigation did not begin until
November 2009. Further, Hill’s accusation that Tillotson’s campaign contributions in 2010 influenced
Watkins’s decision to prosecute Hill is not supported by any evidence.

B. Hill’s Allegation He Was Vindictively Prosecuted

Hill also sought dismissal of the indictments on the ground that the prosecution was initiated in
retaliation for having exercised his right to petition the civil court in two cases: the trust litigation and
the fee-dispute trial. HN5 ″Prosecutorial vindictiveness″ refers to a situation in which the State acts
against a defendant by bringing criminal charges ″in retaliation for the defendant’s exercise of his legal
9
   Blue testified to her meeting with Moore in her February 12 affidavit. Specifically, Blue testified that in the meeting with Moore, she
recommended that the Hills not be indicted. She described Moore as ″non-committal″ and testified that Moore provided no response to
the recommendation. Blue also testified that she first learned the DA’s office was investigating the Hills by reading a May 2010 D
Magazine article. She said she later learned about the formal complaint sent by Lynn in February 2010 and clarified that she did not
participate in preparing that complaint.
10
    Hill also claimed that the communications ceased ″almost completely in the days and weeks″ after the indictments were publicly
announced. But the phone records attached to Hill’s motion end on April 30, 2011. Hill does not provide any records after that date to
support this allegation.

                                                              Page 13 of 29
                                                  2014 Tex. App. LEXIS 13835, *28



rights.″ Neal, 150 S.W.3d at 173. A prosecutorial action is vindictive if it is designed to ″penalize a
defendant for invoking legally protected rights.″ United States v. Meyer, 810 F.2d 1242, 1245, 258 U.S.
App. D.C. 263 (D.C. Cir. 1987).

A defendant may demonstrate prosecutorial vindictiveness by showing actual vindictiveness, which
requires him to present objective evidence of the violation. United States v. Goodwin, 457 U.S. 368,
380-81, 102 S. Ct. 2485, 73 L. Ed. 2d 74 & n.19 (1982); Neal, 150 S.W.3d at 173; see also United
States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). Or, in certain circumstances, the defendant may
rely on a presumption of vindictiveness, which requires him to present facts showing the realistic
likelihood [*29] of vindictiveness, forcing the State to present objective evidence justifying the
prosecutorial action. Meyer, 810 F.2d at 1245; see also Neal, 150 S.W.3d at 173; United States v.
Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before
trial, the defendant ″must affirmatively show through objective evidence that the prosecutorial conduct
at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome
of the case or an attempt to seek self-vindication.″).11

In his motion, Hill argued that for a claim for vindictive prosecution, he was required to show that (1)
″the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the
charges by another with animus such that the prosecutor could be considered a ’stalking horse’″ and
(2) ″he would not have been prosecuted except for the animus.″ United States v. Koh, 199 F.3d 632,
640 (2d Cir. 1999). Hill alleged that the decision to prosecute him was prompted by his father’s anger
after receiving an adverse ruling in the trust litigation and by the animus of Blue in the fee-dispute
litigation. He also maintained that the

     timing, circumstances, and unusual if not unprecedented nature of the Hill indictments make
     abundantly clear that the real motivation of these indictments was to benefit [Watkins’s]
     prolific campaign contributor [his father’s lawyer’s law partner], and to assist [Watkins’s]
     friend and benefactor, [Blue] by impairing the Hills’ ability to contest [Blue’s] enormous fee
     claims.

He claimed such animus was demonstrated by the improprieties inherent in the indictments [*31] (such
as his denial of any pre-indictment notice or opportunity to be heard by the grand jury), the
″unprecedented nature″ of the charges, and Hill’s belief that the DA’s office did not conduct a thorough
investigation before indicting him.

That the decision to prosecute was prompted by his father’s anger is not supported by any evidence
in the record. Hill’s argument speculates as to the motivations of his father’s attorney in sending the
DA’s office the February 2010 complaint and of the timing of the law partner’s donations to Watkins’s
11
     The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn
between pretrial and post-trial prosecutorial vindictiveness. We will assume without deciding that it does because Hill did not provide
any direct proof of vindictiveness or sufficient circumstantial proof to warrant a presumption of vindictiveness. ″There is no presumption
of vindictiveness if in the context of the entire proceedings ’any objective event or combination of events in those proceedings should
indicate to a reasonable minded defendant that the prosecutor’s decision . . . was motivated by some purpose other than a vindictive desire
to deter or punish . . . .’″ Saltzman, 537 F.3d at 360 (quoting United States v. Wells, 262 F.3d 455, 466-67 (5th Cir. 2001)). Again, even
if the defendant establishes [*30] a ″realistic likelihood of vindictiveness,″ the State ″still has an opportunity to proffer legitimate,
objective reasons for its conduct.″ Id. (citing Goodwin, 457 U.S. at 374).

                                                                Page 14 of 29
                                                 2014 Tex. App. LEXIS 13835, *31



campaign, but this speculation is not evidence of genuine animus. See, e.g., United States v. Bucci, 582
F.3d 108, 114 (1st Cir. 2009) (noting that HN6 ″evidence of suspicious timing alone does not indicate
prosecutorial animus″) (quoting Cooper, 461 F.3d at 856). Nor does it support an allegation that he
″would not have been prosecuted except for the animus.″ Koh, 199 F.3d at 640.
In addition, Hill proffered no actual evidence related to improprieties inherent in the indictments, his
claim about the ″unusual″ or ″unprecedented″ nature of the charges, or his belief that the indictments
were not thoroughly investigated. Hill’s only attempt at proving he was denied notice of the possible
charges and access to the grand jury was by attaching an unauthenticated [*32] 2007 article that
described the DA’s office having such a policy. Hill did not present any evidence that such notice and
access was actually the policy of the DA’s office or its specialized crime division at the time or that
notice or that grand jury access had been provided to other defendants but denied as to him. Martin,
a specialized crime prosecutor, stated in her affidavit that her regular practice did not include providing
notice to an accused of a contemplated charge. Further, the record showed that the Hills knew about
the potential for indictments. In May 2010, while Blue still represented the Hills in the trust litigation,
D Magazine published an article questioning whether the DA’s office would go after the Hills for
mortgage fraud.12 Blue testified in her deposition that after she learned about the potential
investigation, she met with Moore and recommended that the Hills not be indicted.

