PD

- 0019

- 15, PD

- 0020

- 15 PD

- 0021

- 15, PD

- 0022

- 15 I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## T HE 

## S TATE OF 

## T EXAS A PPELLANT

vs. 

## A LBERT 

## G. H ILL 

## , III A PPELLEE

_________________________________________________ F ROM THE F IFTH C OURT OF A PPEALS , C AUSE N OS
. 05

- 13

- 00421

- CR, 05

- 13

- 00423

- CR, 05

- 13

- 00424

- CR, 05

- 13

- 00425

- CR A PPEAL FROM THE 204 TH J UDICIAL D ISTRICT C OURT OF D ALLAS C OUNTY , T EXAS , C AUSE N OS
. F11

- 00180, F1 1

- 00182, F11

- 00183, F11

- 00191

_________________________________________________ 

## B RIEF OF 

## A MICUS 

## C URIAE 

## L ISA 

## B LUE IN 

## S UPPORT OF 

## A PPELLANT

_________________________________________________ R OBERT N. U DASHEN , P.C. State Bar No. 20369600 rnu@sualaw.com B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201 214

- 468

- 8100 (office) 214

- 468

- 8104 (fax) Counsel for Appellant PD-0019-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 9/8/2015 3:44:04 PM Accepted 9/8/2015 4:26:09 PM

ABEL ACOSTA CLERK2 Table of Contents Index of Authorities

................................ ................................ .................... 3 Interest of Amicus Curiae and Disclosure of Source of Fee Paid

............. 5 Argument

................................ ................................ ................................ ..... 7 I. It’s unclear what standard Hill asks this Court to use to conduct its analysis, but it’s clear that Armstrong controls

.............. 9 II. Under Armstrong , it is plain that Hill was not entitled to an evidentiary hearing on his conclusory and baseless claims

............ 14 III. Conclusion

................................ ................................ .................... 25 Prayer

................................ ................................ ................................ ........ 26 Certificate of Service

................................ ................................ ................. 28 Certificate of Compliance

................................ ................................ ......... 283 Index of Authorities
Cases Attorney General v. Irish People, Inc. , 684 F.2d 928 (D.C. Cir. 1982)

.... 12 Blue v. Hill , No. 3:10

- CV

- 2269

- L, 2014 WL 2217334, *2 (N.D. Tex. 2014)

................................ ................................ ................................ .......... 20, 21 Campbell Harrison & Dagley, L.L.P. v. Hill , 582 Fed. App’x 522 (5th Cir. 2014)

................................ ................................ ............................... 20 Franks v. Delaware , 438 U.S. 154 (1978)

................................ .......... 11, 13 Galvan v. State , 988 S.W.2d 291, 294 (Tex. App.

— Texarkana 1999, pet. ref’d)

................................ ................................ ................................ ....... 23 Garcia v. State , 172 S.W.3d 270, 273 (Tex. App.

— El Paso 2005, pet. ref’d)

................................ ................................ ................................ ....... 22 In re United States , 397 F.3d 274, 284 (5th Cir. 2005)

....................... 9, 14 Jones v. White , 992 F.2d 1548 (11th Cir. 1993)

................................ ....... 12 Ramsey v. State , 579 S.W.2d 920, 923 (Tex. Cri m. App. 1979)

.............. 11 Rodriguez v. State , 283 S.W.3d 465, 471 (Tex. App.

— San Antonio 2009, pet. dism’d)

................................ ................................ ............................. 22 State v. Dinur , 383 S.W.3d 695, 697 (Tex. App.

— Houston [14th Dist.] 2012, no pet.)

................................ ................................ ......................... 22 State v. Hill , No. 05

- 13

- 00421

- CR, 2014 WL 7497992, *11 (Tex. App.

