No . 1 3- 15

- 00 063- CR



# In the Court of Appeals for the Third District of Texas at Austin

____________________________________ 

## E X 

## P ARTE 

## J AMES 

## R ICHARD 

## “R ICK 

## ” P ERRY

____________________________________
A PPEAL F ROM THE D ENIAL OF A PPLICATION FOR W RIT OF H ABEAS C ORPUS

S TATE OF T EXAS V

. J AMES R ICHARD “R ICK ” P ERRY

D-1- DC

- 14 -100139

I N THE D ISTRICT C OURT FOR THE 390 TH J UDICIAL D ISTRICT , T RAVIS C OUNTY , T EXAS

___________________________________ 

# APPELLEE’S SUPPLEMENTAL BRIEF

____________________________________

MICH AEL MCCRUM DAVID GONZALEZ T EXAS B AR N O

. 13493200 T EXAS B AR N O

. 24012711 D ISTRICT A TTORNEY P RO T EM A SST

. D ISTRICT A TTORNEY P RO T EM T RAVIS C OUNTY , T EXAS T RAVIS C OUNTY , T EXAS 700 N. St. Mary’s St., Ste. 1900 206 East 9 th Street, Ste. 1511 San Antonio, Texas 78205 Austin, Texas 78701 Tel: (210) 225-2285 Tel.: (512) 381-9955 Fax: (210) 225-7045 Fax: (512) 485-3121

ATTORNEYS FOR THE STATE OF TEXAS ACCEPTED 03-15-00063-CR 5240283 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/11/2015 10:58:13 PM JEFFREY D. KYLE

CLERKi TABLE OF CONTENTS

I ndex Of Authorities

................................ ................................ ................................ . ii Questions

................................ ................................ ................................ .................. vi
S ummary Of R esponse

................................ ................................ ............................... 1
R esponse

................................ ................................ ................................ .................... 2

I. Facts developed in trial court are relev ant when the interpretation and

m eaning of the critical alle gations in the indictment are in dispute.

............... 2

A. Principles of justiciability require remand to the trial court.

..................... 4
1. No factual record thwarts the justiciability of the overbreadth challenge

................................ ................................ ................................ ..... 6
2. The vagueness challenge should also be reserved until after trial.

...... 10

B. Appellant’s as

- applied claims improperly rely upon an interpretation of what is alleged in the indictment.

................................ ......................... 11
1. Appellant must present evidence to be entitled to relief on his claims of Speech or Debate privilege.

................................ ........... 15
2. Appellant must present evidence to be entitled to relief on hi s claim of legislative immunity.

................................ ....................... 16
3. Appellant must present evidence to be entitled to relief on his claim of separation of powers immunity.

................................ ...... 16

Prayer

................................ ................................ ................................ ....................... 17
Certificate of C ompliance

................................ ................................ ........................ 19
C ertificate Of Service

................................ ................................ ............................... 20ii INDEX OF AUTHORITIES

Cases 281 Care Comm. v. Arneson
, 638 F.3d 621 (8th Cir. 2011)

................................ ................................ .................. 8

Alabama State Fed'n of Labor, Local Union No. 103, United Broth. of Carpenters & Joiners of Am. v. McAdory
, 325 U.S. 450 (1945)

................................ ................................ ................................ 4

B arnes v. State
, 116 S.W.2d 408 (1938)

................................ ................................ ........................... 2

Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989)

................................ ................................ ............................ 7, 8

Bell v. State
, 243 S.W. 1095 (1922)

................................ ................................ ............................. 2

Broadrick v. Oklahoma, 413 U.S. 601 (1973).

................................ ................................ ........................... 7, 8

Buchanan v. State
, 52 S.W. 769 (1899)

................................ ................................ ................................ . 2

Colautti v. Franklin
, 439 U.S. 379 (1979).

................................ ................................ ............................. 11

Costello v. United States
, 350 U.S. 359 (1956).

................................ ................................ ............................... 2iii

Ely v. State
, 582 S.W.2d 416 (Tex. Crim. App. 1979).

................................ ............................ 10

Ex parte Boetscher
, 812 S.W.2d 600 (Tex. Crim. App. 1991).