Although Hill alleged that Smith communicated her ″concerns″ about the [*33] charges during a
conversation with his counsel, he provided no evidence to show that any statements were actually
made by Smith. Moreover, other evidence in the record shows that the DA’s office did, in fact,
investigate the allegations. For example, in seeking a continuance in the fee-dispute litigation after the
indictments were returned, counsel for the Hills stated that the DA’s office was producing ″thousands
of pages″ of criminal discovery that needed review before the Hills could assess their position in the
fee-dispute trial. In her affidavit filed with the State’s response to Hill’s motion, Martin also attested
to the scope of her investigation, which spanned several months and included receiving documents
from various sources and talking to the bank’s legal counsel.
Finally, Hill claimed that the DA’s office was motivated to bring charges to impair the Hills’ ability
to contest Blue’s fee claims in the fee-dispute litigation as a way to curry favor with a political
contributor. Yet the record shows that the federal judge in the fee-dispute litigation would not have
been asked to draw a negative inference to the extent that the Hills were forced to invoke their Fifth
Amendment privilege. [*34] The federal judge also recognized that because extensive discovery
including depositions had already occurred before the indictments were returned, the ″horse [was]
already out of the barn.″
In short, other than Hill’s belief that the DA’s office served as a ″stalking horse″ for others, Hill
presented no evidence to support his conclusion and could only speculate as to the nature of the
mortgage-fraud charges and how the charges were investigated within the DA’s office. Hill’s
speculation is not evidence of vindictive prosecution. Cf. Bucci, 582 F.3d at 114 (″To obtain discovery,
[the defendant] must do more than simply ’identify a potential motive for prosecutorial animus’″; ″[h]e
must connect any vindictive animus to those making the challenged charging decisions in his case.″)
(quoting United States v. Sanders, 211 F.3d 711, 718 (2d Cir. 2000)).
12
     In the February 14, 2013 hearing, counsel for the Hills told the trial judge that Hill had been aware that a case had been presented
to the DA’s office but that Hill was unaware that the case was being taken seriously.

                                                              Page 15 of 29
                                     2014 Tex. App. LEXIS 13835, *34



C. Hill’s Allegation He Was Selectively Prosecuted
Hill’s third allegation was that the indictments should be dismissed because he was denied equal
protection under the law when he was prosecuted under circumstances that do not normally lead to
criminal prosecution and when he was denied the benefit of pre-indictment notice.

HN7 A selective prosecution claim is an assertion that the State brought charges ″for reasons forbidden
by [*35] the Constitution.″ Armstrong, 517 U.S. at 463-64. A selective-prosecution claim draws on
″ordinary equal protection standards″ and requires a defendant to prove the existence of purposeful
discrimination. Id. at 465; see also Matney v. State, 99 S.W.3d 626, 628 (Tex. App.—Houston [1st Dist.]
2002, no pet.). To make out a prima facie case, the defendant must first show that he has been singled
out for prosecution while others similarly situated and committing the same acts have not been
prosecuted. Matney, 99 S.W.3d at 628. He must also show that the State’s discriminatory selection of
him for prosecution was invidious or in bad faith. Id.; see also Gawlik v. State, 608 S.W.2d 671, 673
(Tex. Crim. App. 1980).
Hill’s allegations fail to present a prima facie case that he was selectively prosecuted. He did not
present any evidence that he was singled out for prosecution under circumstances that do not normally
lead to prosecution. Nor did he offer any evidence that he was treated differently because he was
denied pre-indictment notice of the contemplated charges and the opportunity for his lawyer to present
his views to the grand jury in contravention of what Hill claimed is the DA’s office’s ″longstanding
practice.″ His allegations about the DA’s office’s motivations for prosecuting him amount to
speculation with no credible evidence to support his theories.

V.

HN8 There is an evidentiary [*36] threshold that must be met by the defendant before he is entitled
to an evidentiary hearing on his claims that he was prosecuted in violation of his constitutional rights.
See In re United States, 397 F.3d at 284. That burden requires a defendant to do more than make
unsupported allegations or speculative inferences about an improper motive. See Jennings, 724 F.2d at
445-46. Stated another way, before a defendant gets to make inquiries into the State’s decision to
prosecute, the defendant must support his allegations with evidence that tends to establish his
constitutional claims. See id.; see also Armstrong, 517 U.S. at 468. The record before us shows that
the trial judge granted Hill an evidentiary hearing so that Hill could ″try to prove″ that he was
prosecuted in violation of his constitutional rights. By conducting this evidentiary hearing before Hill
met the evidentiary threshold, the judge turned the standard around and put the burden on the State to
show why Watkins was not operating under a conflict of interest and how the prosecution of Hill was
not vindictive or selective.
We conclude Hill did not make the proper showing sufficient to establish a prima face case of his
alleged constitutional violations. Because Hill did not meet his burden, we also conclude the [*37] trial
judge erred in conducting a hearing on Hill’s motion to dismiss. Consequently, the charges against Hill
should not have been dismissed. We resolve the State’s second issue in its favor. Based on our
resolution of the State’s second issue, we need not address the State’s remaining issues. TEX. R. APP.
P. 47.1.
We vacate the trial judge’s order dismissing the indictments in these cases and remand the cases to the
trial court with instructions to reinstate the indictments against Hill.

                                               Page 16 of 29
                                   2014 Tex. App. LEXIS 13835, *37



/Ada Brown/
ADA BROWN
JUSTICE
Bridges, J., dissenting.
Do Not Publish

TEX. R. APP. P. 47.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00180-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00182-Q against Albert G. Hill III.

Judgment entered [*38] this 29th day of December, 2014.

JUDGMENT

Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00183-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

JUDGMENT
Based on the Court’s opinion of this date, we VACATE the trial court’s March 7, 2013 order granting
Albert G. Hill III’s motion to dismiss. We REMAND this cause to the trial court to reinstate the
indictment in trial court cause number F11-00191-Q against Albert G. Hill III.
Judgment entered this 29th day of December, 2014.

