in Re the State of Texas Ex Rel Jana Duty, District Attorney, Williamson County v. Honorable Rick J. Kennon, Judge 368th District Court, Real Party in Interest Crispin James Harmel ( 2015 )

WR-83,585-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/15/2015 4:12:09 PM
Accepted 7/16/2015 8:26:00 AM
ABEL ACOSTA
No. - -___ CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
RECEIVED
COURT OF CRIMINAL APPEALS
7/16/2015
ABEL ACOSTA, CLERK
IN RE JANA DUTY,
RELATOR
IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY
FOR THE STATE OF TEXAS, WILLIAMSON COUNTY
RELATOR’S PETITION FOR WRIT OF MANDAMUS
ORAL ARGUMENT NOT REQUESTED
TRIAL COURT CAUSE NUMBER 13-0826-K277
IN THE 368TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
HON. RICK J. KENNON
J. Woodfin Jones Brent Webster
State Bar No. 10911700 State Bar No. 24053545
ALEXANDER DUBOSE Assistant District Attorney
JEFFERSON & TOWNSEND LLP 405 MLK Street, #1
515 Congress Avenue, Suite 2350 Georgetown, Texas 78626
Austin, Texas 78701 Telephone: (512) 943-1234
Telephone: (512) 482-9300 Facsimile: (512) 943-1255
Facsimile: (512) 482-9303 bwebster@wilco.org
wjones@adjtlaw.com
IDENTITY OF PARTIES AND COUNSEL
Relator – Jana Duty, District Attorney, 405 M.L.K. Street, #1, Georgetown,
Texas 78626.
Counsel for Relator – Brent Webster, Assistant District Attorney, Eric
Gutierrez, Special Prosecutor, 405 M.L.K Street, #1, Georgetown, Texas 78626.
J. Woodfin Jones, Alexander, Dubose, Jefferson & Townsend, LLP, 515 Congress
Ave., Suite 2350, Austin, TX 78701.
Respondent – Hon. Rick J. Kennon, Judge, 368th District Court, 405
M.L.K. Street, Georgetown, Texas 78626.
Real Party in Interest – Crispin James Harmel, represented in the
underlying criminal prosecution by attorneys Kristen Jernigan, 207 S. Austin Ave.,
Georgetown, Texas 78626, Ryan Deck, 107 N. Lampasas, Round Rock, Texas
78664, and R. Scott Magee, 107 N. Lampasas, Round Rock, Texas 78664.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF JURISDICTION......................................................................... 2
ISSUE PRESENTED ................................................................................................ 2
STATEMENT OF FACTS ....................................................................................... 2
SUMMARY OF THE ARGUMENT ..................................................................... 10
THE COURT SHOULD GRANT RELIEF THROUGH A
WRIT OF MANDAMUS ....................................................................................... 11
ARGUMENT AND AUTHORITIES ..................................................................... 17
I. No Adequate Remedy at Law ......................................................................... 17
II. Clear Entitlement to Relief ............................................................................ 18
A. The gag order is an unconstitutional prior restraint ................................... 18
B. A court abuses its discretion when it places prior restraints on a party
without following the two-pronged Davenport analysis............................. 20
1. The gag order contains no specific findings that an imminent and
irreparable harm will deprive litigants of a just resolution of
their dispute ............................................................................................. 25
2. The gag order is not the least restrictive means to prevent the harm ....... 27
ii
C. The State did not request or agree to the gag order signed by Respondent
Court............................................................................................................ 29
D. The gag order signed by the Respondent Court is void and therefore can be
attacked by the State irrespective of any prior request or agreement ........ 32
E. Relator and the public are harmed by the unconstitutional gag order ........ 36
PRAYER ................................................................................................................. 38
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 ........................ 40
CERTIFICATE PURSUANT TO TEX. R. APP. P. 52.3(j) ................................... 41
CERTIFICATE OF SERVICE ............................................................................... 42
iii
INDEX OF AUTHORITIES
FEDERAL CASES
Alexander v. U.S.,
509 U.S. 544 (1993)......................................................................................19
Ex parte Siebold,
100 U.S. 371 (1879)......................................................................................33
Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991)..................................................................15, 16, 23, 37
U.S. v. Brown,
218 F.3d 415 (5th Cir. 2000).............................................................23, 24, 25
STATE CASES
Conlin v. Darrell Haun & Solarcraft, Inc.,
419 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2013)..............................34
Davenport v. Garcia,
834 S.W.2d 4 (Tex. 1992)...................................12, 13, 18, 19, 21, 25, 27, 35
Ex parte Foster,
71 S.W. 593 (Tex. Crim. App. 1903)......................................................12, 33
Ex parte McCormick,
88 S.W.2d 104 (Tex. Crim. App. 1935) (orig. proceeding)..........................12
Ex parte Tucci,
859 S.W.2d 1 (Tex. 1993).............................................................................21
Grigsby v. Coker,
904 S.W.2d 619 (Tex. 1995)...................................................................13, 31
Henke v. Peoples State Bank of Hallettsville,
6 S.W.3d 717 (Tex. App.—Corpus Christi 1999, pet. dism’d w.o.j.)...........35
In re Benton,
238 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 2007, no pet.)..13, 23, 24
iv
In re Garza,
126 S.W.3d 268 (Tex. App.—San Antonio 2003, no pet.)...............33, 34, 35
In re Graves,
217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.)................................13, 22
In re Jana Duty,
No. 03-15-00320-CV, 2015 Tex. App. LEXIS 5421
(Tex. App.—Austin May 28, 2015, orig. proceeding) (mem. op.).................8
In re Jana Duty,
No. 03-15-00360-CV, 2015 Tex. App. LEXIS 6082
(Tex. App.—Austin June 17, 2015, orig. proceeding) (mem. op.)...............10
In re Perritt,
992 S.W.2d 444 (Tex. 1999).........................................................................17
Kennedy v. Eden,
837 S.W.2d 98 (Tex. 1992)...........................................................................18
Low v. King,
867 S.W.2d 141 (Tex. App.—Beaumont 1993, no writ)..............................13
Marketshare Telecom, L.L.C. v. Ericsson, Inc.,
198 S.W.3d 908 (Tex. App.—Dallas 2006, no pet.).....................................19
Neveu v. Culver,
105 S.W.3d 641 (Tex. Crim. App. 2003), subsequent mandamus
proceeding sub nom. In re Neveu, 14-07-00589-CV, 2007 WL 2198825
(Tex. App.—Houston [14th Dist.] Aug. 2, 2007).........................................13
Operation Rescue-Nat’l v. Planned Parenthood,
975 S.W.2d 546 (Tex. 1998).............................................................20, 33, 34
San Antonio Express-News v. Roman,
861 S.W.2d 265 (Tex. App.—San Antonio 1993, no writ)...............13, 19, 22
State v. Patrick,
86 S.W.3d 592 (Tex. Crim. App. 2002)........................................................14
v
State ex rel. Hill v. Court of Appeals for Fifth Dist.,
34 S.W.3d 924 (Tex. Crim. App. 2001)........................................................14
State ex rel. Rosenthal v. Poe,
98 S.W.3d 194 (Tex. Crim. App. 2003)........................................................13
State of Texas v. Wachtendorf,
No. 03-14-00633-CR, 2015 WL 894731 (Tex. App.—Austin
Feb. 26, 2015) (pet. granted April 29, 2015, PD-0280-15)…......................30
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992).........................................................................14
STATUTES
Tex. Crim. Proc. Code Ann. § art. 4.04 (Vernon 2015)...………………………….2
Tex. Crim. Proc. Code Ann. § art. 44.01 (Vernon 2015)...……………………….18
Tex. R. App. P. 72.....................................................................................................2
CONSTITUTIONS
Tex. Const. art. I, § 8...................................................................................11, 18, 19
Tex. Const. art. V, § 5 (amended 2001)……………………………………………2
U.S. Const. amend. I................................................................................................18
vi
STATEMENT OF THE CASE
This mandamus proceeding arises out of the criminal prosecution of Crispin
James Harmel, the Real Party in Interest, for the offense of Capital Murder. The
Defendant’s case is set for trial in November of 2015.