................................ ............................ 12

Ex parte Bohannan, 350 S .W.3d 116 (Tex.Crim.App.2011)

................................ ................................ .. 6

Ex parte Heilman
, 456 S.W.3d 159 (Tex. Crim. App. 2015)

................................ ............................. 13

Ex parte Nelson, 815 S.W.2d 737 (Tex.Crim.App.1991) (per curiam)

................................ ............. 6

Ex parte Weise, 55 S.W.3d 617 (Tex.Crim.App.2001)

................................ ................................ .. 14

Gallo v. State, 239 S.W.3d 757 (T ex.Crim.App.2007)

................................ ................................ .. 6

Gonzales v. State
, 648 S.W.2d 684 (Tex.Cr.App.1983).

................................ ................................ .... 12

Gravel v. United States
, 408 U.S. 606 (1972).

................................ ................................ ............................. 15

Grayned v. City of Rockford
, 408 U.S. 104 (1972).

................................ ................................ ............................. 10

Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6 (1970)

................................ ................................ ................................ .... 8

Guzm an v. State
, 955 S.W.2d 85 (Tex. Crim. App. 1997).

................................ .............................. 11iv

Hampton v. State
, 86 S.W.3d 603 (Tex. Crim. App. 2002)

................................ ............................... 11

Hoover v. Beto, 439 F.2d 913 (5th Cir.1971)

................................ ................................ ................. 14

Long v. State
, 931 S.W.2d 285 (Tex. Crim. App. 1996).

................................ ............................ 10

Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985).

................................ ................................ .... 12

N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982).

................................ ................................ ............................... 9

Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264 (1974)

................................ ................................ ................................ 8

Org. for a Better Austin v. Keefe
, 402 U.S. 415 (1971).

................................ ................................ ............................... 9

Papa christou v. City of Jacksonville
, 405 U.S. 156 (1972).

................................ ................................ ............................. 11

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439 (Tex. 1998)

................................ ................................ ................. 4

Phillips v. State
, 362 S.W.3d 606 (Tex.Crim.App.2011).

................................ ............................... 13

Proctor v. State
, 967 S.W.2d 840 (Tex. Crim. App. 1998).

................................ ............................ 13

Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974)

................................ ................................ ................................ 6v

Renne v. Geary
, 501 U.S. 312 (1991).

................................ ................................ ............................... 7

State ex rel. Watkins v. Creuzot, 352 S.W.3d 493 (Tex.Crim.App.2011)

................................ ................................ .. 6

State v. Rosenbaum
, 910 S.W.2d 934 (Tex. Crim. App. 1994), on reh'g (Dec. 6, 1995)

...................... 14

Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973)

................................ ................................ ..... 14

Texas Ass'n of Bus. v. Texas Air Control Bd
., 852 S.W.2d 440 (Tex. 1993).

................................ ................................ ................. 4

Watts v. United States
, 394 U.S. 705 (1969)

................................ ................................ ................................ 9

Statutes T EX

. P ENAL C ODE § 1.07(a)(9)(F)

................................ ................................ .............. 2 T EX

. P ENAL C ODE § 25.05(g)(2)

................................ ................................ .............. 12 T EX

. P ENAL C ODE § 36.03(a)(1)

................................ ................................ ................ 2

Other Authorities 13A WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3532.3, at 147 (2d ed.1984).

................................ ................................ ................ 4 N ICHOL , Ripeness and the Constitution, 54 U. CHI. L.REV. 153, 169 (1987)

......... 4 T ERRI R. D AY , “Nasty as They Wanna be Politics:” Clean Campaigning and the First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009)

................................ ...... 8vi QUESTIONS

1. How do actions in the trial court affect the justiciability of the issues on appeal?

2. When Appellant directs this Court to look to “the face of the indictment” to resolve his claims, what happens when the language in the indictment changes?1 SUMMARY OF RESPONSE