Dissent by: DAVID L. BRIDGES

Dissent

DISSENTING OPINION
Dissenting Opinion by Justice Bridges
                                             Page 17 of 29
                                      2014 Tex. App. LEXIS 13835, *38



I respectfully dissent from the majority’s opinion and judgment because I would conclude the trial
court did not abuse its discretion in conducting a hearing on Hill’s motion to dismiss and dismissing
with prejudice the indictments against Hill.
No appellate court in Texas has ever ruled that a trial court erred in conducting a hearing on a
defendant’s motion to dismiss charges on the basis they violated his constitutional rights. [*39] See,
e.g., State v. Dinur, 383 S.W.3d 695, 698-99 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (trial court
conducted hearing on appellant’s motion to dismiss charges against him on the basis of, among other
things, selective prosecution); Rodriguez v. State, 283 S.W.3d 465, 471-72 (Tex. App.—San Antonio
2009, pet. dism’d) (trial court conducted hearing on appellant’s claim, similar to claim of selective
prosecution, that trial court denied him equal protection, due process, equity, and fairness when it
dismissed a virtually identical bond forfeiture case against another defendant and his surety but did not
do the same for appellant); Galvan v. State, 988 S.W.2d 291, 293 (Tex. App.—Texarkana 1999, pet.
ref’d) (trial court conducted hearing on appellant’s motion to quash indictment on basis he was
selectively prosecuted for bail jumping due to his race and nationality); Amaya v. State, No.
08-11-00265-CR, 2013 Tex. App. LEXIS 12561, 2013 WL 5593110, at *7-9 (Tex. App.—El Paso Oct.
9, 2013, no pet.) (not designated for publication) (trial court conducted pretrial hearing on appellant’s
motion to dismiss alleging prosecutorial vindictiveness in that prosecutor offered appellant prison time
on a mandatory probation case following a motion to suppress hearing at which appellant did not
prevail); Roman v. State, No. 08-11-00057-CR, 2012 Tex. App. LEXIS 8849, 2012 WL 5287933, at *4-5
(Tex. App.—El Paso Oct. 24, 2012, no pet.) (not designated for publication) (trial court conducted
hearing on appellant’s motion to quash ″due to selective/vindictive prosecution″ supported only by
copy of information [*40] charging her with harassment, copy of citizen complaint form she filed
against detective, and track and confirm receipt from United States Postal Service).

Under article 28.01 of the code of criminal procedure, a trial court may set any criminal case for a
pretrial hearing at which it must determine ″preliminary matters,″ including a claim of prosecutorial
vindictiveness. See Neal v. State, 150 S.W.3d 169, 176 (Tex. Crim. App. 2004). The trial court’s
decision to conduct an evidentiary hearing and dismiss the indictments with prejudice is reviewed for
an abuse of discretion. See State v. Terrazas, 970 S.W.2d 157, 159 (Tex. App.—El Paso 1998), aff’d,
4 S.W.3d 720 (Tex. Crim. App. 1999).
Hill’s motion to quash and dismiss the indictments was based on the following facts: Hill and his father
were involved in ″a hotly-contested federal lawsuit involving multi-billion dollar trusts.″ In February
2010, the federal judge presiding over the case entered an order finding that Hill’s father had testified
falsely and submitted evidence in bad faith. Four days later, Hill’s father, through his lawyer, submitted
to the Dallas County District Attorney’s Office a letter accusing Hill and his wife of mortgage fraud.
In the months that followed, a law partner donated a total of $48,500 in three contributions to the
re-election campaign of Dallas District Attorney Craig Watkins. No member of this firm [*41] had
previously donated to Watkins’s campaign.
In May 2010, Lisa Blue saw a magazine article raising the question of whether the district attorney’s
office would ″go after″ Hill ″for shenanigans related to the house in which they live.″ The article
described the circumstances surrounding the same $500,000 loan that had been reported to the district
attorney. After Blue learned the investigation of Hill’s alleged criminal conduct had been leaked to the
press, she had a meeting with Terri Moore, First Assistant District Attorney at the time. Blue
recommended that Hill not be indicted. Watkins was not present at the meeting.

                                                Page 18 of 29
                                                2014 Tex. App. LEXIS 13835, *41



Also in May 2010, the federal trust litigation settled. Following the settlement, Blue and her colleagues
had a conflict with Hill over payment of more than $50 million in attorneys’ fees attributed to Blue’s
six-month representation of Hill. Because of the indictments, Hill felt he could not testify and invoked
his Fifth Amendment rights in the federal proceeding.

On January 20, 2011, Blue and Watkins met for dinner. Also in January 2011, while Blue was with
Steve Malouf, Watkins called Blue and said, ″There could be an indictment1 or are you still interested
in the indictments or . [*42] . . .″ On another occasion, the date of which Blue could not remember,
Watkins called Blue and again ″mentioned the Hills.″ Blue said, ″Craig, remember, I don’t represent
the Hills, so I can’t -- there’s nothing that I could talk about.″ Another lawyer was with Blue when she
received this second call.

Blue and Watkins exchanged numerous phone calls in March 2011. On March 3, 2011, Blue met with
Watkins to take publicity photos in connection with a $100,000 donation Blue made in his honor to
SMU law school in 2010. On March 9, 2011, Blue had a fundraiser for Watkins at her house and
contributed $5000 to Watkins. On March 22, 2011, Blue was deposed in connection with her fee
dispute with Hill. On March 30, 2011, Blue and Watkins again met for dinner. On March 31, 2011, the
Hills were indicted on charges of mortgage fraud. The indictments were made public two weeks before
the $50 million fee dispute trial.

On October 12, 2012, approximately eighteen months after the Hills were indicted, the Hills’ defense
counsel met with Assistant District Attorney Deborah Smith who described a ″reevaluation″ [*43] of
certain cases and said she had already decided to recommend dismissing certain charges against both
Hill and his wife. Smith ″expressed significant concerns about the cases against the Hills, made clear
that she had no role in obtaining the indictments, [and] said that the interviews of witnesses she was
conducting should have been conducted much earlier.″ Shortly after the meeting, the DA moved to
dismiss all charges against Hill’s wife ″in the interest of justice.″ On October 22, 2012, in response to
a follow-up email from Hill’s counsel, Smith wrote that she had been reassigned to prosecute animal
cruelty cases.

