The STATE of Texas, Appellant v. Albert G. HILL III, Appellee

No. 05-13-00421-CR No. 05-13-00423-CR No. 05-13-00424-CR No. 05-13-00425-CR

Court of Appeals of Texas, Dallas.

Opinion Filed August 15, 2018

Charles "Chad" Baruch, Johnston Tobey Baruch PC, Craig Watkins, Faith Johnson, Susan Hawk, Dallas County District Attorney, Michael R. Casillas, Chief Appellate Public Defender, Dallas, TX, for Appellant.

George Milner III, Milner Finn Price, Dallas, TX, Alison Plessman, Marshall Camp, Irell & Manella, LLP, Los Angeles, CA, John C. Hueston, Irell & Manella, LLP, Newport Beach, CA, Michael Mowla, Attorney at Law, Cedar Hill, TX, for Appellee.

Before Justices Bridges, Brown, and Schenck

**OPINION ON REMAND**

Opinion by Justice Brown

This case is before us on remand from the Texas Court of Criminal Appeals. The State of Texas appealed the trial court's order dismissing with prejudice four indictments against Albert G. Hill III. In our original opinion, we held the trial court erred in conducting a pretrial evidentiary hearing on Hill's motion to quash and dismiss the indictments because Hill did not establish a prima facie case of alleged constitutional violations. We vacated the dismissal order and remanded with instructions to reinstate the indictments. *See**State v. Hill* , No. 05-13-00421-CR, 2014 WL 7497992 (Tex. App.-Dallas Dec. 29, 2014) (mem. op., not designated for publication), *rev'd* , 499 S.W.3d 853 (Tex. Crim. App. 2016). The court of criminal appeals disagreed and held the trial court did not abuse its discretion in conducting an evidentiary hearing. *State v. Hill* , 499 S.W.3d 853, 871 (Tex. Crim. App. 2016). It remanded the case to us to address the State's two remaining issues challenging the dismissal of the indictments with prejudice. We allowed the parties to supplement their briefs, and we heard new oral *283argument. For the following reasons, we affirm the trial court's dismissal order.

The facts of this case have been recounted at length in our original opinion, a dissenting opinion, and in the court of criminal appeals's opinion. We thus do not recite them again in detail. In March 2011, a grand jury returned four indictments against Hill. Three indictments charged him with making false statements to obtain property or credit. TEX. PENAL CODE ANN. § 32.32 (West 2016). The fourth charged him with securing execution of a document by deception. *Id.* § 32.46 (West 2016). Hill moved to quash and dismiss the indictments due to three types of alleged prosecutorial misconduct. First, he maintained that due to influence exercised upon then Dallas County District Attorney Craig Watkins, the State deprived him of his due process right to a disinterested prosecutor. Second, Hill asserted the State engaged in vindictive prosecution because he was being prosecuted in retaliation for unrelated civil litigation. Lastly, Hill contended the State engaged in selective prosecution because the conduct for which he was being prosecuted did not normally lead to prosecution.

In deciding the issues related to the court's decision to hold an evidentiary hearing on Hill's motion, we looked only at the motion and attached exhibits. We now also consider the evidence presented at the evidentiary hearing, which took place over three days. Several assistant district attorneys testified, but Watkins, despite being ordered by the court to do so, did not. At the conclusion of the hearing, the court granted Hill's motion and dismissed the cases with prejudice. The court's order recites 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. The court determined the district attorney's office denied Hill his due process rights under the United States and Texas constitutions.1

In its third issue, the State contends the trial court abused its discretion by compelling Watkins's testimony and then dismissing the indictments based on his refusal to testify. In its original brief, the State contended Watkins was justified in refusing to answer questions about Hill's indictment under the work-product exemption. At oral argument after remand, however, the State withdrew this argument. We are left to consider whether the trial court was entitled to dismiss the indictments for the reasons asserted in Hill's motion to dismiss. The State maintains Hill did not establish he was entitled to dismissal for any of the three grounds in his motion-lack of a disinterested prosecutor, vindictive prosecution, or selective prosecution.

