CONCUR; and Opinion Filed August 15, 2018.




                                                                     In The
                                             Court of Appeals
                                      Fifth District of Texas at Dallas
                                                          No. 05-13-00421-CR
                                                          No. 05-13-00423-CR
                                                          No. 05-13-00424-CR
                                                          No. 05-13-00425-CR
                                             THE STATE OF TEXAS, Appellant
                                                         V.
                                              ALBERT G. HILL III, Appellee

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

                              CONCURRING OPINION ON REMAND
                                        Before Justices Bridges, Brown, and Schenck
                                          Concurring Opinion by Justice Schenck
           I concur with the majority and write separately to explain why, in addition to the grounds

identified by the majority, I believe that the Due Process Clause provides another independent and

direct basis by which Hill’s indictments are justifiably dismissed, and to amplify why I support the

decision to dismiss with—rather than without—prejudice in view of the relative dearth of authority

under Texas case law.1




     1
       The majority cites Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004), and In re Guerra, 235 S.W.3d 392, 429 (Tex. App.—Corpus
Christi 2007, orig. proceeding), in support of the conclusion that dismissal is proper. To be clear, I agree that Neal and Guerra support that
conclusion, although they only directly address prosecutions for vindictiveness (Neal) or conflicts of interest (Guerra), both of which the trial court
may have properly found here. I believe that conclusion is directly supported by due process considerations outlined in Caperton v. Massey Coal,
556 U.S. 869 (2009), and within the reach of State v. Mungia, 119 S.W.3d 814, 816–17 (Tex. Crim. App. 2003), which acknowledged other
circumstances beyond vindictiveness and conflict of interest would support dismissal.
           The record reflects that these cases began with a financial grievance between a father and

son. It was Hill’s father, not any victim or complainant, who submitted to the district attorney’s

office a letter accusing Hill and his wife of mortgage fraud. Further, there was evidence a law

partner of Hill’s father’s counsel donated a total of $48,500 to Watkins’s campaign. After Hill

and his father settled their dispute, Hill became embroiled in a dispute with his former legal

counsel, Lisa Blue, over more than $50 million in attorney’s fees attributed to her representation

of him. In the months leading up to Hill’s indictments, Watkins called Blue to discuss “the Hills”

and asked if she was “still interested in the indictments,” and Blue held a fundraiser for Watkins

and made sizeable, lawful contributions to him as her fee dispute with Hill proceeded to trial. In

his motion to quash or dismiss the indictments, Hill presented evidence, presumably credited by

the trial judge sitting as finder of fact,2 indicating that Watkins pursued the indictments in

retaliation for the civil litigations involving Hill’s father and Blue, that a public servant made

himself available to influence, and that the charges against him would not have been pursued other

than as a political favor by the district attorney. When called to testify at the hearing on Hill’s

motion to dismiss, Blue invoked her Fifth Amendment right on all questions. Watkins first failed

to appear and ultimately refused to answer any questions, invoking specious attorney–client

privilege and work-product immunity objections.

           Due Process

           Texas elects its district attorneys on a partisan basis and leaves them to finance their

campaigns from members of the general public, a tiny percentage of whom decide, for their own

reasons, to contribute. Barring the explicit quid pro quo to constitute a “bilateral agreement” at



      2
        As noted in the Court’s opinion, the trial court found the evidence sufficient to take the unusual step of conducting a hearing into the district
attorney’s charging decision. Ultimately, owing to obstruction and obfuscation of that effort, the trial judge dismissed the indictments for
confounding that hearing. As the trial court found facts sufficient to warrant the hearing and ultimately entered judgment dismissing the indictments
without making proper findings of fact or conclusions of law, we must view the facts in a manner supportive of that judgment. See Lerma v. State,
543 S.W.3d 184, 190 (Tex. Crim. App. 2018).

                                                                         –2–
the time the money changes hands, there is generally no offense in a citizen lawfully contributing

to an official’s political campaign or otherwise engendering good will. See, e.g., McCallum v.