On February 14, 2013, the trial judge conducted a hearing on Hill’s motion to dismiss. The trial judge
stated she did not take her authority to dismiss a case filed by the prosecutor lightly and emphasized
the limited nature of that authority. The trial judge, over the State’s objection, called Blue as a witness.
Blue took the stand and invoked her Fifth Amendment right on all questions.

Hill’s attorney called Watkins to the stand. Counsel for the State objected on the basis of lawyer/client
privilege. Specifically, counsel argued the State of Texas was represented by the district attorney, [*44]
and the State therefore had a right to assert the privilege to prevent its lawyers from disclosing ″any
other fact which came to their knowledge by virtue of their representation of the State.″ Counsel for
the State argued conversations between Blue and Watkins were work product because they would
″reveal [Watkins’s] mental impression.″ The trial judge instructed the State to ″bring Mr. Watkins
down.″

An assistant district attorney entered the courtroom and stated she had spoken to Watkins, Watkins was
in the office, but Watkins was not going to make himself available. The trial judge asked if Watkins
1
    In 2014, the Dallas County District Attorney’s website said 100,000 cases are processed per year.

                                                             Page 19 of 29
                                      2014 Tex. App. LEXIS 13835, *44



was informed that the questions were going to be limited to his discussions with Blue. The assistant
district attorney stated she was not aware of that and further stated she knew ″[Watkins] to be ill,″ and
he was not ″in a condition to be able to testify in this matter.″ Following further discussion as to the
extent of Watkins’s illness and the fact that Watkins was under subpoena to testify, the trial judge
granted a continuance.

On March 7, 2013, the trial judge conducted a hearing at which Blue’s counsel stated Blue’s position
that ″she would assert her Fifth Amendment privilege today just as she [*45] had before.″ Hill called
Watkins as a witness and, after a private consultation with counsel, Watkins took the stand and refused
to answer any questions ″because of [his] right as an attorney to have the privilege and to protect [his]
work product.″ Following a discussion of whether any privilege had been waived by providing
affidavits of the people who worked for Watkins, the trial judge ordered Watkins to answer the
questions. Watkins refused, and the trial judge held him in contempt.

Hill was prepared to call witnesses to testify regarding the authenticity of the exhibits attached to his
motion to dismiss and certain other documents. Although it is not clear which exhibits were at issue,
counsel for the State agreed he was stipulating to the authenticity of the exhibits.

Terri Moore, a former Dallas assistant district attorney, testified Donna Strittmatter and Stephanie
Martin, two other assistant district attorneys, came to Moore and asked for permission to use the
resources of the office to investigate Hill. Moore inquired whether Hill’s father had made the
allegations against him, and Strittmatter and Martin told Moore ″there was a lawsuit between the father
and the son.″ Moore [*46] said, ″I’m sure dad is trying to get some kind of strategic advantage over
his son in the lawsuit, so be very, very skeptical of whatever he may have told you.″ Moore added, ″Be
careful, because [Hill’s father] is just using the office . . . .″

Strittmatter testified she attended the pitch session at which Watkins was present. Watkins did not say
anything about conversations with Blue regarding the Hills. Strittmatter testified Watkins’s only
involvement in preparing the case for the grand jury was that he was present at the pitch session. The
pitch session was in January 2011, and the case was presented to the grand jury approximately two and
a half months later.

Strittmatter testified Moore told her ″to be suspicious of the complaint″ she received from Hill’s father.
Strittmatter later learned the trust ″offered the bargain over a nonprosecution affidavit in this case″ so
that Hill would drop his claim for the assets of the trust. In investigating the case, Strittmatter
discovered the ″title agency missed something on the abstract of the property.″ When asked if she was
aware whether the Dallas County District Attorney’s Office had ″indicted a mortgage fraud case where
the loan was [*47] fully collateralized, paid as expected, and repaid in full and there was no complaint
from the bank, but it was indicted anyway,″ Strittmatter answered she ″was not aware because [she
had] not been the mortgage fraud prosecutor.″ When asked the same question again, Strittmatter
answered, ″I don’t know, but that doesn’t mean it hasn’t happened.″ When the trial judge asked if there
was a way to identify similar cases via computer, Strittmatter answered, ″We have a computer, but it
wouldn’t say that much detail, Your Honor. It’d really be the — the prosecutors’ individual memory.″

Martin testified that, on February 22, 2010, Strittmatter called her into a meeting with Lynn and gave
her a copy of a complaint alleging Hill had stolen from the trust ″because eighty percent of the house

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was put into a mortgage.″ Martin denied having ″concerns about a case in which the bank was not the
one that complained about the alleged fraud.″ Martin testified Moore told her to be suspicious of Hill’s
father. Martin testified that, from the moment she got the complaint and reviewed the exhibits, she
thought she had a good case and immediately started requesting original documents.

Martin invited Watkins [*48] to the pitch session because the case against Hill ″would get some media
attention, possibly national media attention.″ Martin testified that, if Watkins had told her ″this is too
much of a hot potato; let’s just let it go,″ she would not have put the case before the grand jury.

On redirect examination, Hill’s counsel showed Martin notes Martin identified as ″two different days
where I wrote notes about having talked to David Pickett.″ The first date was September 8, 2010, and
noted the following:

   David Pickett calls all the time. Investigation is slowly going, and I told him that. Today he
   wanted a definite timeline. I told him I can’t give you a timeline. I’ve got things to do on the
   case and haven’t done them because I’m getting ready for trial. He said Trust is actual victim
   after I told him bank really isn’t interested in prosecuting. Told him that in research I’d done,
   didn’t see how I could prove his criminal case at this time. He said he sent -- gave all that stuff
   to me. I said I’d go back and look, but getting ready for trial. He then sends e-mail. I showed
   it to Chief D. Strittmatter, and then she said to show to First Assistant Terri Moore so she would
   have all info, if needed. [*49] Took to Terri Moore, and she said, okay, in a few weeks call him
   to discuss the matter.