After Appellant was indicted, he filed a writ claiming the indictment was
invalid because the attorney pro tem was not properly sworn into office. The
parties exchanges briefs, but the matter was only resolved when the trial court
conducted a hearing. The hearing took only a few hours. All necessary facts and

evid ence were introduced by the State. The trial court rendered an opinion. The

matter was settled.
Though this writ also argues the State lacks authority to prosecute Appellant,
the State should not be denied an opportunity to present its evidence. An

indi ctment has never been the place for the State to plead its evidence, yet
Appellant seeks final disposition in this case by challenging the sufficiency of the
evidence alleged in the indictment.
Facts provide a fulcrum for legal leverage, and absent a reco rd, everything
that happens in trial court is both relevant and necessary for the justiciability of the
issues on appeal. Certainly all of Appellant’s as

- applied challenges should
necessarily rely upon factual evidence. Even the facial challenges could be better

resolved if there were facts in the record. The resolution of these issues is made
more difficult by the opposing sides’ conflicting interpretations of what are merely
hypothetical facts. To avoid piecemeal litigation, principles of justiciability warrant

remand to the trial court.2 RESPONSE

I. Facts developed in trial court are relevant when the interpretation and meaning of the critical allegations in the indictment are in dispute.

By attempting to frame his appeal as limited solely to the stat ute and the
indictment, Appellant is indirectly challenging the sufficiency of the evidence
supporting the indictment. Importantly, courts have consistently refused to go
behind the indictment when evidentiary matters are alleged. 1 As Justice Black

stated:
If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defenda nt could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. 2

Appellant’s arguments that Texas Penal Code Sections 36.03(a)(1) and

1.07(a)(9)(F) are facially vague and overbroad are purely legal. But when
Appellant asserts a right not to be tried, except for bribery, he challenges the
sufficiency of evide nce in the indictment. When he argues the right to speak to his

1 See Barnes v. State , 116 S.W.2d 408 (1938) (insufficient evidence); Bell v. State , 243 S.W. 1095 (1922) (illegal evidence); Buchanan v. State , 52 S.W. 769 (1899) (incompetent evidence).
2 Costello v. Un ited States , 350 U.S. 359, 363 (1956).3

staff in deliberations about a veto, he challenges the admissibility of evidence used
to secure an indictment. And when he argues that he is being illegally prosecuted

for a valueless veto an d not for the underlying dollar amount of the Public Integrity
Unit funding, he refers to mixed questions of fact and law. In doing so, Appellant
is seeking exactly the kind of “preliminary trial” that Justice Black warned against.

These types of challeng es are distinctly different than “purely legal” claims.
In this appeal, Appellant seeks to challenge the evidence before the State has even
presented it. For nine months the parties have exchanged hundreds of pages of

briefs on these issues.

We are no cl oser to a resolution.
This would not be a complicated criminal case if there were already facts in
the record. The scope of the indictment covers a narrow window of conduct. The
evidence largely consists of lay witness testimony. The parties have estab lished
entrenched positions: Appellant argues he has a Constitutional right to make
coercive threats and veto prosecutorial appropriations, and the State argues it has
an absolute right to prosecute him for doing so based on his motives.

A trial could res olve what legal briefs to this Court cannot.

After a trial, with evidence then in the record, this Court could at that time
be called upon to address every legal issue raised by Appellant. However, until

such evidence is in the record, this Court is fac ed with deciding these legal issues4

by considering merely hypothetical facts and claims of concessions and admissions
made by lawyers in briefs. Further, conflicting interpretations of these
hypothetical facts will necessarily persist, permeating even the facial challenges to

the statute.

A. Principles of justiciability require remand to the trial court.

A justiciable controversy must be distinguished from an advisory opinion,
which is prohibited under both the Texas and federal constitutions. 3 The

dis tinctive feature of an advisory opinion is that it decides an abstract question of
law without binding the parties. 4 The interests of justice are advanced and an
effective judgment is rendered when the Court may apply the law to a concrete set

of facts. 5 “Litigation based upon hypothetical possibility rather than concrete fact is
apt to be poor litigation. The demand for specificity, therefore, stems from a
judicial desire for better lawmaking.” 6

In this case, after nine months of litigation, the only un controverted facts are
that Appellant is the former Governor of Texas, that Rosemary Lehmberg is the
elected District Attorney of Travis County, and that the funding for the Public