On April 9, 2015, the Respondent Court signed a gag order that broadly
prohibits the parties, attorneys, and the attorneys’ staff, from any communication
with the media/press or publicly commenting about the case. The order excluded
terms the State had previously requested, did not include any findings justifying its
entry, and was not narrowly tailored, thereby violating the constitutional rights of
Relator and more than 40 persons affected by the order. Also, the Respondent
Court did not give notice to Relator that he had signed and entered a written gag
order.
Subsequently, Relator, unaware that a written gag order had been signed,
spoke to a member of the press solely for the purposes of defending herself against
Defense Counsel’s accusations of unethical conduct. Respondent Court then
threatened to hold Relator in contempt of court. These threats continue, with a
contempt hearing scheduled for July 23, 2015. At the time of filing this petition,
there has been discussions to reschedule the hearing to a future date.
The State filed written motions asking the Respondent Court to withdraw the
gag order and later petitioned the Third Court of Appeals to issue a writ of
1
mandamus vacating the order. The relief requested has been denied, both by
Respondent Court and the Third Court of Appeals.
STATEMENT OF JURISDICTION
Jurisdiction of this Honorable Court is invoked pursuant to Tex. Const. art.
V, § 5 (amended 2001); Tex. Crim. Proc. Code Ann. § art. 4.04 (Vernon 2015);
and Tex. R. App. P. 72.
ISSUE PRESENTED
Whether Respondent was without authority or discretion to violate the free speech
rights of Relator by failing, before entering a gag order, to hear evidence and make
specific findings that (1) an imminent and irreparable harm to the judicial process
will deprive the litigants of a just resolution of their dispute, and (2) the judicial
action represents the least restrictive means to prevent that harm.
STATEMENT OF FACTS
On March 18, 2015, approximately two weeks preceding the anticipated
start of the Defendant’s jury trial, Defense Counsel filed a Pre-Trial Motion for
Writ of Habeas Corpus, alleging that Relator, Williamson County District Attorney
Jana Duty, representing the State, had committed prosecutorial misconduct by
withholding timestamps from a surveillance video and by not disclosing the
2
timestamps to Defense Counsel until after the commencement of the first trial. See
Appendix 1. Relator and the State have denied the misconduct accusations,
asserting that the timestamps were included in the video provided to Defense
Counsel and could have been viewed if played on a proper video player. See
Appendix 18 at 229-230. The Respondent Court had granted the Defense’s motion
for mistrial without prejudice on May 7, 2014, ending Defendant’s first trial in the
manner Defense Counsel requested. Id. When granting the mistrial, the
Respondent Court expressly stated on the record that there was no prosecutorial
misconduct. Id.
After filing its Motion for Writ of Habeas Corpus, Defense Counsel granted
several interviews with various local news organizations. See Appendix 14 at 24.
Following the interviews, stories were published regarding the accusations with
titles that included language such as “Prosecutor lied about evidence.” Id. at 25.
As a result of these interviews and considering the proximity of the stories being
published to the anticipated trial date, the State made a general request at a hearing
on March 20, 2015, that a gag order be issued in the case. Id. at 24. At the time of
the March 20, 2015 hearing, the case was set for jury trial on March 31, 2015. See
Appendix 1.
At that hearing, the parties preliminarily discussed with each other and the
Respondent Court the issuance of a gag order. See Appendix 14. The State
3
contended that the Defense Counsel’s media interviews put the State in a
predicament: either not respond and have false allegations and misinformation
continue to circulate unrebutted, or respond and run the risk of over-responding,
which could lead to larger complications. Id. at 24-25. Mark Brunner, First
Assistant District Attorney who is sitting second chair in the Real Party in
Interest’s case, made it clear to the Respondent Court that the attorneys
representing the State would defend themselves from personal attacks and
accusations derived from misinformation, just as the Defense Counsel would if any
attacks or accusations were aimed at them by the State. Id. at 26-27.
The Respondent Court determined that the gag order issue would be taken
up at the next pretrial hearing, and then scheduled the hearing for March 31, 2015.
Id. at 28. The Respondent Court stated that any communications with the media
until the March 31, 2015 hearing were prohibited. Id. The Respondent Court
made clear a willingness to discuss at that hearing the scope of any limitations and
restrictions that should be included in the gag order. Id.
At the end of the pretrial hearing on March 31, 2015, the Respondent Court
again discussed the issuance of a gag order with the parties. See Appendix 15 at
74. Neither party opposed the issuance of a gag order. Id. The Respondent Court
explained that the gag order would restrict all parties from discussing the case with
the media or posting on any social media websites. Id. Additionally, the
4
Respondent Court agreed with the State that the gag order should also restrict
Defense Counsel from discussing the case on the Williamson County Defense
Lawyers Association listserv. Id. at 74-75. The Respondent Court then said the
gag order “applies to [Defense Counsel]’s employees, anyone else you have hired,
it applies to the DA’s Office and anybody that’s hired or with the DA’s Office.”
Id. at 75. The Respondent Court directed Defense Counsel Jernigan to draft the
gag order. Id. at 76. Ms. Jernigan responded that she would “take care of [it].” Id.
at 76.
At the next pretrial hearing held on April 8, 2015, the Respondent Court
noted that he had not received a draft of a written gag order from Defense Counsel.
See Appendix 16 at 89. The following day, April 9, 2015, Defense Counsel
drafted and e-mailed a proposed gag order to the Respondent Court and Mr.
Brunner. See Appendix 4. Mr. Brunner did not discover the proposed gag order
that had been e-mailed on April 9, 2015, and was unaware that it was signed by the
Respondent Court later that same day. See Appendix 18 at 73. Relator, District
Attorney Jana Duty, the first chair prosecutor on the Real Party in Interest’s case,
was not included on the email sent by Defense Counsel to Mark Brunner. See
Appendix 4.
The gag order consists of a single sentence: “The parties, attorneys, and
employees of the attorneys in this case are prohibited from communicating with
5
the press/media regarding this case or publicly commenting on this case during the
pendency of the proceedings.” See Appendix 2. The Respondent Court signed the
proposed order on the same day that Defense Counsel Jernigan sent the email,
April 9, 2015, and filed the order with the District Clerk on April 10, 2015. See
Appendix 2. No hearing was held on April 9, 2015.
On May 6, 2015, Relator Jana Duty, still unaware that a written gag order
had been signed, sent an e-mail to the Respondent Court notifying the court that
Relator planned to contact a reporter at the Austin American Statesman because
the reporter had recently published an online article about the Real Party in
Interest’s case referencing and including details from the Defense Counsel’s latest
pleading. See Appendix 8.2. In the e-mail, Relator stated that she would not
discuss the facts of the case, but would only defend herself against the Defense
Counsel’s accusations against her. Id. The Respondent Court did not respond to
this email. On May 6, 2015, the Austin American Statesman published an article
containing quotes from Relator. See Appendix 8.3.
On May 7, 2015, at 5:22 p.m., the Respondent Court sent an e-mail to the
parties on the case, stating that he wanted to meet with the parties sometime on
May 8, 2015. See Appendix 8.4. Relator responded at 5:51 p.m. that she would be
willing to rearrange her schedule to attend the meeting, but would like notice as to
the topic of the meeting. Id. Without providing such notice, the Respondent Court
6
responded at 5:54 p.m. with a command to meet in the courtroom at 10:30 a.m. the
following day. Id.
On May 8, 2015, the Respondent Court called the Real Party in Interest’s
case, saying he did not have another case number under which to call the
proceeding at the time. See Appendix 17 at 4. The Respondent Court asked for
Relator. Id. Mr. Brunner, who had appeared for the State at many previous
hearings as the second chair prosecutor in the Defendant’s case, told the
Respondent Court that the State was present. Id. The Respondent Court declared
that the State had two options at this point: either get ahold of Relator for her to
appear before the court or the court would issue a capias for Relator’s arrest to get
her to the hearing. Id. Mr. Brunner again asked to know the subject matter of the
hearing, to which the Respondent Court responded: “You’ll know when she shows
up.” Id. at 5.