State, 686 S.W.2d 132, 139 (Tex. Crim. App. 1985). The problem, of course, as this case

illustrates, is that the public official is obliged, thereafter, to discharge his duties impartially and

in a manner consistent with due process and other rights of the parties affected by his or her

decisions. The trial court was presented with evidence supporting the inference that the charging

decision in these cases was rendered as a perceived favor to influential political contributors and

would not otherwise have been pursued. See Lerma, 543 S.W.3d at 190 (reviewing court should

construe inferences reasonably supported by the evidence in favor of the resulting judgment where

no proper findings of fact obtain); cf. State v. Terrazas, 962 S.W.2d 38, 45 (Tex. Crim. App. 1998)

(Keller, J. dissenting) (urging that “[p]rosecutorial misconduct rises to the level of a due process

violation . . . if it significantly compromises the fundamental fairness of the proceedings” and

where compensation scheme influences decision to prosecute).

       The Supreme Court has struggled to delineate the outer limits of the improper influence

concern insofar as it applies to elected judges, settling on an objective standard that avoids the

question of whether the judge was actually biased in rendering a decision in favor of a contributor,

posing the question as whether an objectively reasonable jurist under similar circumstances would

be likely to be improperly influenced. Caperton v. Massey Coal, 556 U.S. 869, 886 (2009). While

the prospect of a compromised judge is worrying enough, a trial judge’s discretionary judgments

are subject to review and correction on appeal, and appellate panels are themselves comprised of

multiple members, offering greater assurance of independent review. A prosecutor, on the other

hand, stands alone with largely unfettered charging discretion that, but for the highly unusual

circumstances of cases like this one, is necessarily beyond any generalized form of meaningful

judicial scrutiny. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 296, 311–312 (1987).

                                                 –3–
       The record supports a conclusion that an objectively reasonable prosecutor under

circumstances similar to those presented here would likely be improperly influenced. While

political contributions within statutory limits are both lawful and regular, the concern here is not

with Hill’s father’s counsel and Blue’s decisions to support Watkins’s campaign or promote his

career, which they had every right to do. Rather, the concern is with the prosecutor himself and

his apparent eagerness to curry Blue’s favor, even going so far as to explicitly suggest “[t]here

could be an indictment or are you still interested,” while knowing of the ongoing $50 million fee

dispute between Blue and Hill. Further, Watkins was alerted to the alleged mortgage fraud by

Hill’s father, rather than a crime victim, and the record contains the testimony of career

prosecutors, whom the record does not reflect solicited or otherwise received improper influence,

as to the tenuous nature of the case against Hill. From these facts, I agree with the majority that

the trial judge could have readily based her decision on the grounds of vindictive prosecution and

conflict of interest, given the competing interests of which Watkins appears to have been

solicitous. But I believe that the due process violation as recognized in Massey Coal could serve

as an independent and direct ground for dismissal. See Massey Coal, 556 U.S. at 886. A

reasonable prosecutor, knowing of the facts known to Watkins prior to the time he approached the

grand jury seeking the indictments, would have recognized he harbored a disposition of a kind that

a fair-minded person could not set aside. See id. at 889.

       Dismissal with Prejudice

       I also write separately to explain why dismissal with prejudice is proper under the

circumstances presented in this case: no complaint from the potentially aggrieved financial

institution, no investigation outside the district attorney’s office, non-elected prosecutorial staff

signaling no cause to indict, and a district attorney openly signaling his amenability to outside

influence. As noted, the Court’s opinion examines the issues largely through the lens of selective

                                                –4–
prosecution and conflict of interest jurisprudence developed before Massey Coal’s due process

holding. 556 U.S. 869. I agree that those cases fit our situation, though less directly than Massey

Coal’s standard of objectivity. On this latter standard, with our own jurisdiction, I believe it to be

useful to examine how the question of dismissal with or without prejudice has been addressed in

other jurisdictions that have confronted prosecutorial misconduct in a variety of settings, including

a denial of due process. As detailed below, those cases can be read to support dismissal with

prejudice where the misconduct is so egregious by its nature that a meaningful remedy is necessary

to deter like misconduct or where, but for the misconduct, there would be no case to pursue. As

either of those circumstances could be found to obtain here, we have no occasion to choose

between them.