3 Texas Ass'n of Bus. v. Texas Air Control Bd ., 852 S.W.2d 440, 444 (Tex. 1993).
4 Id . at 444.
5 Alabama State Fed'n of Labor, Local Union No. 103, United Broth. of Carpe nters & Joiners of Am. v. McAdory , 325 U.S. 450, 460 (1945)
6 Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998) quoting Nichol, Ripeness and the Constitution, 54 U. CHI. L.REV . 153, 169 (1987) ; 13A WRIGHT ET AL., FE DERAL PRACTICE AND PROCEDURE, § 3532.3, at 147 (2d ed.1984).5

Integrity Unit was eliminated. We also know that the offense took place in Travis
County. Both sides have acknowledged that both Perry and Lehmberg are public
servants. Finally, the indictment was returned within the statute of limitations.
These types of facts are immutable. These types of facts are fixed. These types of

fact s are not subject to context or witness credibility or interpretation.
But these are not the types of facts that resolve Appellant’s claims. These are
the only facts for this Court to consider at this point because no other substantive
hearings have be en held. The trial court has been hampered thus far by Appellant’s
continual attempts to resist getting to the facts. While neither the State’s proposed

amendments to the indictment nor the Bill of Particulars alter the justiciability of
Appellant’s facial challenges, because all other challenges involve a mixture of
facts and law, trial court developments are necessary to resolve his claims.
General principles of justiciability demand the development of a factual

record. Without concrete facts to anchor legal analysis, any decision by this Court
would be subject to appeal when the losing party argues that the Court decided the
case on the wrong set of hypothetical facts. Any decision by the trial court on the
pending motions to quash and objections to th e Bill of Particulars will affect the
cognizability of the as

- applied challenges based upon the “face of the indictment.”

The State could seek to amend the indictment again. The trial court could order the
State to do so. Even if Judge Richardson denies t he current two pending motions to6

quash, Appellant has the right to file additional motions to quash the indictment.
Litigation in trial court will continue up until trial, and until trial, without a factual

record, these will continued to be an unresolved issues.
This is why the challenges raised here “on the face of the indictment” are
nonjusticiable mixed questions of fact and law at this stage of the proceedings.
Justiciability concerns not only the standing of litigants to assert particular claims,

bu t also the appropriate timing of judicial intervention. 7 A court may delay
resolution of constitutional questions until a time closer to the actual occurrence of
the disputed event, or when a better factual record might be available. 8 This places
two pri nciples in conflict: Appellant’s claim that he has a not right to be tried, and
Justice Black’s opinion that the trial court is the best forum to resolve Appellant’s

claims.

1. No factual record thwarts the justiciability of the overbreadth challenge.

T rial court developments would not ordinarily matter to a facial challenge to
a statute. But cases involving the First Amendment are different. In Renne v.

7 See Regi onal Rail Reorganization Act Cases, 419 U.S. 102, 136

– 148 (1974) ; see also State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 504

– 06 (Tex.Crim.App.2011) (considering ripeness of

c riminal defendant's pretrial declaratory judgment claim that the State could not execute him); Ex parte Bohannan, 350 S.W.3d 116, 119

– 20 (Tex.Crim.App.2011) (analyzing justiciability of parolee's habeas claims); Gallo v. State, 239 S.W.3d 757, 780 (Tex.Crim.App.2007) (assessing justiciability of habeas challenge to the manner of an impending execution); Ex parte Nelson, 815 S.W.2d 737, 738

– 39 (Tex.Crim.App.1991) (per curiam) (determining applicability of an exception to mootness).
8 Regional Rail Reorganization Act Cases
, at 143.7

Geary , the Court addressed the propriety of resolving a facial challenge to the
constitutionality o f statute without first addressing its application to a particular set

of facts. 9 The Court explained, “In some First Amendment contexts, we have
permitted litigants injured by a particular application of a statute to assert a facial
overbreadth challenge, one seeking invalidation of the statute because its
application in other situations would be unconstitutional.” 10 “[T]he better course
might have been to address in the first instance the constitutionality of ... as
applied in the context of [the voter pamp hlets at issue].” 11 Justice Kennedy
explained the reason behind waiting for all the facts to be developed:

The free speech issues argued in the briefs filed here have fundamental and far

- reaching import. For that very reason, we cannot decide the case base d upon the amorphous and ill

- defined factual record presented to us. Rules of justiciability serve to make the judicial process a principled one. Were we to depart from those rules, our disposition of the case would lack the clarity and force which ought t o inform the exercise of judicial authority. 12

Justice Scalia said the same in Board of Trustee of State University of New York v.