After a short recess, the hearing continued without Relator’s presence. Id. at
5-6. The Respondent Court summarized events that had transpired in the past few
months. Id. at 7-10. The Respondent Court then concluded that Relator’s quotes
in the article directly violated the gag order and that Relator’s conduct constituted
contempt of court. Id. at 11-12.
On May 12, 2015, the State filed a Motion to Rescind Unconstitutional Gag
Order. See Appendix 3. In its motion, the State (1) argued that the gag order is
7
unconstitutional on its face under both the State and Federal Constitutions, (2)
requested the Respondent Court to rescind and declare void the existing gag order,
and (3) requested the Respondent Court to enter a valid gag order. Id. On May 14,
2015, the State filed a Motion to Enter a Constitutional Gag Order, re-urging the
Respondent Court to rescind and declare void the existing gag order. See
Appendix 5. The State attached a proposed, constitutionally valid gag order to its
motion. Id.
On May 14, 2015, the Respondent Court filed a motion and affidavit laying
out its intent to hold Relator in contempt for violating the gag order. See Appendix
8. On May 15, 2015, Relator was served with an Amended Order to Show Cause
as to why she should not be held in contempt of court for violating the gag order.
See Appendix 10. These documents include notice of a hearing on the show cause
order set for July 6, 2015. See Appendix 7.
On May 27, 2015, Relator District Attorney Jana Duty filed her Petition for
Writ of Mandamus with the Third Court of Appeals, requesting the Court to void
the unconstitutional order and cease all contempt proceedings against Relator. See
Appendix 12. On May 28, 2015, the Petition was denied. In re Jana Duty, No. 03-
15-00320-CV, 2015 Tex. App. LEXIS 5421 (Tex. App.—Austin May 28, 2015,
orig. proceeding) (mem. op.).
8
On May 29, 2015, the Respondent Court held a pre-trial hearing regarding
the disqualification of the District Attorney’s office and the Real Party in Interest’s
Writ of Habeas Corpus. See Appendix 18. At the hearing, Relator took the stand
as a witness. Relator testified under oath that at the time she reached out to the
reporter, she was unaware that a written gag order had been signed and entered in
the case, as the proposed order was never sent to her and had been signed by the
Respondent Court on the same day Defense Counsel sent it to the court. Id. at 31.
Relator was not notified by Respondent Court that a written gag order had been
signed and entered by the court. Relator testified that when she reached out to the
reporter, she did not discuss the facts of the case, only the accusations that were
made against her of withholding evidence. Id. at 35-36. On cross-examination,
Relator further stated that she only contacted the reporter with respect to the
accusations of withholding evidence, not the facts of the case. Id. at 74.
The State orally requested the Respondent Court to rule on its previously
filed motions regarding the gag order. Id. at 95. The Respondent Court summarily
denied the State’s motions, basing its decision on the doctrine of estoppel. Id. at
96-97. The Respondent Court did not address the unconstitutionality of the
existing gag order in denying the State’s motion. Id. at 97. The Respondent Court
went on to state that if the State wanted to enter a subsequent gag order, the State
would have to present evidence at a hearing to justify the specific findings that
9
would be included in the order. Id. at 97. On May 29, 2015, the Respondent Court
issued an Order denying the State’s motions with respect to the gag order. See
Appendix 6. It is this May 29, 2015 order denying the State’s motion that forms
the procedural basis for this mandamus petition.
On June 9, 2015, Relator filed a second Petition for Writ of Mandamus with
the Third Court of Appeals, requesting the Court to void the unconstitutional gag
order and cease all contempt proceedings against Relator. See Appendix 13. On
June 17, 2015, the court of appeals denied the Petition. In re Jana Duty, No. 03-
15-00360-CV, 2015 Tex. App. LEXIS 6082 (Tex. App.—Austin June 17, 2015,
orig. proceeding) (mem. op.).
SUMMARY OF THE ARGUMENT
Respondent Court is without authority or discretion to violate Relator’s free
speech rights by entering a gag order without first hearing evidence and making
appropriate specific findings based on that evidence, pursuant to the Texas
Supreme Court’s holding in Davenport and this Court’s holdings in Ex Parte
Foster and Ex Parte McCormick. Although the State had made a general request
for a gag order, the State did not request the Respondent Court to enter the
unconstitutional gag order prepared by Defense Counsel here. Respondent Court
signed and entered Defense Counsel’s gag order shortly after receiving it. The gag
10
order, which consisted of a one-sentence blanket prohibition that constitutes a
broad prior restraint on the speech of the Relator and multiple others, lacks any of
the specific findings required by law, is not narrowly tailored, and does not use the
least restrictive means to achieve the goals of the order. This renders the gag order
unconstitutional and void. Because the Respondent Court is without authority or
discretion to bypass the process of hearing evidence and making specific findings
supported by that evidence, this Court should grant the requested mandamus relief.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
THE COURT SHOULD GRANT RELIEF THROUGH A
WRIT OF MANDAMUS
Relator is petitioning this Court to mandamus the Respondent Court for
entering an unconstitutional and void gag order that infringes on the constitutional
rights of Relator, a trial participant. This Court should grant Relator leave, hear
this Petition for Writ of Mandamus, and reaffirm the oft-repeated standard for the
protection of free speech rights granted to all Texas citizens by the Texas
Constitution. Tex. Const. art. I, § 8. The Respondent Court refused to withdraw
its gag order even in the face of well-settled Texas law regarding orders that
restrict a person’s free speech rights under the Texas Constitution. That well-
settled law has been articulated by the Texas Supreme Court citing holdings made
by this Court as precedent for its conclusion that injunctions that place prior
11
restraints on speech are presumed unconstitutional unless the trial court hears
evidence and makes specific findings that (1) an imminent and irreparable harm to
the judicial process will deprive the litigants of a just resolution of their dispute,
and (2) the judicial action represents the least restrictive means to prevent that
harm. See Davenport v. Garcia, 834 S.W.2d 4, 9-12 (Tex. 1992) (citing Ex parte
McCormick, 88 S.W.2d 104 (Tex. Crim. App. 1935); Ex parte Foster, 71 S.W. 593
(Tex. Crim. App. 1903)). In the present case, the Respondent Court made no
findings whatsoever pertaining to the gag order at issue.
Although this Court has not ruled on whether mandamus relief should be
granted when a court places prior restraints on free speech of trial participants,
which was the issue in Davenport, this Court has addressed the issue of prior
restraints on free speech in criminal cases. See Ex parte McCormick, 88 S.W.2d
104 (Tex. Crim. App. 1935) (orig. proceeding); Ex parte Foster, 71 S.W. 593 (Tex.
Crim. App. 1903). In both cases, this Court found prior restraints unconstitutional
under Section 8 of the Texas Constitution and declared the trial court orders void.
McCormick, 88 S.W.2d at 107; Foster, 71 S.W. at 596. Furthermore, in many
cases, the Texas Supreme Court and several Texas courts of appeals have granted
mandamus relief in both civil and criminal cases in determining that the injunction
at issue was an unconstitutional prior restraint and declared the gag order void.
See, e.g., Davenport, 834 S.W.2d 4, 8-10 (Tex. 1992); San Antonio Express-News
12
v. Roman, 861 S.W.2d 265, 266 (Tex. App.—San Antonio 1993, no writ); In re
Benton, 238 S.W.3d 587, 592 (Tex. App.—Houston [14th Dist.] 2007, no pet.); In
re Graves, 217 S.W.3d 744, 747-748 (Tex. App.—Waco 2007, no pet.); Grigsby v.