— D allas 2014)

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

...................... 12 United States v. Armstrong , 517 U.S. 456 (1996)

............................ passim United States v. Cruz , 285 F.3d 692 (8th Cir. 2002)

............................... 17 United States v. Fares , 978 F.2d 52 (2d Cir. 1992)

................................ .. 12 United States v. Goulding , 26 F.3d 656 (7th Cir. 1994)

.......................... 12 United States v. Greenwood , 796 F.2d 49 (4th Cir. 1986)

....................... 12 United States v. Jennings , 724 F.2d 436, 445

– 46 (5th Cir. 1984)

... 12, 13, 14 United States v. Johnson , 592 F.3d 749, 757 (7th Cir. 2010)

................. 17 United States v. Mercado , 610 F.3d 841, 847

- 48 (3d Cir. 2010)

............. 17 United States v. Murdock , 548 F.2d 599, 600 (5th Cir. 1977)

................ 24 United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992)

.................. 12 United States v. Peete , 919 F.2d 1168 (6th Cir. 1990)

............................. 12 United States v. Pena garicano

- Soler , 911 F.2d 833, 839 (1st Cir. 1990) 12 United States v. Ramirez , 765 F.2d 438, 440 (5th Cir. 1985)

................. 124 United States v. Sanchez , 517 F.3d 651, 671 (2d Cir. 2008)

............. 13, 14 United States v. Saville , No. CR 12

- 02

- BU

- DLC, 2013 WL 3270411, *8 (D. Mont. 2013)

................................ ................................ ...................... 17 United States v. Torquato , 602 F.2d 564 (3d Cir. 1979)

.......................... 12 United States v. Webster , 162 F.3d 308, 334 (5th Cir. 1998)

............ 12, 14 Wade v. United States , 504 U.S. 181, 186 (1992)

.............................. 12, 14 Wayte v. United States , 470 U.S. 598, 524 (1985)

............................. 24, 25

Statutes T EX
. P ENAL C ODE § 32.32(b)

................................ ................................ ........ 7 T EX
. P ENAL C ODE § 32.46(a)

................................ ................................ ........ 75 Interest of Amicus Curiae and Disclosure of Source of Fee Paid Ap p ellee Albert G. Hill III accused Amicus curiae Lisa Blue to have improperly encouraged Dallas County District Attorney Craig Watkins to indict Hill in these cases. Though these allegations are entirely without any factual support, the trial court in it s findings of fact an d conclusions of law o n Hill ’ s motion to quas h and dismiss the indictments

– adopted nearly verbatim from those submitted t o the trial court by Hill

– conclude d it could be inferred that Blue did so due to her refusal to testify at the hearing on the matter. Hill ’ s allegations in this case, and now the findings of fact and conclusions of law signed by the trial court, have caused, and continue to cause, great harm to Blue ’ s personal and professional reputations. During the proceedings in the trial court , rarely a day went by that t he media did not cover the case in some manner. Additionally, the findings and conclusions ’ implication that it is improper for politicians and donors to have a personal relationship effects a chill on Blue ’ s, and every other Texan ’ s, right to participate in the political process. Accordingly, Blue now files this limited a micus curiae brief in support of the State, pursuant to Rule 11 of the Texas Rules of Appellate Procedure, with a deep and6 significant interest in this Court ’ s determination of the proprie ty of the trial court ’ s findings and conclusions. She has retained the above

- named attorneys to file this a micus curiae brief on her behalf.7 Argument Albert Hill III committed the felony crimes of making a false statement to obtain property or credit and securing execution of a document by deception. See T EX
. P ENAL C ODE §§ 32.32(b) , 32.46(a) ; (RR4: 149

- 50) (assistant district attorney characterized the case as “one of the easier cases [she] had”)

. As a result, the State initiated prosecution. From the outset, Hill has c omplained that the State chose to prosecute him for his crimes , seemingly oblivious to his clear violations of the law

. See (CR

- 180

- I at 35). Ignoring this simple causality

— commit felonies, get prosecuted

— Hill has declared that the State only cared about h is crime s for a nefarious reason : because Blue improperly influenced former District Attorney Craig Watkins to prosecute Hill

. ( CR

- 180

- I at 35). At no point has Hill offered any evidence to support his claim ; just rank speculation as to the content of comm unications between longtime friends and political associates , Watkins and Blue. Repeatedly, Hill has conjured a conspiracy from absolutely nothing at all. Accordingly, in an opinion filed December 29, 2014, the court of appeals correctly concluded that Hil l hadn ’ t even met the minimal threshold required to obtain a8 hearing on his claim. The court thus reversed the trial court ’ s finding th at the State ’ s and Blue ’ s invocation of privilege 1 at such a hearing warranted dismissal of the indictments pending against Hill , vacated the
court ’ s order dismissing the indictments, and returned the case to that court for trial on the indictments. State v. Hill , No. 05

- 13

- 00421

- CR, 2014 WL 7497992, *11 (Tex. App.