Fox :

It is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily

that is, before it is determined that the statute would b e valid as applied. Such a course would convert use of the overbreadth doctrine

9 Renne v. Geary , 501 U.S. 312, 323

- 24 (1991).
10 Id . at 323, citing Broadrick v. Oklahoma, 413 U.S. 601 (197 3).
11 Id. at 324.
12 Id.8

from a necessary means of vindicating the plaintiff's own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws. Moreover, the overbreadth question is ordinarily more difficult to resolve than the as

- applied , since it requires determination whether the statute's overreach is substantial, not only as an absolute matter, but “judged in relation to the statute's plainly legitimate sweep,” [] and therefore requires consideration of many more applications than those immediately before the court. Thus, for reasons relating both to the proper functioning of courts and to their efficiency, the lawfuln ess of the particular application of the law should ordinarily be decided first. 13

Further, First Amendment cases involving criticism or defamation against
public officials are difficult to decide

– even with a factual record. Courts and

scholars constantl y struggle to draw a line between knowingly or recklessly false
statements and uses of rhetoric, exaggeration, and ideologically

- derived facts. 14

The First Amendment cases cited by Appellant regarding coercive threats involve a
rich description of the word s spoken, the listener’s reaction, and the relationship
between parties. In N. A. A. C. P. v. Claiborne Hardware Co. the Supreme Court

13 Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 484

- 85 (1989) (emphasis added), quoting Broadrick v. Oklahoma at 615

. 14 281 Care Comm. v. Arneson , 638 F.3d 621, 636 fn. 1 (8th Cir. 2011) citing Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (allegedly false statement that city council member blackmailed someone was “no more than rhetorical hyperbole”); Old Dominion Branch No. 496, Nat'l Ass'n of Letter C arriers v. Austin, 418 U.S. 264, 284 (1974) (holding that the use of the word “traitor” could not be reasonably interpreted as a representation of fact because it was used “in a loose, figurative sense to demonstrate the union's strong disagreement with the views of those workers who oppose unioniz ation”); Terri R. Day, “Nasty as They Wanna be Politics:” Clean Campaigning and the First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009) (“Often characterized as hyperbole and overstatement, campaign speech is meant to persuade and , as such, tends toward exaggeration, to vilification ... and even to false statement.”) (internal quotation omitted).9

was able to review 8 months of trial testimony from over 144 witnesses. 15 The

Court also included the entire text of the c ivil rights organizer’s speech and

included it in the appendix to the opinion of the Court. 16 In Org. for a Better Austin

v. Keefe the Court had the benefit of the trial court testimony as well as copies of

the leaflets at issue in the lawsuit. 17 In Watts v. United States the Court had the
benefit of hearing the facts elicited in a jury trial. In Watts , the Court was able to
analyze the statement “If they ever make me carry a rifle the first man I want to get
in my sights is L.B.J.” in the context of the poli tical rally on the Washington
Monument grounds. 18 The Court noted that the crowd broke up into “small
discussion groups” and that Watts “joined a gathering scheduled to discuss police
brutality.” 19

In each of these cases, the facts developed in the trial c ourt were critical to
the Court’s decision. No such details are present in record in this case. While
some cases may be more complicated than others, it is the facts which provide a
foundation for the judiciary’s analysis and the resulting guidance to lo wer courts.
Courts cannot fully resolve claims having to guess at facts or glean them from an

indictment. No complex issue in this appeal can be resolved simply by an
exchange of assertions by the lawyers.

15 N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 890 (1982).
16 Id., at 934

- 40.
17 Org. for a Better Austin v. Keefe , 402 U.S. 415, 417 (1971).