Coker, 904 S.W.2d 619 (Tex. 1995); Low v. King, 867 S.W.2d 141 (Tex. App.—
Beaumont 1993, no writ). Relator is unaware of a Texas case, with facts similar to
this case, where a gag order restricting the speech of trial participants has been held
to be constitutional when contested by a trial participant.
Every court that has addressed this issue on mandamus has determined that a
trial court abuses its discretion if it does not make specific findings supported by
evidence before entering a gag order that (1) an imminent and irreparable harm to
the judicial process will deprive the litigants of a just resolution of their dispute,
and (2) the judicial action represents the least restrictive means to prevent that
harm. See Davenport, 834 S.W.2d at 10.
Mandamus relief may be granted if the relator can demonstrate that: (1) the
act that relator seeks to compel is purely ministerial, and (2) relator has no other
adequate legal remedy. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App.
2003), subsequent mandamus proceeding sub nom. In re Neveu, 14-07-00589-CV,
2007 WL 2198825 (Tex. App.—Houston [14th Dist.] Aug. 2, 2007) (citing State
ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)). This Court
has alternatively stated that, in order to be entitled to a writ of mandamus, the
13
relator must demonstrate that: (1) there is no other adequate legal remedy, and (2)
there is a clear and indisputable right to the relief sought. State v. Patrick, 86
S.W.3d 592, 594 (Tex. Crim. App. 2002) (citing State ex rel. Hill v. Court of
Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001)).
The ministerial-act requirement has been described as a requirement that the
relator has “a clear right to the relief sought,” meaning the relief sought must be
“clear and indisputable” such that its merits are “beyond dispute” with “nothing
left to the exercise of discretion or judgment.” State ex rel. Hill, 34 S.W.3d at 927-
928. A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to constitute a clear and prejudicial error of law. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992).
When a trial court enters a gag order, that court does not have the authority
or discretion to summarily skip the requirement to hear evidence and make specific
findings. The Relator here is not asking this Court to review findings that involved
discretion by the Respondent Court; indeed, such a review would be impossible,
since there was no effort by Respondent Court to make any findings at all. Relator
is instead asking this Court to grant mandamus relief on the basis that no evidence
was heard, no findings were made, and the gag order is not the least restrictive
means to prevent any anticipated harm.
14
Finally, this Court should grant the petition in this case because the public is
harmed by allowing an unconstitutional gag order to continue in effect. In Gentile,
Justice Kennedy articulated that prior restraints on speech of trial participants
affect the public’s ability to have an informed opinion about criminal proceedings.
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035 (1991). The Gentile Court
articulated why the public’s right to information is important in a criminal
proceeding:
The judicial system, and in particular our criminal justice
courts, play a vital part in a democratic state, and the public has a
legitimate interest in their operations. See, e.g., Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 838-839 (1978). “[I]t
would be difficult to single out any aspect of government of higher
concern and importance to the people than the manner in which
criminal trials are conducted.” Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 575 (1980). Public vigilance serves us well,
for “[t]he knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an effective
restraint on possible abuse of judicial power.... Without publicity, all
other checks are insufficient: in comparison of publicity, all other
checks are of small account.” In re Oliver, 333 U.S. 257, 270-271
(1948) . . .
....
In Sheppard v. Maxwell, 384 U.S. 333, 350 (1966), we
reminded that “[t]he press ... guards against the miscarriage of justice
by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.”
. . . see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606
(1976) (Brennan, J., concurring in judgment) (“[C]ommentary on the
fact that there is strong evidence implicating a government official in
criminal activity goes to the very core of matters of public concern”),
or where, as is also the present circumstance, the criticism questions
the judgment of an elected public prosecutor. Our system grants
prosecutors vast discretion at all stages of the criminal process, see
15
Morrison v. Olson, 487 U.S. 654, 727-728 (1988) (SCALIA, J.,
dissenting). The public has an interest in its responsible exercise.
Gentile, 501 U.S. at 1035-36.
The public in Williamson County has a right to accurate information
regarding criminal cases, including the actions of Relator, the public’s elected
District Attorney. If this Court allows the present void gag order to stay in place,
the public will be hampered in having complete and accurate knowledge.1 For
example, if a newspaper, television station, or blog decides to present a story about
this case and reports inaccurate or false information, the current gag order prevents
all parties from issuing any type of press release, press conference, or other
measure to correct the false information. In this case, false allegations of unethical
conduct were made by Defense Counsel against Relator, the elected District
Attorney. The public is harmed when it does not have both sides of the story as it
relates to allegations of wrongdoing against the elected prosecutor and her staff.
This is exactly the type of harm Justice Kennedy was concerned about in Gentile.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
1
Ironically, while the Respondent Court summarily restricted the free speech of the parties, the
court e-mailed a member of the press on June 27, 2015, to correct what the court believed to be
an inaccurate story about actions the court had or had not taken in the underlying case. The
Respondent Court instructed the newspaper to “take the article down.” See Appendix 11.
16
ARGUMENT AND AUTHORITIES
I. No Adequate Remedy at Law
The Respondent Court has issued a gag order preventing all parties,
including Relator, from talking to the press or the public about Cause Number 13-
0826-K277. The State has an obligation to approach the trial court and ask that
court to address the State’s objection to the order before petitioning for a writ of
mandamus. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999). The State has
attempted to fulfill this obligation by submitting two separate motions to the
Respondent Court before petitioning for a writ of mandamus. The first written
motion objected to the May 12, 2015 gag order and asked the Respondent Court to
rescind that order because it is unconstitutional and void. See Appendix 3. The
second motion re-urged the Respondent Court to withdraw the April 9, 2015 gag
order and apply the Davenport analysis to enter a constitutional gag order. See
Appendix 5. At a hearing on May 29, 2015, the State requested the Respondent
Court to rule on its two motions to void the existing gag order. See Appendix 18 at
95. The Respondent Court orally denied the motion.2 Id. at 95-96. That same day,
2
During the hearing where the State objected to the gag order on May 29, 2015, the Respondent
Court demonstrated that he understood that the ruling in Davenport should apply to gag orders
but refused to apply it to the one that was entered. After denying state’s motion to vacate or void
the earlier gag order, the court stated, “If you want to enter a different gag order, then you need
to put on evidence that meets all the criteria that you wanted in the proposed gag order that you
filed in your other motion. But you would have to present evidence that would justify those
findings in order to enter that particular order.” See Appendix 18 at 97. The Respondent Court’s
17
the Respondent Court signed a written order denying the State’s Motion to Void
Gag Order. See Appendix 6.
The State can only pursue relief by way of an extraordinary writ before this
Court. The State has no right to appeal the Respondent Court’s ruling. See Tex.
Crim. Proc. Code Ann. § art. 44.01 (Vernon 2015). The harm suffered from an
order restraining the speech of the Relator could not be repaired on appeal.
Kennedy v. Eden, 837 S.W.2d 98, 99 (Tex. 1992). The State cannot challenge the
Respondent Court’s ruling by way of an application for a writ of habeas corpus,
and the Texas Legislature has set up no administrative remedy whereby the State
can challenge the Respondent Court’s ruling.
II. Clear Entitlement to Relief
A. The gag order is an unconstitutional prior restraint
The protection of a person’s free speech rights is firmly rooted in the United
States and Texas Constitutions, with Texas providing even greater rights of free
expression than its federal analogue. See Davenport v. Garcia, 834 S.W.2d 4, 8-10
(Tex. 1992); see U.S. Const. amend. I. The Texas Constitution provides, “Every
person shall be at liberty to speak, write or publish his opinions on any subject,
being responsible for the abuse of that privilege, and no law shall ever be passed
refusal to apply Davenport to his first gag order but insistence that it apply to future gag orders
demonstrates an even greater need for mandamus relief.
18
curtailing the liberty of speech or of the press.” Tex. Const. art. I, § 8.