— Dallas 2014)

. Now, before this Court, Hill again complains that he is being selectively and vindictive ly prosecuted for his felony crimes. 2 Over the course of some 7 0

- plus pages, he explains for this Court the history of prosecutorial misconduct, and debates the standards for evaluating as much, before finally attempting to clarify just what evidence he ha s to show he is being prosecuted for any reason other than that he committed serious crimes. Again, though, he can ’ t. Hill points only to content

- unknown con-

1 Blue only asserted her Fifth Amendment privilege be cause she received a federal target letter immediately before the hearing . That criminal investigation was instigated by Hill and was soon dropped

.
2 Hill has apparently abandoned his claim that Watkins was not a disinterested prosecutor , now asserting o nly that Watkins selectively and vindictively prosecuted him. Compare Hill ’ s brief before the court of appeals, pages 36

- 44, and Hill ’ s Petition for Discretionary Review, which only mentions the disinterested claim in summarizing prior proceedings.9 versations as somehow damning evidence of Watkins ’ s and Blue ’ s culpability. They ’ re not, though, an d they never were, and it remains that Hillis very much guilty of the crimes for which he was prosecuted. Accordingly, Blue respectfully requests this Court to make clear that there is no evidence she engaged in any wrongdoing and to affirm the court of a ppeals ’ s holding.

I. It ’ s unclear what standard Hill asks this Court to use to conduct its analysis , but it ’ s clear that Armstrong controls The court of appeals in this case conducted its analysis pursuant to United States v. Armstrong , 517 U.S. 456 (1996) ; see Hill , 2014 WL 7497992 at *5 (“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.”) (citing Armstrong , 517 U.S. at 468). In that case, the Supreme Court held that 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

. Armstrong , 517 U.S

. at 468; see also In re United States , 397 F.3d 274, 284 (5th Cir. 2005) (prima facie case “requires the criminal defendant to bring forward some evidence ”).10 It is not entirely clear whether Hill ’ s argument accepts this standard. Citing Armstrong , h e acknowledges that “ the standard to prove a claim of selective prosecution is a ‘ demanding ’ standard, and that there is a ‘ background presumption ’ that what a defendant must show in the first instance to obtain discovery (through a hearing) ‘ should itself be a significant barrier to the litigation of insubstantial claims. ’ ” PDR at 50 (citing Armstrong , 517 U.S. at 463 )

. As Hill summarizes: “t o obtain a hearing under the ‘ presumption of prosecutorial vindictiveness ’ me thod, a defendant must provide ‘ some evidence ’ that shows: (1) the government singled out the defendant for prosecuti on and has not proceeded againstothers similarly situated based on the type of conduct for which the defendant is charged; and (2) the government ’ s discriminatory selection is invidious. ” PDR at 47. Perhaps because t his standard i s “rigorous,” though, see Armstrong , 517 U.S. at 468 , Hill then “asks this Court to find that so long as a defendant attaches a proffer of evidence to a motion todismiss due to prosecutorial misconduct that the trial court in its discretion determines to present a colorable claim of a constitutional violat ion, the defendant has attached ‘ some evidence, ’ and a trial court has the discretion to conduct a hearing on the motion to dismiss.” PDR at 47

- 48. And11 a “ ‘ proffer of evidence ’ in the context of a selective prosecution claim that allows a trial court in it s discretion to order a hearing on the claim ,” Hill asserts, “ should be no different than the procedure to obtain a hearing under Franks v. Delaware , 438 U.S. 154 (1978) , where a defendant contests the truthfulness of an affidavit supporting a search warrant. ” PDR
at 55. The court of appeals ’ s holding otherwise, Hill claims