18 Watts v. United States , 394 U.S. 705, 706 (1969)

. 19 Id.10

2. The vagueness challenge should also be reserve d until after trial.
The State’s proposed changes to the indictment do not affect a statutory
vagueness challenge, and neither do trial court developments. But as with the
overbreadth challenge, general principles of justiciability warrant the suggestion

that as

- applied challenges should be addressed first.
Again, every single case cited in Appellant’s brief in support of his
vagueness challenge was decided after a trial. By taking them up after the trial, an
appellate court is able to decide both the a s

- applied challenge and the facial
challenge at the same time in order to avoid piecemeal litigation. In Long v. State
, the appellant was convicted under the stalking provision of the harassment statute

and then advanced his claim that the statute was unco nstitutionally vague on its
face, as well as vagueas applied to his conduct. 20 In Grayned v. City of Rockford
, the appellant was convicted for his part in a demonstration in front a high school;
again, after his conviction, he challenged the constitutionali ty of two ordinances. 21

In Ely v. State, the appellant challenged the vagueness of the statute after the jury
found him guilty of four misdemeanor convictions for deceptive business
practices. 22

20 Long v. State , 931 S.W.2d 285, 287 (Tex. Crim. App. 1996).
21 Grayned v. City of Rockford , 408 U.S. 104, 105 (1972).
22 Ely v. State , 582 S.W.2d 416, 418 (Tex. Crim. App. 1979).11

Even when the entire point of litigation is to challenge the constitutionality
of a statute, such as in determining the meaning of “viability” in abortion cases, the

appellate courts have still had the benefit of a trial. 23 Similarly, i n Papachristou v.

City of Jacksonville , eight defendants successfully invalidated a vagrancy

ordinance after they were convicted at trial. 24

B. Appellant’s as

- applied claims improperly rely upon an interpretation of what is alleged in the indictment.

The phrase “face of the indictment” is used 16 times in Appellant’s Brief;
Appellant contends t hat all facts necessary for justiciability can be ascertained
from the face of the indictment. But this necessarily means that this Court must
then refer to trial court developments pertaining to the indictment.
Unlike the facial challenges, Appellant’s as

- applied challenges are not based
in pure law. “The meaning of words and phrases used in a statute is a question of
pure law; and the application of the scope of a statute to specific, undisputed
historical facts is a mixed question of law and fact.” 25 F or example, the question of
voluntariness of consent in a Fifth Amendment context presents a mixed question

of fact and law. In such a case, before a factfinder could consider evidence

obtained as a result of the consent, the factfinder would first need to determine,

23 Colautti v. Franklin , 439 U.S. 379, 384 (1979).
24 Papachristou v. City of J acksonville , 405 U.S. 156 (1972).
25 Hampton v. State , 86 S.W.3d 603, 611 (Tex. Crim. App. 2002) ; see also Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997).12

from the totality of all the circumstances, that the consent was voluntary. 26 Every
Fourth Amendment search and seizure question must turn on the facts of that
particular case. 27 The same is true on questions to be determined as a matter of law
, such as whether a statement is material in a prosecution for aggravated perjury.

The three as

- applied challenges raised in Appellant’s writ require factual

development beyond what can be determined simply by looking to the charging
instrument. Appellan t cites Ex parte Boetscher for the proposition that the Court

can determine an as

- applied challenge using the indictment alone. Few cases are
as simple or unusual as Ex parte Boetscher. In Ex parte Boetscher , the Court

decided an as

- applied equal protecti on challenge on the face of the indictment
because it was uncontroverted that the appellant lived out of state. 28 On its face, the

statute treated in

- state residents differently from out

- of

- state residents. 29 The
appellant’s out

- of

- state residence was the gr avamen of the enhanced penalty for
criminal nonsupport of his Texas children. 30 The issue was precise. His out

- of

- state
residence was not subject to interpretation. The facts necessary for justiciability

could be ascertained from the face of the indictment.