         The highest court in Massachusetts faced somewhat similar circumstances in

Commonwealth v. Manning where two federal officers working closely with a state prosecutor

disparaged a defendant’s counsel in an attempt to induce him to become an informant in their

ongoing investigation of his client. Commonwealth v. Manning, 367 N.E.2d 635, 636–37 (Mass.

1977).    The Supreme Judicial Court of Massachusetts concluded that, rather than crafting a

balancing test, when there is a deliberate and intentional attack by government agents on the

relationship between a defendant and his counsel, “[t]he focus must be rather on the remedy

necessary to cure the impairment.” Id. at 638. While the court rejected a per se rule, it found

“[t]he indictment itself is so inextricably interwoven with the misconduct which preceded it that

the only appropriate remedy here is to dismiss the indictment.”           Id. at 639.    Since then,

Massachusetts courts have developed some guidance on reviewing motions to dismiss with

prejudice. A prosecutor’s misconduct that is “egregious, deliberate, and intentional, or that results

in a violation of constitutional rights” may give rise to presumptive prejudice such that dismissal

with prejudice is the appropriate remedy. See Commonwealth v. Cronk, 484 N.E.2d 1330, 1334

                                                 –5–
(Mass. 1985). In deciding whether to dismiss with or without prejudice, courts must balance the

defendant’s rights against the need to preserve society’s interest in the administration of justice.

Id. at 1334. In Commonwealth v. Cronk, the court concluded the prosecutor’s repeated failure to

promptly comply with discovery orders was found to be inexcusable, but because the conduct

appeared to be unintentional and occurred before trial was scheduled, the court remanded the case

to the trial court for findings on whether the prosecutor’s misconduct caused such irreparable

prejudice that the defendant could not receive a fair trial if the complaint were reinstated. Id. at

1335.

        The Ninth Circuit has also confronted this question in several opinions. It permits trial

courts to dismiss indictments with prejudice under one of two theories: (1) “flagrant” government

conduct that amounts to a due process violation that presumably requires dismissal with prejudice

as a systemic deterrent or (2) as an expression of the court’s supervisory powers to remedy a

violation of a recognized statutory or constitutional right, to preserve judicial integrity by ensuring

that a conviction rests on appropriate considerations validly before the jury, and to deter future

illegal conduct. See United States v. Chapman, 524 F.3d 1073, 1084–85 (9th Cir. 2008). While

accidental or negligent conduct is insufficient to establish flagrant misbehavior, reckless disregard

for the prosecution’s constitutional obligations may be sufficient. Id. at 1085. Additionally, a

court may dismiss an indictment under its supervisory powers only when the defendant suffers

substantial prejudice and when no lesser remedial action is available. Id. at 1087. The Ninth

Circuit further noted that the trial court is in the best position to evaluate the strength of the

prosecution’s case and to gauge the prejudicial effect of a future trial. Id. Finally, in determining

the proper remedy for prosecutorial misconduct, the court must consider the government’s

willfulness in committing the misconduct and its willingness to take ownership of it. Id.




                                                 –6–
       The Ninth Circuit has also upheld dismissal with prejudice as a remedy for what amounts

to discovery abuse, a form of misconduct that is less structural in its nature than the misconduct at

issue here. In United States v. Chapman, the prosecutor failed to keep a log of what had been

disclosed among hundreds of thousands of pages of discovery and repeatedly represented to the

trial court that he had fully complied with his obligation to disclose potentially exculpatory

evidence to the defense when there was no way he could have verified that claim. Id. at 1085.