— apparently forgetting Armstrong

— was an “unprecedented rule.” PDR at 57. Instead,

u nde r Franks , Hill asserts, merely “a statement by the defense attorney as to what would be shown if he were allowed to call witnesses on the issue” justifies a hearing.” PDR at 56

- 57 (citing Ramsey v. State , 579 S.W.2d 920, 923 (Tex. Crim. App. 1979) ). Hill then returns to Armstrong , how ever, in declaring that he provided sufficient evidence to warrant a hearing. PDR at 58

- 67). Whatever standard Hill is asking for, t his Court should not apply Franks in the selective /vindictive prosecution context. First, as best Blue can tell, no court ever has. A nd, indee d, Hill in his brief cites to no cas e in which a court has done so

. 3 See PDR at 55

- 58 , 71

- 75

. This makes sense.

3 Hill concludes his brief by claiming that “most other courts have adopted standards substantially similar” to that which he asks this Court to adopt. (PDR at 71

- 75). Again, it is unclear exactly what standard that is. But , regardless, every single one of t hose cases pre

- dates Armstrong

. See United States v. Penagaricano

- Soler , 911 F.2d12 For, as Hill acknowledged, but then seemingly ignored, there already is a standard for determining whether a hearing is justified: Armstrong

. An d under Armstrong, “[a] defendant is not automatically entitled to an evidentiary hearing to make the required showing. He must first present facts ‘ sufficient to create a reasonable doubt about the constitutionality of [his] prosecution ’ resulting from se lective prosecution.” United States v. Webster , 162 F.3d 308, 334 (5th Cir. 1998) (citing , e.g., Armstrong , 517 U.S. at 469; United States v. Jennings , 724 F.2d 436, 445

– 46 (5th Cir. 1984) (finding bare generic allegations concerning the selective prosecution of racial groups insufficient to justify an evidentiary hearing); United States v. Ramirez , 765 F.2d 438, 440 (5th Cir. 1985) (holding “conclusional allegations of impermissible motive are not sufficient” to demonstrate t he government acted in bad faith) ); see also Wade v. United States , 504 U.S. 181, 186 (1992) (stating that “generalized allegations of im-

833, 839 (1st Cir. 1990) ; United States v. Fares , 978 F.2d 52 (2d Cir. 1992) ; United States v. Torquato , 602 F.2d 564 (3d Cir. 1979) ; United States v. Greenwood , 796 F.2d 49 (4th Cir. 1986) ; United States v. Peete , 919 F.2d 1168 (6th Cir. 1990) ; United States v. Goulding , 26 F.3d 656 (7th Cir. 1994) ; United States v. Armstrong , 48 F.3d 1508 (9th Cir. 1995) ; United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) ; Jones v. White , 992 F.2d 1548 (11th Cir. 1993) ; Attorney General v. Irish People, Inc. , 684 F.2d 928 (D.C. Cir. 1982)

. M oreover, every single one of them , like Arm strong , requires a defendant to produce some evidence, not just wildly speculative accusations. See id.13 pr oper 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 ’ 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). Moreover, even if this Court were to consider becoming the first court to apply Franks in the selective prosecution context, Hill exagg erates its permissiveness. Even i n Franks , the United States Supreme Court required that , “[t] o mandate an evidentiary hearing, the challenger ’ s attack must be more than conclusory and must be supported by more than a mere desire to cross

- examine

. ” Franks , 438 U.S. at 171 (emphasis added)

. Accordingly, Blue first urges this Court to follow the court of appeals and conduct its analysis under Armstrong. See Hill , 2014 WL 7497992 at *5. A defendant who claims his constitutional rights were violated by some form of prosecutorial misconduct must make out a prima14 facie case of his claims before he is entitled to an evidentiary hearing or discovery. See In re United States , 397 F.3d at 284 (citing Armstrong , 517 U.S. at 465 ; Webster , 162 F.3d at 334 )

. And t he “facts” required to castdoubt 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 Jenn ings , 724 F.2d at 445