An order of a court that forbids communications before they occur
constitutes a prior restraint on speech. Marketshare Telecom, L.L.C. v. Ericsson,
Inc., 198 S.W.3d 908, 917 (Tex. App.—Dallas 2006, no pet.); see also Alexander
v. U.S., 509 U.S. 544, 550 (1993) (A prior restraint on speech is an “administrative
and judicial order forbidding certain communications when issued in advance of
the time that such communications are to occur.”). Prior restraints on speech are
presumptively unconstitutional. Davenport, 834 S.W.2d at 10; San Antonio
Express-News, 861 S.W.2d at 267.
The Texas Supreme Court has described gag orders as injunctions. See
Davenport, 834 S.W.2d at 6. (“The trial court correctly characterized as a ‘gag
order’ its oral injunction…”).3 This is important because the constitutionality of
3
Black’s Law Dictionary defines injunctions in a way that is reflected in the Davenport ruling:
“A court order commanding or preventing an action. To get an injunction, the complainant
must show that there is no plain, adequate, and complete remedy at law and that an irreparable
injury will result unless the relief is granted.
....
‘In a general sense, every order of a court which commands or forbids is an injunction; but in its
accepted legal sense, an injunction is a judicial process or mandate operating in personam by
which, upon certain established principles of equity, a party is required to do or refrain from
doing a particular thing. An injunction has also been defined as a writ framed according to the
circumstances of the case, commanding an act which the court regards as essential to justice, or
restraining an act which it esteems contrary to equity and good conscience; as a remedial writ
which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ issuing by
the order and under the seal of a court of equity." 1 Howard C. Joyce, A Treatise on the Law
Relating to Injunctions § 1, at 2–3 (1909).’” Black's Law Dictionary 855 (9th ed. 2011).
19
injunctions are to be judged even more strictly than the review of legislative action.
Operation Rescue-Nat’l v. Planned Parenthood, 975 S.W.2d 546, 559-560 (Tex.
1998). It appears that most of the case law regarding injunctions was developed
through civil cases, as this is a common remedy in civil law; most criminal cases
do not have the need or place for injunctions.
The Respondent Court’s gag order signed on April 9, 2015, constitutes a
prior restraint on the future speech of all persons in this case, including the
“parties, attorneys, the employees of the attorneys in this case.” See Appendix 2.
This order broadly places prior restraints on more than 40 persons,4 all of whom
are deserving of the protections found in the Texas and United States
Constitutions. More specifically, the order restricts Relator District Attorney Jana
Duty’s free speech rights and causes her actual and affirmative harm. See
discussion infra Part II.E. An unconstitutionally broad order such as the one
signed by the Respondent Court does not give the parties who are subject to the
order adequate notice as to how or why their rights are being restricted.
B. A court abuses its discretion when it places prior restraints on a party
without following the two-pronged Davenport analysis
The Respondent Court did not have the authority or discretion to ignore the
4
Including the defense attorneys, their employees, the defendant, the elected District Attorney,
all of the employees of the District Attorney’s office, and the special prosecutors currently
employed at the District Attorney’s office, there are more than 40 individuals affected by this
order.
20
Davenport test when issuing the gag order. The failure to hear evidence and make
findings supported by that evidence is sufficient grounds alone to grant mandamus
relief.
Davenport involved an oral injunction, later put in writing, in a protective
order which constituted a gag order that was ultimately declared void as
unconstitutional. Davenport, 834 S.W.2d at 6, 10. There, the supreme court held
that a trial court abuses its discretion if it does not make specific findings
supported by evidence before entering a gag order that (1) an imminent and
irreparable harm to the judicial process will deprive the litigants of a just resolution
of their dispute, and (2) the judicial action represents the least restrictive means to
prevent that harm. Id. at 10; see also Ex parte Tucci, 859 S.W.2d 1, 5-6 (Tex.
1993). Davenport fully recognized that a prior restraint can withstand scrutiny
under the court’s two-part test only “under the most extraordinary circumstances.”
Davenport, 834 S.W.2d at 10. The court reasoned that this result is consistent with
the mandate of the Texas Constitution recognizing the broad right to freedom of
expression in Texas. Id. Without taking the steps necessary to make specific
findings and without actually making any specific findings, a gag order is
unconstitutional and void for violating the parties’ rights to free speech. Id. at 11.
The Fourth Court of Appeals has applied the Davenport test with respect to
the constitutionality of gag orders in criminal cases. See San Antonio Express-
21
News, 861 S.W.2d at 268 (mandamus conditionally granted requiring trial court to
rescind unconstitutional order prohibiting relator, newspaper that claimed its state
constitutional rights had been violated, from publishing names of two witnesses).
The Tenth Court of Appeals gave the following reason for applying the Davenport
test in a criminal case,
The Court of Criminal Appeals often relies on the decisions of the
Supreme Court of Texas when addressing matters of state
constitutional law. See, e.g., Luquis v. State, 72 S.W.3d 355, 364-65
(Tex. Crim. App. 2002); Ex parte Mitchell, 977 S.W.2d 575, 580
(Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 131 (Tex.
Crim. App. 1996). The Supreme Court reciprocates. See Davenport,
834 S.W.2d at 14 ("We give thoughtful consideration to that court's
analysis in part to avoid conflicting methods of constitutional
interpretation in our unusual system of bifurcated highest courts of
appeal."); see also Yanes v. Sowards, 996 S.W.2d 849, 852 (Tex.
1999) (per curiam). Therefore, we shall apply Davenport in this case.
Graves, 217 S.W.3d at 749.
Here, the Respondent Court did not have the authority or discretion to
completely skip hearing evidence and making findings supported by that evidence,
as Davenport requires. In fact, the Respondent Court applied no test, heard no
evidence, and made no findings at all. The court merely enacted a blanket
restriction on all communication, no matter how tenuous it might be in relation to
the case. This act unconstitutionally violates Relator’s free speech rights and that
of 40 other individuals.
Not only is the Respondent Court without authority or discretion to take
22
such action, but the court’s action affirmatively creates harm. Without the
protections that are embodied in the procedure laid out in Davenport, the harm that
can be done by a gag order spreads far and wide and subjects many individuals to
violations of a broad injunction without any notice. The findings are necessary to
put the 40 individuals, who were not all in court, on notice as to the specifics of
what they are barred from doing and justifies the bar. Without those findings,
those individuals are left without direction. See discussion infra Part II.E.
The gag order entered by the Respondent Court also fails the federal test
regarding prior restraints, similar to the Benton gag order. In In re Benton, the trial
court issued a gag order prohibiting a juvenile, her trial attorneys, and the
attorneys’ agents and employees from discussing the juvenile’s criminal case. See
Benton, 238 S.W.3d at 598. The Fourteenth Court of Appeals noted that “Texas
courts have consistently applied a higher standard when reviewing prior restraints
of speech.” Id. at 597. The Benton Court compared the more stringent Davenport
test and the federal test applied to prior restraints under the U.S. Constitution and
found that the gag order at issue there failed even the lower federal standards
articulated in U.S. v. Brown and Gentile v. State Bar of Nevada. See Benton, 238
S.W.3d at 597 (citing U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000) and Gentile v.
State Bar of Nevada, 501 U.S. 1030 (1991)). The Benton court concluded that it
did not need to do an analysis under the Davenport test because the gag order did
23
not meet the federal constitutional minimum requiring the order to be “narrowly-
tailored to avert a substantial likelihood of material prejudice.” Benton, 238
S.W.3d at 597.
Under the federal test applied in Benton, preclusion against all
communication as ordered by Respondent Court would certainly not be consistent
with a “narrowly tailored” order. Id. Here, the Respondent Court made no effort
to determine that all communications “regarding this case,” which the gag order
here prohibits, had the substantial likelihood to cause material prejudice to the
case.
The Respondent Court’s gag order is distinguishable from the gag order
examined in U.S. v. Brown that was ultimately upheld under federal law. Brown,
218 F.3d at 432. Unlike the Respondent Court’s “no comment” gag order on an
elected official, the sua sponte Brown gag order left various avenues of expression
accessible to the elected official, who was under indictment at the time. Id. at 418.