Although the prosecution received several indications that there were problems with its discovery

production, it did nothing to ensure proper disclosure until the court insisted it produce verification

of such. Id. Additionally, the trial court noted the prosecutor demonstrated little remorse when

his misconduct was discovered, and the appellate court noted that the government’s actions on

appeal to minimize its misconduct and defend its actions “only reinforce[d] our conclusion that it

still has failed to grasp the severity of the prosecutorial misconduct involved here.” Id. at 1088.

Under these circumstances, the Ninth Circuit affirmed the trial court’s decision to dismiss the

indictment with prejudice. Id. at 1090.

       In United States v. Govey, a federal district court addressed not only deliberate indifference

and reckless disregard for a prosecutor’s constitutional discovery obligations, but also allegations

that investigating officers convinced the federal government to prosecute the defendant in

retaliation for the defendant’s involvement in a scandal involving the investigating officers

themselves. United States v. Govey, 284 F. Supp. 3d 1054, 1058, 1061 (C.D. Cal. 2018), appeal

docketed, No. 18-50098 (9th Cir. Mar. 22, 2018). In Govey, the defendant was charged with

possession of methamphetamine and counterfeiting obligations of the United States. Id. at 1057–

58. The defendant’s principal defense against the charges was that the critical trial witnesses,

namely the investigating officers, had a motive and bias to overstate the evidence against the

defendant because of his history with them, including a department-wide scandal involving illegal

                                                 –7–
inmate informants. Id. at 1057. The defendant requested disclosures from the government

regarding the witnesses and the inmate informant scandal, but the government resisted and stalled,

even after the trial court ordered the prosecutor to disclose. Id. at 1059–61. The district court

found the government repeatedly failed to meet its discovery obligations and continued to engage

in misconduct even after obtaining the material evidence by producing it in a manner that

demonstrated blatant indifference and reckless disregard for the defendant’s ability to use the

materials at trial. Id. at 1062. The district court further found that the government’s misconduct

compromised the defendant’s right to present his defense and that any lesser remedy than dismissal

with prejudice would constitute an endorsement of the government’s misconduct, unwillingness

to take responsibility for its actions, and callous disregard for the defendant’s right to a speedy

trial. Id. at 1064 n.4.

           From these cases, it is clear that the decision to dismiss an indictment with prejudice is

appropriate where the misconduct is so egregious by its nature that a meaningful remedy is

necessary to deter like misconduct or where, but for the misconduct, there would be no case to

pursue. Both scenarios implicate Massey Coal’s due process concerns: that the impartial nature

of the judicial system has been compromised to a degree or in a circumstance sufficient to warrant

a deterrent remedy in order to restore neutrality to the process.3

           A similar exclusionary rule grounded in a concern for the judicial process has been applied

in Fourth Amendment cases where error has occurred. See Mapp v. Ohio, 367 U.S. 643, 659

(1961). That rule, now more than a century old, was necessary in order to avoid the Fourth

Amendment being reduced to “a form of words.” Silverthorne Lumber Co. v. United States, 251



      3
        To the extent these cases suggest a concern for the integrity of the judicial process as a third basis for dismissal with prejudice, separate and
apart from the concern about egregious misconduct and indictments that should not have been brought, I do not believe it is necessary to consider
it here but note that a court should not routinely dismiss indictments simply because the court disagrees with the prosecutor’s decision. One might
question, for example, whether the Ninth Circuit’s inclination toward supervisory authority has the potential of depriving the State of its right to
enforce its laws because of mere error of the type that animated the State’s early objections to the exclusionary rule discussed below.

                                                                         –8–
U.S. 385, 392 (1920) (Holmes, J., barring use of unlawfully seized evidence before grand jury).