Prosecutors have broad discretion in deciding which cases to prosecute. *Neal v. State* , 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State's duty to bring violators to justice. *Id.* As a result, the presumption of regularity supports prosecutorial decisions and, "in the absence of *284clear evidence to the contrary, courts presume [prosecutors] have properly discharged their official duties." *United States v. Armstrong* , 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting *United States v. Chem. Found., Inc.* , 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) ).

It is well established that there is no general authority that permits a trial court to dismiss a case without the prosecutor's consent. *State v. Mungia* , 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). A trial court may dismiss a charging instrument to remedy a constitutional violation, but such dismissal is "a drastic measure only to be used in the most extraordinary circumstances." *Id.* at 817 (citing *State v. Frye* , 897 S.W.2d 324, 330 (Tex. Crim. App. 1995) ). We review a trial court's ruling on a motion to dismiss a charging instrument for an abuse of discretion. *See**State v. Terrazas* , 962 S.W.2d 38, 42 (Tex. Crim. App. 1998) ; *State v. Perez* , 906 S.W.2d 558, 559 (Tex. App.-San Antonio 1995), *aff'd* , 947 S.W.2d 268 (Tex. Crim. App. 1997). Where there is no constitutional violation, or where the defendant's rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the indictment without the consent of the State. *Mungia* , 119 S.W.3d at 817.

A decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. *Neal* , 150 S.W.3d at 173. Under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. *Id.* The trial judge decides the ultimate factual issue based upon the evidence and credibility determinations. *Id.* at 174-75.

In addition, the absence of an impartial and disinterested prosecutor can also 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 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 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. Nor are the mere allegations of wrongdoing. *Id.*

Under the unique facts of this case, we cannot conclude the trial court's determination that Hill's due process rights were violated was an abuse of discretion. Hill and his wife were both indicted in March 2011 for allegedly making false and misleading written statements to a bank in seeking a $500,000 home equity loan. The case was first brought to the attention of the district attorney's office in February 2010 via a complaint made by Hill's father, through his lawyer. At the time, Hill and his father were on opposing sides of litigation in federal court over a family trust. The complaint was made to the Chief of the Specialized Crime Division just four days after the judge in the trust case found that Hill's father had testified falsely and submitted evidence in bad faith. The essence of the complaint was that Hill and his wife claimed a 100% ownership interest in their home, when they instead owned only a 20% interest and the other 80% was owned by the Albert *285Hill Trust. The bank did not complain of Hill's conduct. The loan was fully collateralized, and it is undisputed that the loan was repaid prior to Hill's indictment. The indictments against Hill's wife were dismissed within six months after they were returned.

In addition, after a settlement in the federal trust litigation, Hill was involved in a fee dispute with his former lawyer in that case. Hill's former lawyer testified by deposition about a phone call she received from Watkins shortly before Hill was indicted. Watkins said, "[T]here could be an indictment or are you still interested in the indictments." The attorney stated she told Watkins she did not represent the Hills anymore and it would be inappropriate for her to talk about it.

On the first day of the hearing on the motion to dismiss, Hill's former attorney took the stand and invoked the Fifth Amendment on all questions. On the second day of the hearing, when Hill called Watkins to testify, the State objected on grounds of attorney-client privilege. The trial judge disagreed and indicated she intended to limit his testimony to conversations he had with Hill's former attorney. The judge instructed prosecutors to "bring Mr. Watkins down." An assistant district attorney confirmed that Watkins had been subpoenaed to be present that day. After a break, another assistant district attorney, who had been tasked with "calling Mr. Watkins down," represented that Watkins was in the office, that she had spoken to him, and that he was "not going to make himself available." Watkins told her it would be improper for him to "discuss issues that are clearly within the purview of his discretion as the District Attorney." When the judge asked the assistant district attorney if she had informed Watkins that the scope of questions would be limited, the assistant district attorney stated that she knew Watkins to be ill and not in a condition to be able to testify. The judge granted a continuance.

Watkins was present at proceedings on March 7, 2013. Over the State's work-product and attorney-client privilege objections, the trial court required Watkins to testify. Hill's counsel asked Watkins about phone calls between Watkins and Hill's former counsel related to Hill and the indictments. Watkins refused to answer any questions "because of [his] right as an attorney to have the privilege and to protect [his] work product." The judge ordered Watkins to answer the questions. He refused.