The various avenues of expression included assertions of innocence, general
statements about the nature of an allegation or defense, and statements of matters
of public record. Id. at 429-430. Additionally, the district court imposing the
order made special allowances for Brown’s re-election campaign by lifting most of
the order for the duration of the campaign. Id. at 430. The Brown court ultimately
found that the order provided sufficient guidance regarding the nature of the
24
prohibited comments to survive a constitutional challenge. Id.
In contrast, the Respondent Court in this case has failed to apply any test,
failed to conduct any analysis to narrowly tailor its order, failed to hear any
evidence before entering the order prepared by the defense, and failed to make any
findings justifying the gag order. The decision not to make any findings or
conduct any analysis to support a prior restraint on the free speech rights of an
elected official and more than 40 persons is either outside the Respondent Court’s
authority or is a clear abuse of discretion.
1. The gag order contains no specific findings that an imminent and
irreparable harm will deprive litigants of a just resolution of their dispute
Under the first prong of Davenport, the trial court must make “specific
findings supported by evidence” that an imminent and irreparable harm to the
judicial process will deprive litigants of a just resolution of their dispute.
Davenport, 834 S.W.2d at 10. This first prong is based on the state constitutional
preference for post-speech remedies. Id. In Davenport, the Supreme Court
identified several shortcomings with the trial court’s order:
The orders fail to identify any miscommunication that the trial court
may have perceived, does not indicate any specific, imminent harm to
the litigation, and offers no explanation of why such harm could not
be sufficiently cured by remedial action. For instance, had any
miscommunication stemmed from improper statements by Relator, as
implied by the court, the proper response may have been to sanction
her conduct.
25
Id. at 11. Similar to the respondent in Davenport, the Respondent Court here failed
to make any “specific findings” detailing the nature or extent of the pretrial
publicity in the Real Party in Interest’s case or how the pretrial publicity would
adversely impact the right to a fair and impartial jury.
The Respondent Court did not have the authority or discretion to bypass an
examination of the relevant evidence and a determination of whether or not public
statements would cause imminent and irreparable harm to the litigants. Had the
gag order addressed the harm that might occur to the jury trial scheduled two
weeks after the State originally made its request, the Respondent Court would at
least have attempted to comply with the first prong of Davenport. Instead, the gag
order prepared by Defense Counsel and signed by the Respondent Court did not
even attempt to give the illusion that an analysis and finding had been made under
any test designed to protect free speech rights. If the Respondent Court fails to
determine what the harm will be under the first prong of the test, it is logically
impossible to determine the least restrictive means to prevent that harm, because
the harm to the judicial process is undefined. The Respondent Court acted outside
his authority or committed a clear abuse of discretion by issuing a gag order
without making specific findings to support a prior restraint on the parties’ rights to
free expression.
26
2. The gag order is not the least restrictive means to prevent the harm
Similar to the respondent in Davenport, the Respondent Court failed to make
any findings about how and why the gag order is the least restrictive means to
prevent any anticipated harm. Without those findings, the existing gag order is not
narrowly tailored and is comparable to the unconstitutional gag order in
Davenport. The written Davenport gag order summarily stated, in part: “Counsel
is ORDERED to refrain from any public comment, casual or otherwise concerning
the facts of this case or the conduct of counsel in this case other than in a court
hearing.” Davenport, 834 S.W.2d at 6. The Davenport court found, “By stopping
not only the purported miscommunications but any communications, the broadly
worded injunction certainly fails the second part of our test.” Id. at 11. Here, the
Respondent Court’s gag order is a blanket prohibition against communication with
the press or making public comments “regarding this case,” which is essentially
identical to the “any communications” prohibition found in Davenport. Id. There
is no substantive difference between the gag order in Davenport and the gag order
issued by the Respondent Court in the present case. The Respondent Court’s gag
order should be set aside because a blanket prohibition of all communication
necessarily fails the second part of the Davenport test. Id.
The Respondent Court’s gag order is the opposite of “least restrictive” in the
breadth of prior restraint that it places on more than 40 persons. As worded, the
27
gag order would preclude any communication that can be connected to the case in
any way, no matter how tenuous. For example, if opposing counsel made
unfounded allegations in subsequent pleadings in the Real Party in Interest’s cause
number against Relator or any other employee in the District Attorney’s office, the
broad unconstitutional gag order would prevent any public response to said
allegation, no matter how tenuous or far removed such allegations might be from
the facts or law of the underlying case. Thus, the Respondent Court’s gag order
would allow the damage caused by the unfounded but publicized allegations to
stand, causing harm to the elected District Attorney and potentially any other party
who is precluded from publicly responding to the false allegations. In addition, the
existing gag order is so broadly written that it could be construed as applying to
any communication about the contempt proceeding initiated against Relator. Thus,
any attempts by Relator to defend herself publicly or to the press regarding that
proceeding could subject Relator to further contempt proceedings by the
Respondent Court.
It is important to note that while ordering such an expansive gag order, the
Respondent Court failed to include restrictions it had orally mentioned during the
March 31, 2015 hearing, which would have placed specific restrictions on Defense
Counsel’s ability to communicate about their case through the Williamson County
Defense Attorney Association’s list-serve. See Exhibit 15 at 74. The State
28
requested such a restriction due to concerns about communications to the Defense
Association as a “backdoor” around the gag order. Id. at 74-75.
C. The State did not request or agree to the gag order signed by Respondent
Court
There has been no request or agreement by the State in this case regarding
the existing gag order. It is uncontroverted that earlier in the process the State
made a general request that a gag order be entered; however, there was no
agreement regarding the necessary findings to be made, the appropriate language
to be used, or the specific gag order that was to be signed by the Respondent Court.
See Appendix 18 at 71-72. The State was not given a reasonable opportunity to be
heard once the gag order was drafted by Defense Counsel. Asking generally for a
gag order and agreeing to the specific terms of such an order are two different
things, because the specific terms of the order, including necessary findings, are
the heart and substance of the order. See discussion infra Part II.C.
Defense Counsel e-mailed the proposed gag order on April 9, 2015, to the
Respondent Court and First Assistant Mark Brunner, and the court signed the order
that same day. See Appendix 2. There was no hearing held on that day. It would
be an absurd result if “agreement” to the terms of a proposed order could be
established by emailing a party a proposed order and then immediately obtaining a
29
judge’s signature on that order without giving the other side a reasonable
opportunity to review the order.
Furthermore, Relator, Jana Duty, stated under oath that the proposed order
was never sent to her and that she was unaware of its existence. See Appendix 18
at 73. Not only was it not sent to her, but the Respondent Court did not send the
State any notice that the court had signed a written gag order.5 Relator further
testified that she believed that a valid gag order, even if it prohibited her from
discussing the facts of the case, would still allow her to respond to accusations that
she violated ethical rules and intentionally withheld evidence. Id. at 35-36.
Relator’s testimony demonstrates the fundamental lack of any agreement between
the parties with respect to the language of the gag order.
Equally telling, the absence of restrictions prohibiting Defense Counsel from
discussing the case with the local defense bar association’s listserv demonstrates
the lack of any agreement regarding the final written gag order. See Appendix 15
at 74-75. Nor does the existing gag order include the State’s proposed restriction
that the parties not discuss the case on social media. Id. at 74. Given this lack of
5
The Respondent Court has a history of not notifying the State of orders the Court has signed.
In State of Texas v. Wachtendorf, No. 03-14-00633-CR, 2015 WL 894731 (Tex. App.—Austin
Feb. 26, 2015) (pet. granted April 29, 2015, PD-0280-15), recently in the Third Court of Appeals
and currently pending before this Court, the Respondent Court signed an order, dated it on the
same day it was signed, and then waited to file it with the District Clerk until the time for appeal
for the State had passed. Under binding case law at the time of this filing, the State is prevented
from an appeal in this instance.