The exclusionary rule was once criticized as potentially permitting a criminal to go free simply

“because the constable has blundered.” Mapp, 367 U.S. at 659 (responding to criticism by stating

“[n]othing can destroy a government more quickly than its failure to observe its own laws”). More

recently, reflecting that same concern and the deterrent object of the rule, the Supreme Court has

clarified that it should apply only where some form of police misconduct beyond mere negligence

is involved and where the benefits of deterrence outweigh its costs. Herring v. United States, 555

U.S. 135, 147–48 (2009).

          I believe those same considerations apply and inform our analysis here. A prosecutor

proceeding to take a case before a grand jury where the objective facts would indicate an undue

influence casting a shadow over his judgment and that would otherwise not be pursued cannot be

adequately remedied by simply observing the fact and starting over as if it had not happened. 4

Without some form of meaningful remedy, there would be no meaningful check on the very

weighty institutional concerns that undergird Massey Coal and the right to due process that would

otherwise be reduced to a hollow form of words. Prosecutors, unlike police officers, make

decisions with the benefits of weeks or months of deliberation and with the benefit of extensive

legal training. See TEX. GOV’T CODE ANN. § 41.001 (requiring district attorneys to be licensed

attorneys). Where, as here, the prosecutor’s decision to seek an indictment still reflects the kind

of egregious misconduct that would serve as a basis for dismissal, the benefits of the deterrent

would seem to outweigh the costs, particularly where the evidence before the tribunal would

support the conclusion that the case would not have been pursued but for that misconduct. Further,

prosecutors have considerable power and discretion in deciding not only whether to pursue any



     4
       The implications of an indictment are no less severe than those following admission of improperly secured evidence. Even if the indicted
defendant ultimately secures a not guilty verdict at trial, he will have endured months or years seated beneath its sword and may have suffered
marital or career stress, in addition to the costs of mounting his defenses, for which the law can provide no remedy.

                                                                    –9–
criminal charges against a target but how many charges might be pursued among the ever

expanding panoply of criminal statutory prohibitions. See Paul H. Robinson, The Rise and Fall

and Resurrection of American Criminal Codes, 53 U. LOUISVILLE L. REV. 173, 177–78 (2015).

As others have noted, prosecutors also have the considerable coercive ability to pursue charges

against associates and intimates and use pending charges as leverage in plea negotiations. See

United States v. McElhaney, 469 F.3d 382, 385 (5th Cir. 2006); see also, e.g., Dale A.

Oesterle, Early Observations on the Prosecutions of the Business Scandals of 2002-03, 1 OHIO ST.

J. CRIM. L. 443, 483 n.35 (2004) (describing prosecutor’s tactic of “piling-on” as charging

defendant with multiple offenses for same underlying misconduct). To be sure, abuses of these

powers are likely exceptionally rare. Nevertheless, where a trial judge confronts evidence

supporting the inference that the prosecutor is improperly influenced, some meaningful curb on

these extraordinary powers is necessary.

       In the instant case, the trial judge had ample evidence on which to base her decision to

dismiss with prejudice on either a finding of egregious misconduct by the district attorney or a

finding that but for his misconduct no case would have been brought.

       First, Watkins solicited and retained significant financial benefits from those with a

financial interest in any potential criminal proceedings against Hill, which are reminiscent of the

contributions in Massey Coal that, even without proof of actual bias, “had a significant and

disproportionate influence in placing” a judge on a particular case, requiring the judge’s recusal.

See Massey Coal, 556 U.S. at 884–86. While I do not mean to suggest that the receipt or

solicitation of lawful campaign contributions, without more, would require recusal generally or

dismissal of the indictments in this case, the financial interests involved here are hardly alone. Cf.

Terrazas, 962 S.W.2d at 45.




                                                –10–
           Second, Watkins had an extraordinary 37 calls with Blue around the time of the

indictments, including at least one call in which he openly inquired whether she was still interested

in the indictments despite his awareness of her $50 million fee dispute with Hill. They also met

for dinner on numerous occasions, including the evening before the indictments were returned.