– 46; Wade , 504 U.S. at 186 , Sanchez , 517 F.3d at 671

. II. Under Armstrong , it is plain that Hill was not entitled to an evidentiary hearing on his conclusory and baseless claims Under the appropriate standard

— and really, under almost any standard

— it is clear that the court of appeals was correct in holding that Hill was not entitled to a hearing on his motion to dismiss. See Hill , 2014 WL 7497992 at *11. Hill arg ues just the opposite: that he proffer ed “not only... ‘ some evidence, ’ ” but “exceptionally clear evidence” that “Blue,who at the time was engaged in a fee dispute with [Hill], corruptly influenced Watkins, a close friend and fellow Democratic party operative, to authorize indictments against [H ill] in exchange for a promise of and actual receipt of ‘ campaign ’ contributions for a nonexistent ‘ campaign.””15 PDR at 12

- 13. As support, Hill claims to possess “ compelling cir cumstantial evidence

. ” PDR at 13

- 14. But after 60

- plus pages of bluster, there Hill ’ s argument ends

— with a mere recitation of the evidence that the court of appeals rejected as simple “speculation,” and not a word addressing that conclusion

. See PDR at 6 3

- 6 7. Hill ’ s argument that he “made a ‘ colorable claim ’ of a constitutional viola tion” begins in earnest in the final paragraph of page 63 of his brief. All that precedes it comprises Hill’s version of the facts and the standard for evaluating whether a defendant is entitled to a hearing. But there, beginning on page 63, Hill claims in two paragraphs that the “Motion toDismiss and its attachments detail how Blue, who at the time was engaged in a fee dispute with Appellee, corruptly influenced Watkins, aclose friend and fellow Democratic party operative, to authorize indictments agains t Appellee in exchange for a pr omise of and actual receipt of

‘ campaign ’ contributions for a nonexistent ‘ campaign. ’ ” PDR at 63

- 64. Hill then sets forth his “ exceptionally clear evidence,” which t he court of appeals aptly summarized , and with which Hill do es not quarrel: (1) political contributions from a lawyer associated with Hill ’ s father in the months after the February 2010 complaint andfive months before the indictments were returned and a donation by Blue less than a month before the indictments were16 returned; (2) that Blue hosted a fundraiser for Watkins in themonth 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 timin g 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 we eks leading up to the Hills ’ indictments and ending after the indictments were returned; (7) Blue ’ s discussion about 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 charges against Hill ’ s wife were dismissed. Hill contends on appeal t hat 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. Hill , 2014 WL 7497992 at *6 ; see PDR at 52 (pointing to the court of appeals ’ s summary of Hill ’ s “evidence”)

. No real argument follows. See PDR at 67. Hill instead returns to advocating for a lesser burden than Armstrong (now, for “public policy”

reasons
— more on this below ), without at all explaining how, under any standard, his “evidence” amounts to anything but pure speculation . PDR
at 67

- 68. For good reason: he can ’ t. The court of appeals was absolutely correct in conc luding that, “[a] bsent evidence regarding the substances of [Blue and Watkins ’ ] communications, Hill ’ s characterization about the17 timing of the text messages and phone calls does not necessarily suggest the communications were related to the indictments as opposed to other legitimate purposes. ” Hill , 2014 WL 7497992 at *8. This comports with both common sense and the holdings of several federal courts of appeals. See, e.g., United States v. Mercado , 610 F.3d 841, 847

- 48 (3d Cir. 2010) (jurors may not infer that a defendant gai ned knowledge of the subject of an illegal conspiracy based on phone calls alone); United States v. Johnson , 592 F.3d 749, 757 (7th Cir. 2010) (finding that approximately 300 calls over 10 months, even combined with other circumstances, does not show conspiratorial relationship); United States v. Cruz , 285 F.3d 692 (8th Cir. 2002) (evidence was insufficient to support defendants ’ convictions for conspiracy to distribute methamphetamine; although police officers observed defendants talkin g on cellular phone shortly after being notified that government informant, a known drug dealer, had initiated phone call to cell phone number, absent evidence of the contents of the phone conversations, jury could only speculate as to relationship between them and what was discussed); see also United States v. Saville , No. CR
12

- 02

- BU

- DLC, 2013 WL 3270411, *8 (D. Mont. 2013) (“Likewise, while18it may have been possible to speculate that Saville was planning on connecting his computer to another on the Gnutella network for the purpose of downloading child pornography, that to o would be like speculating about the contents of a phone conversation based on the identity of the person or entity dialed.”)