Upon further questioning, Martin testified the bank’s general counsel said ″we wouldn’t have filed a
complaint because we -- the loan got repaid, but she would do whatever [Martin] wanted her to do as
far as prosecuting the case because, by law, she has to.″ The trial judge, reading from Martin’s notes,
stated ″and then it goes on to say, I’ve talked to David Pickett multiple times since then. He was okay
with not indicting for the Trust as a victim because the bank is actual -- who was defrauded under the
fraud statutes and going forward with indictments.″ In response to questioning, Martin testified the part
of her note the trial judge read was ″probably″ added after Hill filed his motion to dismiss for
prosecutorial misconduct.

Thus, as the trial judge summarized the situation, the pitch session was held only because the case
against Hill was a potentially high publicity case; Martin invited Watkins to the pitch session and
would not have gone forward with the case against Hill without Watkins’s approval; the only person
who could know Watkins’s motivations was Watkins and, maybe, Blue; and neither [*50] Watkins nor
Blue were testifying. The trial judge gave Watkins another opportunity to come down and testify and
took a brief recess. When the hearing recommenced, counsel for the State told the trial judge Watkins
would not testify.

Following the presentation of evidence, the trial judge made an oral finding that, ″because of the failure
of Mr. Watkins to testify in this hearing, the Defendant has been denied his right to have a meaningful
hearing on his Motion to Dismiss.″ The trial judge then dismissed the cases. This appeal followed.

In its first two points of error, the State argues the trial court abused its discretion by granting Hill an
evidentiary hearing and dismissing the indictments against him because (1) Hill tendered no evidence

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to support his request and (2) the facts Hill alleged failed to establish a constitutional violation.
Specifically, the State challenges the trial judge’s decision to hold an evidentiary hearing on Hill’s
claims of prosecutorial misconduct in its first two issues. The State first complains about Hill’s proffer
of evidence in support of his motion. The State argues that Hill needed to present evidence to support
his claims before he was entitled [*51] to an evidentiary hearing and, because Hill ″simply made
unsworn allegations″ in his motion and ″attached a stack of unauthenticated documents″ as exhibits,
he basically provided no evidence to support his central allegations. The State asserts that, under
United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996), the judge had
to presume Watkins acted in good faith until Hill presented clear evidence to the contrary, and the
presentation of such evidence was a condition that must be met before receiving an evidentiary
hearing. The State contends that, because Hill tendered no evidence (other than some trial transcripts
and deposition testimony, both of which the State argues are not clear evidence sufficient to dispel the
presumption the prosecutor acted with a proper motive), the trial judge erred in conducting the
evidentiary hearing. In response, Hill states the facts cast doubt on the constitutionality of the
prosecution and not only entitle him to an evidentiary hearing but also establish a prima facie showing
of prosecutorial misconduct.

The trial court’s decision to conduct an evidentiary hearing and dismiss the indictments with prejudice
is reviewed for an abuse of discretion. See Terrazas, 970 S.W.2d at 159. The test for whether the trial
court abused its [*52] discretion is whether the action was arbitrary or unreasonable. State v. Mechler,
153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The trial court does not abuse its discretion unless its
determination lies outside the zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736
(Tex. Crim. App. 2010).

Selective prosecution and vindictive prosecution are not defenses on the merits to the criminal charge
but independent assertions that the prosecutor has brought the charge for reasons the Constitution
prohibits. See Armstrong, 517 U.S. at 463; Ex Parte Quintana, 346 S.W.3d 681, 685 (Tex. App.—El
Paso 2009, pet. ref’d). Generally, prosecutors have broad discretion in enforcing criminal laws. See
Neal, 150 S.W.3d at 173. But selective prosecution does limit a prosecutor’s otherwise broad discretion
in determining what crimes to prosecute and how. Quintana, 346 S.W.3d at 685; see Roise v. State, 7
S.W.3d 225, 242-43 (Tex. App.—Austin 1999, pet. ref’d).

A defendant who believes he is subjected to selective prosecution bears the burden of proving
purposeful discrimination. See Green v. State, 934 S.W.2d 92, 103 (Tex. Crim. App. 1996). This burden
falls on the defendant because the presumption is that a prosecution for a violation of a criminal law
is taken upon in ″good faith and in nondiscriminatory fashion″ to bring violators to justice. See Gawlik
v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); Garcia v. State, 172 S.W.3d 270, 273 (Tex.
App.—El Paso 2005, no pet.). To establish a prima facie case, the defendant must show that: (1) the
government has singled him out for prosecution even though the government has not proceeded against
others similarly situated based on the type of conduct for which [*53] he is charged; and (2) the
government’s discriminatory selection is invidious, which means that the selection is based on
impermissible considerations such as race, religion, or the desire to prevent his exercise of
constitutional rights or based on some arbitrary classification. Quintana, 346 S.W.3d at 685; Garcia,
172 S.W.3d at 273-74. The defendant must provide ″exceptionally clear″ evidence that the decision to
prosecute was for an improper reason to establish a prima facie case of selective prosecution. See

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Garcia, 172 S.W.3d at 274. Once the defendant makes a clear showing of an Equal Protection violation,
the burden shifts to the State to justify the discriminatory treatment. See Johnson v. California, 543
U.S. 499, 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Quintana, 346 S.W.3d at 685. However, the
Equal Protection clauses of the United States and Texas Constitutions only require a rational basis for
the distinction unless it discriminates against a suspect class or impinges on a fundamental right. See
Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995).

A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways:
(1) proof of circumstances that pose a ″realistic likelihood″ of such misconduct sufficient to raise a
″presumption of prosecutorial vindictiveness,″ which the State must rebut or face dismissal of the
charges; or (2) proof of ″actual vindictiveness″ — that is, direct evidence [*54] that the prosecutor’s
charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a
protected legal right. Neal, 150 S.W.3d at 173. Under the first prong, if the State pursues increased
charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and
obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. Id.
(citing Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)). In the very few
situations in which this presumption does apply, it can be overcome by objective evidence in the record
justifying the prosecutor’s action. Id. at 173-74.