Ex parte Boetscher is an example of a “pure law” challenge that is

26 Meeks v. State, 692 S.W.2d 504, 510 (Tex.Cr.App.1985).
27 Gonzal es v. State , 648 S.W.2d 684, 687 (Tex.Cr.App.1983).
28 Ex parte Boetscher , 812 S.W.2d 600, 601 (Tex. Crim. App. 1991).
29 Id . at fn. 1, citing T EX

. P ENAL C ODE § 25.05(g)(2) “An offense under this section is a felony of the third degree if the actor commits the offense while residing in another state.”
30 Id . at 602.13

justiciable using only the language in the indictment. These are the types of

c hallenges limited to matters like limitation s issue may be r esolved using only the

face of the indictment. I n contrast to Appellant ’ s claims , two cases, Phillips v.

State 31 and Pr

octor v. State
, 32 illustrate that not all challenges “on the face of the

indictment” are the same. Both Phillips and Proctor involved claims that
prosecution was outside the statute of limitations. In those decisions, the Court of
Criminal Appeals distinguished between two types of challenges: those challenges
“based on facts” alleged in the indictment (like a tolling allegation), as opposed to
claims that are “pure law,” that show that on the face of the indictment t hat
prosecution is absolutely barred by the statute of limitations. 33 The Court held that
a “based on facts” challenge merely “gives rise to a limitations factual defense”
because further factual development is required beyond simply the charging

instrument . By contrast, a “pure law” challenge appears on the face of the
instrument and therefore “gives rise to a statute

- of

- limitations bar” that constitutes
a jurisdictional defect. 34 Recently in Ex parte Heilman, the Court overturned
Phillips’ distinction as it affected whether a statute of limitations defect can be

waived. 35 But the explanation of what can be determined “on the face of the
indictment” is still illustrative and demonstrates why Appellant’s claims are

31 Phillips v. State , 362 S.W.3d 606 (Tex.Crim.App.2011).
32 Proctor v. State , 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).
33 Ex parte Heilman , 456 S.W.3d 159 (Tex. Crim. App. 2015)

. 34 Id. ci ting Phillips at 617

. 35 Id.14

nonjusticiable.
Thus, the question becomes: Are the legal challenges in this appeal akin to
the simple determination of whether the indictment pleads an offense within the
statute of limitations, or are they more similar to more complex determinations as a

matter of law, like voluntariness of consen t or materiality of a statement? 36 If the
answer is anything more than looking to the indictment to determine whether the
prosecution is within the statute of limitations, the State should be entitled to
present its evidence.
And that is exactly what we wo uld ask this Court to allow to happen here.
For nearly a century, the Court of Criminal Appeals has continuously held that
pretrial writs are not be used to test the sufficiency of an indictment or to construe
the meaning and application of a statute def ining the offense charged in an

indictment. 37

The prosecution should be allowed to move forward to trial to present its
evidence, after which, if Appellant is convicted, he can reurge his challenges in

this Court with a clear factual record to elucidate the issues. A “preliminary trial”

36 Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973) (citing Hoover v. Beto, 439 F.2d 913 (5th Cir.1971) ). See also State v. Rosenbaum , 910 S.W.2d 934, 947 (Tex . Crim. App. 1994), on reh'g (Dec. 6, 1995) (“Appellee's mo tion is in effect an effort to cause the judge to go behind the face of the indictment before trial to see if there is sufficient evidence to support the alleged ‘materiality’ element in the offense of perjury.)
37 Ex parte Weise, 55 S.W.3d 617, 620 (Tex.C rim.App.2001)

.15

such as rejected by Justice Black should not be allowed to proceed instead at this
stage and in this Court.

1. Appellant must present evidence to be entitled to relief on his claims of Speech or Debate privilege.

Whether a governor is entitled to Speech or Debate privilege is a purely
legal issue. The Court may determine, as a matter of law, that a governor is not
entitled to ever assert a Speech or Debate privilege under the separation of powers

doctrine. However, it doe s not work the other way. In order to determine that this
Appellant

- this governor

- can indeed assert the privilege, and is therefore immune
from prosecution in this case, requires specific facts to resolve the issue. This is
why the Bill of Particu lars and potential hearings in the trial court matter.
If Appellant is eligible to assert the privilege, it is the trial court, in a
hearing, that would determine if any evidence was obtained in violation of the
privilege. In United States v. Gravel , the Supreme Court held that a United States
Senator had no testimonial privilege from being questioned by a federal grand jury
about whether he distributed classified government documents because the
communications were outside the scope of legislative activi ty. 38 The court also

focused on whether the communication was “essential to the deliberations of the
Senate” and whether the request by the grand jury would “threaten the integrity or
independence of the Senate by impermissibly exposing its deliberations to