. Indeed, the evidence in this case was even less suspicious in light of Blue and Watkins ’ s long

- standing (and well

- documented) fr iendship. As the court of appeals explained: 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. 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 pa tron related to the indictments. As Hill pointed out in his motion, Blue had been a contributor and supporter of Watkinssince 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 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. Id.19 Furthermore, Hill ’ s characterization of the State’s case against him is wildly inaccurate. Repeatedly, Hill claims that the “mortgage fraud allegations were dubious at best,” and that the indictments against him

were thus “unprecedented.” PDR at 15 , 28 , 64, 65. But in support, Hill points only to the allegations in his origin al motion , and to evidence adduced at the hearing

. See PDR at 15 , 28, 64, 65 (citing CR

- 180: 36

- 52; RR4: 49, 126, 129, 155). The former is, of course, not evidence, and the latter has no place in this Court ’ s analysis of whether Hill included with his motion some evidence tending to show the existence of the essential elements of the claimed violations. See A rmstrong , 517 U.S. at 468

. Moreover, the evidence adduced at the hearing did not support Hill ’ s accusation. Hill claims that Assistant District Attorney Stephanie Martin “didn ’ t see how [she] could prove [Hill ’ s] criminal case” but was directed to proceed anyway. PDR at 22, 37. This is a gross mischaracterization of the testimony adduced at t he hearing. In fact , Martin testified only that she did not think the case could be prosecuted with the family trust as the victim, rather than the bank that Hill lied to, and that, accordingly, Moore directed her to continue her investigation as she had b een. (RR4:
186

- 187). Indeed, Martin believed it to be a “good case” from the moment20 it was reported; it was “one of the easier cases [she] had.” (RR4: 149

- 150). There was no testimony whatsoever that Martin preferred to drop the case but that Moore demande d she press on. Unsurprisingly, then, t he court of appeals ’ s conclusion was also precisely in line with that of United States District Court for the Northern District of Texas. In civil litigation between Hill and Blue over attorneys ’ fees, Hill attempted to avoid paying Blue for her legal work “by contend[ing] that the evidence of numerous communications between Lisa Blue and District Attorney Craig Watkins and donations from Blue and her associates to Watkins ’ s campaign establishe [d] that [Blue] was activ ely involved in ensuring that the Hills were wrongfully indicted for mortgage fraud two weeks before the attorneys ’ fee trial was set to begin, and that the fraudulently obtained criminal charges interfered with their ability to defend themselves against [ Blue ’ s] claims in the attorneys ’ fee dispute.” Blue v. Hill , No. 3:10

- CV

- 2269

- L, 2014 WL 2217334, *2 (N.D. Tex. 2014) appeal dismissed sub nom. Campbell Harrison & Dagley, L.L.P. v. Hill , 582 F ed . App ’ x 522 (5th Cir. 2014)

. In so doing, Hill pointed
to largely the same “evidence ” he relies on in this Court

. Id. at *4. And in that court, too, Hill ’ s claim was rejected for relying “upon supposition and21 speculation in place of evidentiary support.” Id. The federal court explained: The extensive appendices and briefing submitted by the Hills do not, as they con tend, “allow[ ] only one reasonable inference ... that Ms. Blue improperly influenced the D.A. ’ s Office to indict her former clients in order to give [Blue] an unfair advantage in the fee trial.” These records instead document that Blue and Watkins have a close personal and professional relationship and, separately, that the Hills ’ s indictments were unusual and eventually dismissed by the District Attorney ’ s Office. There is not sufficient evidence to prove, or reasonably infer, that the interactions or rel ationship between Blue and Watkins resulted in the criminal charges against the Hills, that the indictment of the Hills was meant to reward Blue, or place the Hills at a disadvantage in the attorneys ’ fee dispute. The Hills speculate