The former first assistant district attorney, the highest ranking deputy in the office, testified about her participation in a pitch session at which a decision was made to indict Hill. Watkins was present at the pitch session. Long before the pitch session, two assistant district attorneys asked the former first assistant for permission to investigate the complaint against Hill made by his father. She approved the request, but because of the lawsuit between father and son, warned them to be "very, very skeptical of whatever [Hill's father] may have told you." She also warned that Hill's father was "using the office ... for his own purpose of getting an advantage over his son."

The assistant district attorney who presented this case to the grand jury testified that the case came to her attention in February 2010 when she was called into a meeting with Hill's father's attorneys. She received a copy of their complaint. Sometime later, possibly April 2010, she received another complaint in the case from David Pickett, trustee of the trust with an ownership interest in Hill's house. Several months later, Pickett wrote that assistant district attorney to urge her to pursue the case. She stated he was angry because it *286had not been presented yet. She denied giving Pickett the impression she was not interested in pursuing the case. The assistant district attorney testified she could not use the documents Pickett gave her in trial and had to have her "own set of documents under business records affidavit." She indicated 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." No one implied that her supervisor would be upset if she did not present the case to the grand jury. She testified that this case was "one of the easier cases [she] had." She also said she was certain at the "outset of reading that complaint that there was evidence to support it."

That assistant district attorney invited Watkins to a pitch session about the case and testified she thought she had to do a pitch session with him because of the media attention the case would attract. She testified she spoke to Watkins about the case only on the day she did the pitch. If he had called someone before the pitch meeting to talk about the indictments, she did not have any knowledge of that. The assistant district attorney would not have put the case before the grand jury if Watkins had told her to let it go. But she was confident she had a good case; it never crossed her mind that Hill and his wife would not be indicted.

During her testimony, the assistant district attorney who presented the case to the grand jury was impeached with handwritten notes she made about her conversations with Pickett. On September 8, 2010, she wrote that Pickett "calls all the time." She told him the investigation was going slowly. He wanted a definite timeline. She told him the bank was not interested in prosecuting. Pickett said the trust was the actual victim. The assistant district attorney told him that after doing research, she did not see how she could prove his criminal case at that time. She consulted with the former first assistant, who told her to go ahead with the investigation. The assistant district attorney testified she spoke to the bank's general counsel who told her the bank would not have filed a complaint because the loan was repaid. The judge noted that the witness appeared to contradict her previous testimony. The judge asked her, "The bank is not interested in prosecuting, and your client is not a victim; that's what you told Mr. Pickett?" She responded, "Yes." In addition, the assistant district attorney later went back and added to her notes. She added 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. The assistant district attorney acknowledged she "probably" added that note sometime after Hill filed his motion to dismiss.

Further, there was evidence a law partner of Hill's father's lawyer donated a total of $48,500 to Watkins's campaign. In June 2010, the partner made a $10,000 donation. On September 23, 2010, a couple of weeks after the assistant district attorney who presented the case to the grand jury noted the problems prosecuting the case against Hill, the law partner made a pledge of $33,500 to Watkins. Later, he donated another $5,000 to Watkins.

On the issue of vindictive prosecution, the parties disagree about whether we apply the rebuttable presumption of prosecutorial vindictiveness under the facts of this case. We need not decide whether there is a rebuttable presumption, however, because Hill presented evidence from which the trial court could have found actual vindictiveness. *See**Neal* , 150 S.W.3d at 173. Watkins had the ultimate authority to *287approve or refuse the presentation of Hill's case to the grand jury. The bank did not complain of Hill's conduct in connection with the loan. Hill's father raised the complaint after an adverse decision in his trust litigation against Hill. Also, around this same time, a law partner of Hill's father's attorney made donations or pledges to Watkins's campaign. Further, shortly before the indictments were handed down, Watkins called Hill's former attorney, who was engaged in fee dispute litigation against Hill, to talk about the indictments. Hill's allegations of prosecutorial misconduct centered on Watkins, but Watkins refused to testify. And the assistant district attorney who presented the case to the grand jury and testified about the decision to prosecute was impeached. Before she presented the case to the grand jury, she wrote that she did not see how she was going to prove the case. Yet after Hill raised the issue of prosecutorial misconduct, she added to her notes and testified that it was a good case and there was evidence to support it. This misconduct, by a career prosecutor, shows the depth of the taint in this case. In conjunction with the other evidence, the testimony of that assistant district attorney cast doubt on the whole process.