Under the second prong, when the presumption does not apply, the defendant may still obtain relief if
he can show actual vindictiveness. Id. at 174. To establish that claim, a defendant must prove, with
objective evidence, that the prosecutor’s charging decision was a ″direct and unjustifiable penalty″ that
resulted ″solely from the defendant’s exercise of a protected legal right.″ Id. Under this prong, the
defendant shoulders the burden of both production and persuasion, unaided by any legal presumption.
Id. Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility
determinations. [*55] Id. at 174-75. Under either prong, ″[i]f the defendant is unable to prove actual
vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of
government justification.″ Id. at 175. That is, the State may stand mute unless and until the defendant
carries his burden of proof under either prong. Id.

A trial judge’s limited authority to dismiss an indictment stems in part from the fact that the decision
of whether to prosecute is a core executive constitutional function. Armstrong, 517 U.S. at 464-65. And
because this power is within the province of the State, the State enjoys considerable discretion in
deciding whether or not to prosecute and what charge to file or bring to the grand jury. Wayte v. United
States, 470 U.S. 598, 607, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985); Bordenkircher v. Hayes, 434 U.S.
357, 364, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978); see also Neal, 150 S.W.3d at 173. As a result of that
discretion, our consideration of Hill’s claims begins with a ″presumption of regularity.″ That means we
presume the State made its decision to prosecute Hill in good faith and in compliance with the
Constitution. Armstrong, 517 U.S. at 465-66; Neal, 150 S.W.3d at 173.

Because courts are hesitant to interfere with the State’s exercise of its discretion to prosecute, a
defendant challenging the State’s decision to prosecute him must make out a prima facie showing that
he has been prosecuted in violation of his constitutional rights. [*56] United States v. Webster, 162 F.3d
308, 333-34 (5th Cir. 1999). To do this, he must ″dispel the presumption of good faith″ and
constitutional compliance by presenting ″’clear evidence to the contrary.’″ Id. at 334 (quoting
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Armstrong, 517 U.S. at 465); see also Armstrong, 517 U.S. at 464 (because prosecutors are afforded
a ″background presumption,″ the necessary showing ″to obtain discovery should itself be a significant
barrier to the litigation of insubstantial claims″); Garcia, 172 S.W.3d at 274 (appellant ″claiming
selective prosecution must come forth with ’exceptionally clear evidence’ that the prosecution was
initiated for an improper reason.″).

Importantly, a defendant who claims his constitutional rights were violated by some form of
prosecutorial misconduct ″is not automatically entitled to an evidentiary hearing to make the required
showing.″ Webster, 162 F.3d at 334. Rather, he must ″present facts ’sufficient to create a reasonable
doubt about the constitutionality of [his] prosecution’ . . . .″ Id. (quoting United States v. Jennings, 724
F.2d 436, 445-46 (5th Cir. 1986)); see also United States v. Cervantes, 132 F.3d 1106, 1111 n.4 (5th
Cir. 1981) (explaining that defendant is entitled to an evidentiary hearing related to constitutionality
of his prosecution ″only if the existing record proves the likely merit of [his] specific allegations″). The
″facts″ required to cast doubt about the constitutionality of the prosecution and rebut the presumption
the State acted in [*57] good faith such that a person is entitled to an evidentiary hearing (or even
discovery) must be more than allegations. See Jennings, 724 F.2d at 445-46 (motion containing broad,
generalized allegations did not offer facts to the court to warrant evidentiary hearing); see also Wade
v. United States, 504 U.S. 181, 186, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992) (stating that ″generalized
allegations of improper motive″ are not enough to entitle a defendant to a remedy, discovery, or
evidentiary hearing); United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008) (″Generalized
allegations of improper motive do not disturb the presumption of regularity.″).

A defendant also is not automatically entitled to discovery to obtain information about the
prosecutorial motive; the requisite threshold to obtain discovery on such claims requires the person to
produce ″some evidence tending to show the existence of the essential elements″ of the claimed
violations. Armstrong, 517 U.S. at 468. The standard for obtaining discovery in aid of such claims is
″rigorous″ and complements the ″rigorous standard″ for proving constitutional violations in the
decision to prosecute. Id.

I agree with the State’s contention that a criminal defendant is not entitled to probe prosecutorial
motive absent clear evidence establishing a prima facie case of a constitutional violation. See In re
United States, 397 F.3d 274, 284 (5th Cir. 2005). I also agree that the [*58] governing legal principles
outlined above contemplate an initial evidentiary tender by Hill to displace the presumption the
prosecutor acted in good faith. See Armstrong, 517 U.S. at 465; Webster, 162 F.3d at 334. I disagree,
however, with the State’s first argument that Hill provided ″no evidence″ with his motion in support
of his claims.

Hill alleged in his motion that the influence exercised upon Watkins by Hill’s father, his father’s
lawyer, and Blue deprived him of due process. He explained that Watkins had ″a financial stake in the
prosecution of the Hills″ because indicting them benefited Blue (who was involved in a dispute with
the Hills over attorneys’ fees) and counsel for his father (who also was a major campaign contributor)
″which in turn benefited″ Watkins. Hill claimed Blue’s influence and involvement with the indictment
process were demonstrated by Blue’s admission that Watkins contacted her two times before the
indictments were returned and the pattern of phone calls and text messages exchanged between Blue
and Watkins (and others in the DA’s office) in the weeks before the indictments were returned.

                                                 Page 24 of 29
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In his motion, Hill argued that, to prevail on his vindictive prosecution claim, he was required to show
that (1) ″the [*59] prosecutor harbored genuine animus toward the defendant, or was prevailed upon
to bring the charges by another with animus such that the prosecutor could be considered a ’stalking
horse’″ and (2) ″he would not have been prosecuted except for the animus.″ United States v. Koh, 199
F.3d 632, 640 (2d Cir. 1999). Hill alleged that the decision to prosecute him was prompted by the anger
of his father after receiving an adverse ruling in the trust litigation and the animus of Blue in the
fee-dispute litigation. He also maintained that the

   timing, circumstances, and unusual if not unprecedented nature of the Hill indictments make
   abundantly clear that the real motivation of these indictments was to benefit [Watkins’s]
   prolific campaign contributor [his father’s lawyer’s law partner], and to assist [Watkins’s]
   friend and benefactor, [Blue] by impairing the Hills’ ability to contest [Blue’s] enormous fee
   claims.