— but in no way establis h

— that the phonecalls, meetings, and campaign donations from Blue to Watkins were related to the criminal charges against them, as opposed to legitimate purposes. The Hills ’ s evidence of temporal proximity and fervent belief in the correctness of their ar gument are not enough to satisfy their Rule 60(b)(3) burden. The Hills do not submit evidence, direct or circums tantial, to establish that Blue... influenced the District Attorney ’ s Office to indict them wrongfully

.... Id

. In fact the federal court rejected Hill’s claim even while mistaking a crucial fact: both Hills’s indictments were not dismissed, only Hill’s wife’s. See Hil l , 2014 WL 7497992 at *1 (“The State later dismissed the charges against Hill's wife and continued to prosecute the cases against Hill.”).22 Hill has nothing to rebut the conclusions of these courts. No argument. Faced with this inconvenient reality, Hill, in a sort of last

- ditch effort, notes that “[n] o appellate court in Texas has ever ruled that a trial court erred in conducting a hearing on a defen dant ’ s motion to dismiss charges on the basis they violated his constitutional rights. ” (PDR at 67

- 68). But none of the cases to which he cites even address that issue

. See Garcia v. State , 172 S.W.3d 270, 273 (Tex. App.

— El Paso 20 05 , pet. ref ’ d ) (“ In Issue No. Two, Appellant maintains that the court erred in failing to grant her motion to q uash the indictment on the basis of selective prosecution. ”); State v. Dinur , 383 S.W.3d 695, 697 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) (“The State of Texas appeals from the trial court ’ s dismissal of driving

- while

- intoxicated charges against appellee Alexander Elliot Dinur. Because we conclude that there is neithe r a violation of appellee ’ s constitutional rights nor any statutory or common law basis for dismissal asserted, we reverse the trial court ’ s order of dismissal and remand for further proceedings.”); Rodriguez v. State , 283 S.W.3d 465, 471 (Tex. App.

— San Antonio 2009, pet. dism ’ d) (“In his final point of error, Rodriguez cla ims the trial court denied him equal protection, due process, equity, and fairness when it dismissed a virtually identical bond23 forfeiture case against Del Rio and his surety but did not do the same for him. He argues the Bexar County District Attorney ’ s d ecision to proceed against him as an attorney

- surety was unfair given the decision not to proceed against the non

- attorney licensed surety in an identical case.”); Galvan v. State , 988 S.W.2d 291, 294 (Tex. App.

— Texarkana 1999, pet. ref ’ d) (“Galvan first contends that the trial court erred in failing to allow evidence of selective prosec ution as a defense because selective prosecution is an issue which the jury should be allowed to consider .... In hissecond point of error, Galvan contends that the trial court erred in holding that he failed to successfully show a prima facie case of select ive prosecution in his motion to quash the indictment.... Galvan contends in his third point of error that the trial court erred by not holding a hearing on his motion for new trial. ”). And, indeed, other than noting that no court has ever ruled as the court of appeals did here, Hill does not urge this Court to fall in line

. See PDR at 68

- 69. Hill finally asserts that “public policy” benefits if this Court will just

“ allow[ ]” judges “ the discretion to conduct a hearing ” when a defendant merely “ makes a col orable claim of prosecutorial misconduct.” PDR at 70 (emphasis added)

. Pointing to Justice Marshall ’ s dissenting opinion in24 Wayte v. United States , 470 U.S. 598, 524 (1985) , Hill argues that doing so is necessary because “ evidence of selective prosecution is nearly impossible for a defendant to obtain through Article 39.14 or Brady becau se the evidence more than likely is in the hands of the prosecutor wh o is committing the misfeasance.” PDR at 69. Even forgetting that Justice Marshall ’ s dissenting opinion has no precedential value, and that it, too, pre