38 Gravel v. United States , 408 U.S. 606, 624

– 625 (1972).16

executive influence.” 39

The State’s Bill of Particulars articulates that Appellant was not engaged in

communication that would be protected under the privilege. Appellant reads the
same language in the Bill of Particulars and interprets it to mean that he is
protected by the privilege. But whether or not the Speech or Debate privilege
applies to the conduct in this case is a mixed question of fact and law. The pattern

is consistent with all as

- applied challenges in this writ: the Court may deny relief to

A ppellant as a matter of law, but in order for the Court to grant relief there must be
facts in the record to support his claims.

2. Appellant must present evidence to be entitled to relief on his claim of legislative immunity.

Whether a governor is entitl ed to legislative immunity is a purely legal issue.
But whether or not Appellant’s actions in this case were official actions or actions

made in his personal capacity require development of facts in the record. Thus,
further developments in the trial court are necessary for justiciability.

3. Appellant must present evidence to be entitled to relief on his claim of separation of powers immunity.
Appellant further presents a purely legal issue in his claim of immunity
based on separation of powers. The quest ion here is whether the separation of

39 Id. at 625.17

powers doctrine insulates a governor from judicial review over any of his
constitutionally proscribed powers absent an allegation of bribery. Again, the
Court may reject Appellant’s separation of powers argument on it s face without
any reference to the trial court developments.
However, in addressing the as

- applied challenge, the resolution of this issue
depends on whether Appellant is being prosecuted for a political decision to veto
an item of appropriation or, inst ead, for unlawfully misusing the Public Integrity
funds to harm Ms. Lehmberg for not resigning. It is a question of fact, and the Bill

of Particulars describes the basis for these facts in detail.

PRAYER

While this is not a complicated case factua lly, the absence of a record makes
this an unnecessarily complex case legally. Appellee respectfully prays that this
Court uphold the constitutionality of the statutes at issue, or, in the alternative,

remand this case to the trial court until a factual re cord is thoroughly established.18 Respectfully submitted,

/s/ Michael McCrum M ICHAEL M C C RUM State Bar No. 13493200 District Attorney Pro Tem Travis County, Texas 700 N. St. Mary’s St., Suite 1900 San Antonio, TX 78205 Telephone: (210) 225

- 2285 Facsimile: (210) 225

- 7045 michael@mccrumlegal.com

/s/ David M. Gonzalez D AVID M. G ONZALEZ Assistant District Attorney Pro Tem Travis County, Texas 206 East 9 th Street, Suite 1511 A ustin, Texas 78701 Telephone: (512) 381

- 9955 Facsimile: (512) 485

- 3121 david@sg

- llp.com

ATTORNEYS FOR THE STATE OF TEXAS19 CERTIFICATE OF COMPLIANCE

P ursuant to T EX .R.A PP

. P . 9.4(i)
, I hereby certify that this document was
generated by a computer using Microso ft Word which indicates that the word

count of this document except the table of contents, index of authorities, q uestions
presented
, signature, proof of service, certification, and certificate of compliance is

4,380 words.

/s/ Mich ael McCrum Michael McCrum20 CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2015, a true and correct copy of Appellee’s
Brief was served on the following parties in accordance with the requirement of the
Texas Rules of Appellate Procedure via electronic filing:

David L. Botsford Botsford & Roark 1307 West Ave. Austin, TX 78701 (512) 479

- 8040 Facsimile dbotsford@aol.com
Thomas R. Phillips Baker Botts, L.L.P. 98 San Jacinto Blvd., Ste. 1500 Austin, TX 78701 (512) 322

- 8363 Facsimile Tom.phillips@bakerbotts.com
Anthony G. Buzbee The Buzbee Law Firm 600 Travis St., Ste. 7300 Houston, TX 77002 (713) 223

- 5909 Facsimile tbuzbee@txattorneys.com

/s/ Michael McCrum Michael McCrum