We defer to the trial judge's determination of the credibility of the witnesses and her discretion to determine that a constitutional violation occurred under these facts. *See**id.* at 174-75. The trial court had discretion to determine that Hill not only overcame the presumption of regularity, but presented clear evidence he was indicted in retaliation for the civil litigation involving his father and/or his former attorney. In addition, for these same reasons, the court could have determined that Hill was denied his right to a disinterested prosecutor because Watkins was under the influence of Hill's father and/or Hill's former attorney and that this influence conflicted with Watkins's duty to seek justice. We conclude the trial court did not abuse its discretion in determining that Hill's due process rights were violated. We overrule the State's third issue.

In its fourth issue, the State asserts the trial court erred in dismissing the cases with prejudice. The remedy for a constitutional violation must be tailored to the particular constitutional violation and the taint of that violation to be neutralized. *Mungia* , 119 S.W.3d at 816-17. A trial court abuses its discretion by dismissing an indictment when dismissal is not necessary to neutralize the taint of the constitutional violation at issue. *See**Terrazas* , 962 S.W.2d at 42 ; *Frye* , 897 S.W.2d at 330.

According to the State, the alleged taint was presentation of the case to the grand jury with impure motives. It contends dismissal without prejudice would have sufficed. The State maintains any taint could have been cured by forcing the State to obtain new indictments. It asserts the district attorney could have opted to appoint a prosecutor pro tem to decide whether to reindict. Although Watkins is no longer the district attorney, the trial judge could not have known he would later lose his bid for reelection. The facts of this case are egregious and amount to the kind of extraordinary circumstances that warrant the drastic measure of dismissal with prejudice. *See**Frye* , 897 S.W.2d at 330. To ensure that the State's decision to prosecute Hill would not be tainted by Watkins's involvement, the trial judge acted within her discretion in dismissing the indictments with prejudice. Given the prosecutorial misconduct in this case, such a drastic measure was appropriate. We overrule the State's fourth issue.

We affirm the trial court's order.

Schenck, J., concurring joined by Bridges, J.

*288**CONCURRING OPINION ON REMAND**

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

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 the *289time 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. 868, 886, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (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, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

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, 129 S.Ct. 2252. A reasonable prosecutor, knowing of the *290facts 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, 129 S.Ct. 2252.

**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 prosecution and conflict of interest jurisprudence developed before *Massey Coal* 's due process holding. 556 U.S. at 869, 129 S.Ct. 2252. 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* , 373 Mass. 438, 367 N.E.2d 635, 636-37 (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* , 396 Mass. 194, 484 N.E.2d 1330, 1334 (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.

*291The 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.*

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 inmate informants. *Id.* at 1057. The defendant requested disclosures from the *292government 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (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 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (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, 81 S.Ct. 1684 (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, 129 S.Ct. 695, 172 L.Ed.2d 496 (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.

*2934 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 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, 129 S.Ct. 2252. 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.

*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.

*294*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. 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, 129 S.Ct. 2252.

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 *295a 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.

Bridges, J., joins this concurring opinion.

1

The trial court signed the order dismissing the indictments on March 7, 2013, and the State filed its notice of appeal on March 27, 2013. The trial court made written findings of fact and conclusions of law on August 2, 2013, after both the clerk's record and the reporter's record were filed. Once the record is filed in the court of appeals, the trial court loses jurisdiction until it receives a mandate from the appellate court. *Berry v. State* , 995 S.W.2d 699, 700 (Tex. Crim. App. 1999) ; *see* Tex. R. App. P. 25.2(e). The trial court was therefore without jurisdiction to make findings of fact and conclusions of law in August 2013. The court's findings and conclusions are null and void, and we may not consider them. *See**Berry* , 995 S.W.2d at 701.

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. A.T. Massey Coal,*556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (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.

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).

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.

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.

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.

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* , 181 W.Va. 143, 381 S.E.2d 258, 262 n.4 (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.