30
agreement as to numerous details, the present gag order should be treated as an ex
parte order or a sua sponte order and not as an agreed order to which both parties
have signed off on the terms.
This case is procedurally similar to Grigsby v. Coker, where one party
requested a gag order (authorized under the family code), but the court did not
enter a written gag order until seven weeks later. Grigsby, 904 S.W.2d at 621.
There, the Texas Supreme Court discussed the abuse of discretion procedurally:
“The faults in this gag order are likely a function of the procedure, or lack of
procedure, used in adopting it: no formal motion, no prior notice, and no formal
hearing or evidence. There is no indication that exigent circumstances warranted
an abbreviation in procedures authorized by section 11.11, when seven weeks
passed between the date the trial court stated it would issue a gag order and the
date the order was signed.” Id. at 621. In the present case, the Respondent Court
did not follow any procedure in entering the gag order, and, as discussed above,
was without authority or discretion to discard the procedure.
Thus, the State did not invite error because it did not request or agree to the
gag order that was signed by the Respondent Court. The fact that the State earlier
requested a different gag order does not constitute a request for this one. To hold
otherwise would be like holding that a general suggestion by the State of the need
for a definition of a term in a jury charge constitutes a request or agreement for a
31
specific, incorrect definition. That cannot be the law. Accordingly, the State has
not waived its right to challenge this gag order by inviting error.
Accordingly, the only way this Court could conclude that the State requested
or agreed to the specific gag order signed by the Respondent Court would be to
find that when 1st Assistant District Attorney Mark Brunner failed to respond
within a few hours to Defense Counsel’s e-mail, the State had thereby “agreed” to
the Order included in that e-mail. Such a conclusion would not only be unfair, it
would be inconsistent with the fact that the gag order drafted by Defense Counsel
and signed by the Respondent Court did not include the restrictions and terms the
State had requested in the preliminary hearings leading up to the order. And
finally, the failure of one of Relator’s employees to respond immediately to an e-
mail simply cannot waive the constitutional rights of Relator or the 40 individuals
affected by this gag order.
D. The gag order signed by the Respondent Court is void and therefore can
be attacked by the State irrespective of any prior request or agreement
As explained above, there was never an agreement as to the specific terms or
scope of a gag order, and at no time did Relator, Jana Duty, invite error by
requesting or agreeing to the gag order that the Respondent Court signed and
entered. Even if there had been such a request or agreement, however, the State
would not be precluded from challenging the gag order here.
32
A court, like a public official, should not be permitted to take action contrary
to the constitution. In Ex parte Siebold, the Supreme Court articulated this
principle: “[I]f the laws are unconstitutional and void, the Circuit Court acquired
no jurisdiction of the causes. Its authority to indict and try the petitioners arose
solely upon these laws.” Ex parte Siebold, 100 U.S. 371, 377 (1879). This Court
has applied a similar principle to prior-restraint injunctions, holding: “[W]e
accordingly hold that the court had no power to prohibit the publication of the
testimony of the witnesses in the case, and that his act in punishing the relator for
contempt for violating that order was without jurisdiction, and was consequently
void.” Ex parte Foster, 71 S.W. at 596 (emphasis added). If a court does not have
the power to unconstitutionally enjoin someone, and is thus without jurisdiction to
enforce a gag order, then it must be that the court is without discretion to take
either action.
The Respondent Court had no authority to enter the gag order under the facts
in this case. Not only are unconstitutional injunctions void, they are subject to
even stricter scrutiny than when a court is examining the constitutionality of
statutes. The Texas Supreme Court, in examining whether an injunction violated
free speech rights, summarized, “We are therefore persuaded, as the Supreme
Court has been, that injunctive restrictions must be judged more strictly than
legislative restrictions.” Operation Rescue-Nat’l, 975 S.W.2d at 559. This result
33
is only logical in that an injunction functions as a law would on the persons who
are enjoined. Any action an enjoined person takes in contravention of that
injunction would subject that person to consequences similar to the way that any
action taken in contravention of a statute would subject a person to consequences.
However, unlike a law that has gone through a democratic process to be put in
effect, an injunction is put in effect by one person. Therefore, when a single
government actor puts an injunction in place, and that injunction infringes or
violates the enjoined person’s constitutional rights, a court reviewing that
injunction should judge it more strictly than a legal restriction that was
democratically enacted. Id. at 559. Since Respondent Court had no power to enter
an unconstitutional order, that court should be prohibited from persisting in the
enforcement of an unconstitutional order.
The gag order is therefore void. Thus, even if there had been a specific
request or agreement by the State (which there was not), the gag order entered by
Respondent Court is still void, with no force or effect. If a gag order is
unconstitutional and void, then any agreement to enter that order is likewise void.
See In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, no pet.)
(“A void order has no force or effect and confers no rights; it is a mere nullity . . . .
Thus, a party who agrees to a void order has agreed to nothing.”).
34
Because a gag order is a type of injunction, In re Garza is persuasive. See
Conlin v. Haun, 419 S.W.3d 682, 687 (Tex. App.—Houston [1st Dist.] 2013, no
pet.) ("Our sister court, the Fourteenth Court of Appeals, has followed In re
Garza …. We likewise find In re Garza persuasive and follow it and In re
Corcoran here. Accordingly, the Conlins are not estopped from complaining about
the ‘Agreed Temporary Injunction’ order's failure to comply with the mandatory
requirements of Rule 683.”). In re Garza held that a trial court abuses its
discretion in holding a litigant in contempt for violating a void injunction even
though the litigant had agreed to the specific terms of the injunction entered.
Garza, 126 S.W.3d at 273. That case involved a family business dispute between
Trevino and his cousin Garza. Id. at 269. The trial court entered a temporary
injunction preventing Garza from depleting his assets during litigation. Id. The
trial court ultimately signed a “Judgment of Contempt” after an evidentiary hearing
in which evidence showed Garza borrowed $112,000 against a homestead
protected by the injunction to pay for her legal fees. Id. at 270. The judgment
ordered Garza to effectuate a release of lien and pay Trevino’s attorney’s fees and
costs of the proceedings. Id.
When Garza challenged the validity of the injunction, Trevino argued that
Garza was barred from complaining that the injunction was erroneous because he
had agreed to its precise terms. Id. at 270-271. Trevino argued the general rule
35
that a party may not appeal from or attack a judgment to which he has agreed,
absent proof of fraud, collusion, or misrepresentation. Garza, 126 S.W.3d at 270-
271 (citing Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 720 (Tex.
App.—Corpus Christi 1999, pet. dism’d w.o.j.)). The Garza court determined that
Henke was distinguishable in that the underlying order in Henke was not void,
whereas the Garza injunction was found to be void. Id. at 271.
Stating that “a party who agrees to a void order has agreed to nothing,” the
Garza court held that Garza had not waived her right to attack the void order. Id.
In the present case, the Respondent Court’s void gag order should be treated the
same as the void injunction order in Garza. See Davenport, 834 S.W.2d at 11
(judicially imposed gag orders that are found to be unconstitutional are void). On
this additional basis, Relator has not waived her right to attack the gag order here.
E. Relator and the public are harmed by the unconstitutional gag order
Relator’s constitutional rights are harmed daily, as the gag order silences the
elected District Attorney from responding to allegations against her, regardless of
how false or tenuous they may be. Relator is not just an attorney in private
practice who is mostly outside the realm of public scrutiny. Relator is a
democratically elected official and holds a position in which all of her actions are
judged by the public and have an impact on community safety in Williamson
County. The Respondent Court has not just placed a prior restraint on an
36
individual; he has placed a prior restraint on the free speech rights of an elected
official, within a year of the coming primary election for the position of
Williamson County District Attorney.
Beyond the harm of not being able to defend herself against false
accusations, Relator suffers affirmative harm to her reputation from the void gag
order when the gag order is improperly used to attack her through the vehicle of
contempt. Furthermore, Relator is caught in a “catch-22” in that if she attempts to
respond to allegations against her regarding the void gag order, or responding to
any other allegation of wrongdoing whatsoever, she subjects herself to the
Respondent Court pursuing additional contempt proceedings for violating the void
order.