He claimed such animus was demonstrated by the improprieties inherent in the indictments (such as
his denial of any pre-indictment notice or opportunity to be heard by the Grand Jury), the
″unprecedented nature″ of the charges, and Hill’s understanding that the DA’s office did not conduct
a thorough investigation before indicting him. Hill’s [*60] third allegation was that the indictments
should be dismissed because he was denied equal protection under the law when he was prosecuted
under circumstances that do not normally lead to criminal prosecution and when he was denied the
benefit of pre-indictment notice.

The State concedes Blue’s deposition testimony that Watkins called her two times regarding the Hill
indictments was evidence. Attached to Hill’s motion to dismiss were exhibits including a complaint
from Hill’s father’s attorney that the Hills committed mortgage fraud; excerpts from Watkins’s
campaign finance reports; emails between Blue, Hill, Malouf, and Charla Aldous; excerpts from Blue’s
deposition; and the indictments against the Hills. The record reflects that the State did not object to the
numerous exhibits attached to Hill’s motion to dismiss. Instead, the State filed a response to the merits
of Hill’s assertions contained in Hill’s motion, appeared at the hearing on Hill’s motion, and ended up
stipulating to the authenticity of the exhibits. Further, Blue took the Fifth and refused to testify
concerning her conversations with Watkins, which creates an adverse inference against the State. An
adverse inference [*61] may not be drawn from a defendant’s proper invocation of a privilege because
in a criminal case ″the stakes are higher and the State’s sole interest is to convict.″ Baxter v.
Palmigiano, 425 U.S. 308, 318-19, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). However, the danger of
unfair prejudice is not the same when it is the defense rather than the State that seeks to draw an
inference from a witness’s invocation of privilege. I would reject the State’s argument, made for the
first time on appeal, that the exhibits were ″no evidence,″ see TEX. R. APP. P. 33.1(a), and overrule the
State’s first issue.

In its second issue, the State argues Hill failed to make a prima facie case of a constitutional violation.
At the hearing on Hill’s motion to dismiss, the State made this same argument. However, the State
raised this issue after the hearing had begun and after the trial judge determined Hill had already
established a prima facie case. A review of the record shows the first thing the trial judge did at the
February 14 hearing was address the court’s power to dismiss the indictments against Hill. No new
evidence was presented at the February 14 hearing. In response to the State’s argument that Hill
                                                Page 25 of 29
                                       2014 Tex. App. LEXIS 13835, *61



″want[ed] information″ and ″that’s just discovery under 39.14,″ the trial judge questioned how [*62]
Hill could ″just want information″ when ″[Hill had] already provided, in the opinion of this Court,
sufficient information.″ Later in the hearing, the trial judge specifically stated that ″civil lawyers in a
couple weeks ahead of time [of the indictments] making huge contributions to the District Attorney,
and you have admissions by Ms. Blue that she discussed the indictments with Mr. Watkins″ established
a prima facie case to support the motion to dismiss. Another time, the trial judge stated, ″This is a
hearing on a motion to dismiss or a motion to quash,″ and Hill ″presented sufficient evidence to the
Court in the form of their motion to dismiss and the response . . . to the State’s objections that I believe
rise to the level of a prima facie showing.″

Thus, the record shows the trial judge made a determination that Hill established a prima facie case
before the hearing on February 14. The trial judge began the hearing by questioning the court’s
authority to dismiss the indictments against Hill, not by addressing the issue of whether Hill made a
prima facie showing of a constitutional violation. The trial judge’s references to a ″hearing″ to follow
referred to a hearing on specific [*63] issues the trial judge identified, not the issue of a prima facie
case. Notably, the February 14 hearing was continued due to Watkins’s refusal to appear, necessitating
further ″hearings″ on the dismissal issue.

The gist of the allegations presented in Hill’s motion is that there was an untoward interest in indicting
him. He specifically claimed he was deprived of his right to a disinterested prosecutor and that he had
been vindictively and selectively prosecuted. As proof of the alleged constitutional violations, Hill
emphasized in his motion the following: (1) Watkins’s campaign records showing political contributions
from a lawyer associated with his father in the months after the February 2010 complaint and five
months before the indictments were returned and a donation by Blue less than a month before the
indictments; (2) information showing that Blue hosted a fundraiser for Watkins in the month before the
indictments; (3) the ″unusual″ nature of the charges against him; (4) the lack of notice to him that
indictments were being considered; (5) the suspect timing of the indictments in that they were returned
just before the fee-dispute trial involving Blue, which Hill claimed prevented [*64] him and his wife
from testifying in that trial; (6) Blue’s telephone records and text message logs, which Hill claimed
show a ″heated exchange″ of communications with Watkins and his office in the weeks leading up to
the indictments and ending after the indictments were returned; (7) Blue’s admission during her
depositions that she discussed indictments with Watkins in the time before they were returned; (8)
Blue’s comment made in her deposition that she would have no reason to discuss indictments with
Watkins after they were returned; (9) Blue’s close relationship with Watkins; (10) defense counsel’s
meeting with Smith about the charges; and (11) the fact that the charges against Hill’s wife were
dismissed. In addition, the trial judge heard from the district attorney’s office that they did not initially
think this was a good case, and the trial judge noted Martin was impeached with her own notes.

I would conclude the trial judge did not abuse her discretion in determining these facts establish a
prima facie case of a selective prosecution, vindictive prosecution, and absence of an impartial and
disinterested prosecutor. See Terrazas, 970 S.W.2d at 159. The evidence presented by Hill amounted
to ″more than allegations.″ [*65] See Jennings, 724 F.2d at 445-46. By conducting a hearing after Hill
made a prima facie case of a constitutional violation, the trial judge correctly shifted the inquiry to
whether the State could produce evidence showing why the prosecution of Hill was not vindictive or
selective or undertaken by an impartial and disinterested prosecutor. See Neal, 150 S.W.3d at 173.

                                                 Page 26 of 29
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Following the State’s failure to present evidence from Watkins or Blue to rebut Hill’s prima facie case,
the trial judge did not abuse her discretion in dismissing the indictments against Hill. Id. at 173-75. I
would overrule the State’s second issue.