           Third, the record contains the unfortunate and inconsistent testimony of career prosecutors

as to the validity of the case against Hill and the evidence in this case.                                    At the hearing on Hill’s

motion to dismiss, assistant district attorney Stephanie Martin initially testified that from the

moment she got the complaint, in her mind, she had a good case and was “always presenting it to

the Grand Jury.” She was subsequently impeached with handwritten notes she made about her

conversations with the Hill trust’s attorney David Pickett. Her notes reflect that she told Pickett

that after doing research, she did not see how she could prove his criminal case at that time. The

judge asked Martin, “The bank is not interested in prosecuting, and your client is not a victim;

that’s what you told Mr. Pickett?” Martin responded, “Yes.” In addition, Martin later went back

and added to her notes the following: that she had talked to Pickett multiple times since her original

note and that he was okay with not indicting “for the trust as a victim” and going forward with

indictments listing the bank as the victim. Martin acknowledged she “probably” added that note

sometime after Hill filed his motion to dismiss.

           Fourth, the timing of the letter from Hill’s father accusing Hill of mortgage fraud and the

heated exchange of calls between Watkins and Blue would support an inference that forces outside

the district attorney’s office were at work.

           Fifth, the record shows a farcical game of hide and seek played by Watkins when he was

called to testify,5 resulting in the trial judge’s ultimately being forced to hold him in contempt.



      5
        Hill’s own former attorney, the only other party to the communications concerning the indictments of Hill, pleaded the Fifth even after the
court limited the questioning to her representation of Hill.

                                                                     –11–
Based on the foregoing record, the trial judge could have inferred that Watkins was seeking to

please parties interested in the proceeding under circumstances that implicate an improper

motivation. See Massey Coal, 556 U.S. at 886.

           From the evidence of Watkins’s courting the outside influence over the investigatory and

charging decisions from parties known to be financially adverse to Hill, all without any complaint

from or showing of harm to the lender, the trial judge could have readily found that Watkins denied

Hill the right to an impartial and disinterested prosecutor in violation of his due process rights.

The trial judge could have inferred that, but for the relationship Watkins nurtured with Blue, no

prosecution would have been pursued. Also, and separately, the trial judge here could have readily

concluded that simply returning the State and the defendant to the natural status quo ante would

have resulted in no prosecution at all.6 This was not a case in which a crime victim or the police

brought forward a charge that was thereafter mishandled by an overly aggressive or inept

prosecutor. But for the misconduct here, there would likely have been no prosecution to pursue.

Consequently, the trial court did not err in dismissing the indictments with prejudice.

           Accordingly, I concur in the majority’s decision to affirm the trial court’s order dismissing

the indictments with prejudice.




                                                                            /David J. Schenck/
                                                                            DAVID J. SCHENCK
130421CF.P05                                                                JUSTICE



      6
        I recognize that the Grand Jury returned true bills indicting the Hills. The Grand Jury’s true bills do not erase the taint in the presentment
of the charges in the first instance. The fundamental role of the prosecutor is to exercise a fair and independent analysis to determine which matters
should be brought before a Grand Jury. TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.09 cmt. 1, 2. Otherwise, a prosecutor would simply
bring forward 100% of the complaints of penal code violations, and the State would resemble a science fiction horror film. Some observers urge
that the Grand Jury filter too readily lends itself to true bills, prompting the of-repeated observation that even a minimally competent prosecutor
would face little difficulty in convincing a grand jury to “indict a ham sandwich.” Comparative Law Without Leaving Home: What Civil Procedure
Can Teach Criminal Procedure, and Vice Versa, 94 GEO. L.J. 683, 698 (2006); see also Kerns v. Wolverton, 381 S.E.2d 258, 262 n.4 (W. Va.
1989) (“Tom Wolfe reflected on this perception in his novel The Bonfire of the Vanities . . . .”). In all events, the grand jury’s determination of
probable cause does little to ameliorate the manifest problems with the pursuit of this matter in the first instance.

                                                                       –12–