- dates Armstrong , in fact Justice Marshall ’ s opinion supports the opposite conclusion than that for which it is cited. Hill points to Marshall ’ s opinion because it observes that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive,” and “ t hat most of the relevant proof in selective prosecution cases will normally be in the Government ’ s hands. ” PDR at 69

- 70 (citing Wayte , 470 U.S. at 624 (Marshall, J., dissenting)). But Hill ignores Justice Marshall ’ s subsequent admonition that, “[a]t thesame time,” the government need be protected “from attempts by the defense to seek discovery as a means of harassment or of delay.” Wayte , 470 U.S. at 524 (Marshall, J., dissenting) (citing United S tates v. Murdock , 548 F.2d 599, 600 (5th Cir. 1977) ) . And, to that end, all of these statements are in support of what would ultimately become Armstrong :25 The Courts of Appeals have adopted a standard under which a defendant establishes his right to discovery if he can show that he has a “colorable basis” for a selective prosecution claim. To make this showing, a defen dant must allege sufficient facts in support of his selective prosecution claim “to take the question past the frivolous state.” In general, a defendant must present “ some evidence tending to show the existence of the essential elements of the defense.” Wayte , 470 U.S. at 623

- 24 (Marshall, J., dissenting) (emphasis added). In no way, then, does Justice Marshall ’ s dissenting opinion in Wayte support Hill ’ s argument that this Court should approve t he trial court’s conclusion that he was entitled to an evidentiary hearing

— if anything, it supports the Armstrong standard that Hill cannot satisfy. III. Conclusion The court of appeals concluded that, “ other than Hill ’ s belief th at the DA ’ s office served as a ‘ stalking horse ’ for others, Hill presented noevidence 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 , 2014 WL 7497992 at *10. “He did notpresent any evidence that he was singled out for prosecution under circumstances that do not normally lead to prosecution.” Id. In sum, “ [h] is allegations about the DA ’ s office ’ s motivations for prosecuting him26 amount to speculation,” and “ Hill ’ s speculation is not evidence of vindictive prosecution. ” Id. Hill still rejects that he was indicted because he committed felony crimes, again asserting it was “due to Bl ue’s bribing and influence of Watkins.” PDR at 27. But n ow, before t his Court, Hill spends his time arguingabout the amount of evidence necessary to entitle a defendant to a hearing. A s to the court of appeals ’ s conclusion that he presented no evidence

— a conclusion which renders Hill ’ s preferred issue moot

— Hill musters only two conclusory paragraphs, neither of which address the court of appeals ’ s reasoning. See PDR at 63

- 64. Instead, Hill simply announces the evidence “overwhelmingly proved ...” and “clear ly showed... Watkins allowed himself to be corruptly influenced by Blue

. ” PDR at 50, 76. Amicus Blue urges this Court to reject Hill ’ s entreaty to ignore the law and the facts so that he may avoid responsibility for his crimes. There is absolutely no evide nce she influenced Watkins to indict Hill. Accordingly, Hill was not entitled to a hearing on the issue, and the indictmentsthus should not have been dismissed when Blue and Watkins then invoked their privilege. Prayer27 For the foregoing reasons, Amicus B lue respectfully requests this Court to affirm the court of appeals ’ s judgment vacating the trial judge ’ s order dismissing the indictments in these cases and remand ing the cases to the trial court with instructions to reinstate the indictments against Hill

. Respectfully submitted,

/s/ Robert N. Udashen R OBERT N. U DASHEN , P.C. Bar Card No. 01274700 rnu@sualaw.com /s/ Brett Ordiway B RETT O RDIWAY Bar Card No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)

- 468

- 8100 (office) (214)

- 468

- 8104 (fax) Attorneys for Amicus Blue28 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Brief of Amicus Curiae Lisa Blue in Support of Appellant was electronically served to Albert G. Hill, III and the State of Texas, by and through each parties ’ attorneys of rec ord, o n September 8, 2015

. /s/ Robert N. Udashen R OBERT N. U DASHEN , P.C.

Certificate of Compliance Pursuant to T EX
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- volume limitation of T EX
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. P . 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14

- point Century Schoolbook. /s/ Robert N. Udashen R OBERT N. U DASHEN , P.C.