In its third issue, the State argues the trial judge abused her discretion by compelling Watkins to testify
and then dismissing the indictments based on his refusal to testify. Specifically, the State argues Hill
was attempting to ″invade protected work product″ by seeking to discover the basis for Watkins’s
decision to seek indictments against Hill.

In its response to Hill’s motion to dismiss, the State asserted Hill’s argument assumed the district
attorney was not free to discuss these crimes or his investigation with others or, more particularly, Blue.
The State argued Hill’s assumption is false and argued that, even if the district [*66] attorney spoke
to Blue about Hill’s cases every single time the two communicated, there was nothing improper about
it. As the county’s prosecuting authority, the district attorney is obligated to investigate allegations of
criminal activity and, according to the State, any source that could inform his decision about whether
to prosecute and what to prosecute an individual for is fair game. The State argued it would be
reasonable for the district attorney to conclude that Blue’s prior relationship with Hill, which was both
personal and professional, made her a potential source of reliable information.

Again, nowhere in its response did the State challenge the authenticity or veracity of any of the exhibits
attached to Hill’s motion to dismiss or argue that Hill’s motion failed to make out a prima facie
showing that he had been prosecuted in violation of his constitutional rights. Further, the record shows
the State subsequently stipulated to the authenticity of the exhibits at a later hearing.

Work product comprises:

   (1) material prepared or mental impressions developed in anticipation of litigation or for trial
   by or for a party or a party’s representatives, including the party’s attorneys, [*67] consultants,
   sureties, indemnitors, insurers, employees, or agents; or
   (2) a communication made in anticipation of litigation or for trial between a party and the
   party’s representatives or among a party’s representatives, including the party’s attorneys,
   consultants, sureties, indemnitors, insurers, employees, or agents.

TEX. R. CIV. P. 192.5. The work product of an attorney or an attorney’s representative that contains the
attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal
theories is not discoverable. Id. ″The primary purpose of the work product rule is to shelter the mental
processes, conclusions, and legal theories of the attorney, providing a privileged area within which the
lawyer can analyze and prepare his or her case.″ Owens Corning Fiberglas Corp. v. Caldwell, 818
S.W.2d 749, 750 (Tex. 1991).

Our evidence rules provide, however, that a privilege can be waived:

   A person upon whom these rules confer a privilege against disclosure waives the privilege if:
   (1) the person or a predecessor of the person while holder of the privilege voluntarily discloses
   or consents to disclosure of any significant part of the privileged matter unless such disclosure
   itself is privileged.

                                                Page 27 of 29
                                      2014 Tex. App. LEXIS 13835, *67



TEX. R. EVID. 511(1); Jones v. State, 181 S.W.3d 875, 878 (Tex. App.—Dallas 2006, pet. ref’d). The State
in this case did [*68] not raise any privilege or work product objections during the testimony of Moore,
Strittmatter, or Martin. Through their collective testimony, the State allowed extensive evidence
concerning the decision-making process before and during the events leading up to Hill’s indictments.
Thus, any claim of privilege related to that process was waived. See TEX. R. EVID. 511(1); Jones, 181
S.W.3d at 878.

Rule 1.05 of the Texas Rules of Disciplinary Procedure is pertinent to the issue of whether Watkins
legitimately could solicit information from Blue concerning whether to indict Hill. Rule 1.05 provides:

   [A] lawyer shall not knowingly . . . (2) [u]se confidential information of a client to the
   disadvantage of the client unless the client consents after consultation [or] (3) [u]se confidential
   information of a former client to the disadvantage of the former client after the representation
   is concluded unless the former client consents after consultation or the confidential information
   has become generally known.

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05(b), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A
(West 2005) (TEX. STATE BAR R. art. X, § 9).
One of the primary purposes of the Sixth Amendment right to counsel is to preserve the integrity of
the attorney-client relationship once it has been established. State v. Frye, 897 S.W.2d 324, 327 (Tex.
Crim. App. 1995) (citing Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)).
Both the court of [*69] criminal appeals and the United States Supreme Court have declared once an
accused has a lawyer, ″a distinct set of constitutional safeguards aimed at preserving the sanctity of the
attorney-client relationship takes effect.″ Id.
Here, Watkins’s communication with Blue concerning Hill could have been a purely innocent inquiry
into whether Blue, his personal friend, was simply ″interested″ in what was going on with Hill, in
which case the inquiry would have had nothing to do with ″a communication made in anticipation of
litigation or for trial″ and would not have constituted work product. The communication could have
been an inquiry of Blue as a ″potential source of reliable information″ against Hill, in which case the
communication would have violated rule 1.05. Or the communication could have been an inquiry into
whether Blue, who had formerly urged the district attorney’s office not to indict Hill while she
represented Hill, was ″still interested″ in preventing the indictments now that she was seeking in excess
of $50 million in attorney’s fees from Hill. In that case, the characterization of Watkins’s
communication as ″a communication made in anticipation of litigation or for trial″ cannot [*70] stand;
the purpose of the communication in that case would be to violate Hill’s constitutional rights under the
guise of legitimate ″prosecution.″ None of these possibilities support the State’s theory that Watkins’s
communication with Blue concerning the Hill indictments fit within the definition of work product. I
would overrule the State’s third issue.
In its fourth issue, the State argues the trial judge abused her discretion by dismissing the indictments
with prejudice. The State argues dismissal without prejudice would have cured the claimed
constitutional violations.
Dismissal with prejudice may be warranted when a defendant suffers demonstrable prejudice, or a
substantial threat thereof, and where the trial court is unable to ″identify and neutralize the taint″ by

                                                Page 28 of 29
                                      2014 Tex. App. LEXIS 13835, *70



other means. Frye, 897 S.W.2d at 330. Here, the evidence supported the trial judge’s determination that
Hill established a prima facie case his constitutional rights were violated, and the State presented no
evidence enabling the trial judge to ″identify and neutralize the taint.″ See id. It was for the trial judge
to decide the ultimate factual issue based upon the evidence and credibility determinations. Neal, 150
S.W.3d at 174-75. I would conclude the trial judge [*71] did not abuse her discretion in dismissing the
indictments with prejudice. I would overrule the State’s fourth issue.

I would affirm the trial judge’s order dismissing the indictments in these cases.

DAVID L. BRIDGES

JUSTICE




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