The Respondent Court made clear his intent to hold Relator in contempt for
violating the gag order on May 8, 2015. See Appendix 17 at 10-11. The
Respondent Court now insists on having another hearing on July 23, 2015, in an
attempt to repeat what occurred on May 8, 2015. See Appendix 10. The mere
allegation of contempt causes damage to an attorney’s reputation. Allegations of
wrongdoing and misconduct against elected officials also cause damage, regardless
of the false nature of the allegations. The fact that the very gag order being used to
find Relator in contempt prevents Relator from responding to false allegations or
correcting misunderstandings in the press further compounds this injury. There is
37
no benefit to allowing the Respondent Court to continue to hold a void gag order
over Respondent’s head by attempting to hold her in contempt for alleged
violations of that order.
Finally, as Relator addressed at the beginning of this petition, the citizens of
Williamson County are harmed when they do not have both sides of the story as it
relates to allegations of wrongdoing against their elected District Attorney and her
staff. Our democracy is contingent upon an informed electorate, and when one of
our elected officials is summarily silenced by an unconstitutional gag order,
democracy suffers. Gentile, 501 U.S. at 1035-36.
PRAYER
The blanket gag order entered by the Respondent Court is unconstitutional
on its face, overly broad, and does not comply with the requirements, recognized in
Davenport, for specific findings and supporting evidence. The existence of such
findings and evidence are essential for the protection of the parties’ free speech
rights under the Federal and Texas Constitutions. For these reasons, Relator asks
this Court to declare the Respondent Court’s April 9, 2015 gag order
unconstitutional and void and order it withdrawn.
38
Respectfully submitted,
/s/ J. Woodfin Jones
J. Woodfin Jones
State Bar No. 10911700
ALEXANDER DUBOSE
JEFFERSON & TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
wjones@adjtlaw.com
/s/ Brent Webster_________________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
/s/ Eric Gutierrez__________
Eric Gutierrez
State Bar No. 24089267
Special Prosecutor
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
39
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
9, 313 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Brent Webster___________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
40
CERTIFICATE PURSUANT TO TEX. R. APP. P. 52.3(j)
I have reviewed the foregoing petition and state that the factual statements
therein are supported by competent evidence included in the appendix and/or filed
with the petition.
/s/ Brent Webster__________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
41
CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2015, I electronically filed the foregoing
document with the clerk of the court for the Court of Criminal Appeals, using the
efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was
sent to the Respondent Court, Hon. Rick J. Kennon, 368th District Court, 405
M.L.K. Street, Georgetown, Texas 78626 at rkennon@wilco.org and to the Real
Party in Interest’s attorneys of record, Kristen Jernigan, 207 S. Austin Ave.,
Georgetown, Texas 78626 at kristen@txcrimapp.com, Ryan Deck, 107 N.
Lampasas, Round Rock, Texas 78664 at ryandecklaw@gmail.com, and R. Scott
Magee, 107 N. Lampasas, Round Rock, Texas 78664 at scott@mageefirm.net.
/s/ Brent Webster___________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
42
No. - -___
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
IN RE JANA DUTY,
RELATOR
IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY
FOR THE STATE OF TEXAS, WILLIAMSON COUNTY
APPENDIX AND MANDAMUS RECORD
TRIAL COURT CAUSE NUMBER 13-0826-K277
IN THE 368TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
HON. RICK J. KENNON
J. Woodfin Jones Brent Webster
State Bar No. 10911700 State Bar No. 24053545
ALEXANDER DUBOSE Assistant District Attorney
JEFFERSON & TOWNSEND LLP 405 MLK Street, #1
515 Congress Avenue, Suite 2350 Georgetown, Texas 78626
Austin, Texas 78701 Telephone: (512) 943-1234
Telephone: (512) 482-9300 Facsimile: (512) 943-1255
Facsimile: (512) 482-9303 bwebster@wilco.org
wjones@adjtlaw.com
APPENDIX AND MANDAMUS RECORD
Applicant’s Pre-Trial Motion for Writ of Habeas Corpus and Request for
Hearing...............................................................................................................Tab 1
Gag Order...........................................................................................................Tab 2
State’s Motion to Rescind Unconstitutional Gag Order.....................................Tab 3
Response/Clarification to State’s Motion to Rescind Gag Order.......................Tab 4
State’s Motion to Enter a Constitutional Gag Order..........................................Tab 5
Order Denying State’s Motion to Void Gag Order............................................Tab 6
Notice of Hearing to Show Cause......................................................................Tab 7
Motion to Hold Jana Duty in Contempt.............................................................Tab 8
Affidavit of Judge Rick J. Kennon........................................................Tab 8.1
Jana Duty E-mail, “On-line AAS Story,” May 6, 2015........................Tab 8.2
Austin American Statesman Article, dated May 6, 2015......................Tab 8.3
E-mail Thread, “Re: Harmel,” May 7-8, 2015......................................Tab 8.4
Order to Show Cause..........................................................................................Tab 9
Amended Order to Show Cause.......................................................................Tab 10
Kennon E-mail to Parties, June 27, 2015.........................................................Tab 11
1st Memorandum Opinion, In re Jana Duty, 3rd Court of Appeals...................Tab 12
2nd Memorandum Opinion, In re Jana Duty, 3rd Court of Appeals..................Tab 13
Reporter’s Records
Reporter’s Record, Status Hearing, March 20, 2015.......................................Tab 14
Reporter’s Record, Motion to Disqualify, March 31, 2015............................Tab 15
Reporter’s Record, Motion to Disqualify DA, April 8, 2015..........................Tab 16
Reporter’s Record, Contempt of Court, May 8, 2015......................................Tab 17
Reporter’s Record, Writ Hearing, May 29, 2015.............................................Tab 18
State Statutes
Tex. Crim. Proc. Code art. 4.04………............................................................Tab 19
Tex. Crim. Proc. Code art. 44.01......................................................................Tab 20
Tex. R. App. P. Rule 72...................................................................................Tab 21
Constitutions
Tex. Const. art. I, § 8........................................................................................Tab 22
Tex. Const. art. V, § 5......................................................................................Tab 23
U.S. Const. amend. I.........................................................................................Tab 24
15
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00320-CV
In re Jana Duty
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R AN D U M O P I N I O N
PER CURIAM
The petition for writ of mandamus is denied and the emergency motion for temporary
relief is dismissed as moot. See Tex. R. App. P. 52.8(a).
Before Chief Justice Rose, Justices Goodwin and Field
Filed: May 28, 2015
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00360-CV
In re Jana Duty
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R AN D U M O P I N I O N
PER CURIAM
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
Before Chief Justice Rose, Justices Goodwin and Field
Filed: June 17, 2015
State v. Harmel 13-0826-K277 3/20/2015
Page 1
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 13-0826-K277
STATE OF TEXAS ) IN THE DISTRICT COURT
)
vs. ) WILLIAMSON COUNTY, TEXAS
)
CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT
_____________________________________________
STATUS HEARING
_____________________________________________
On the 20th day of March, 2015, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Rick J. Kennon,
Judge Presiding, held in Georgetown, Williamson County,
Texas.
Proceedings reported by computerized stenotype
machine.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 2
1 APPEARANCES
2
Ms. Jana Duty
3 SBOT NO. 24000244
-and-
4 Mr. Mark Brunner
SBOT NO. 24006917
5 -and-
Mr. Brent Edward Webster
6 SBOT NO. 24053545
Williamson County District Attorney
7 405 Martin Luther King
Suite 1
8 Georgetown, Texas 78626
Telephone: (512) 943-1234
9 COUNSEL FOR THE STATE
10
11 Ms. Kristen Jernigan
SBOT NO. 90001898
12 Law Office of Kristen Jernigan
2007 South Austin Avenue
13 Georgetown, Texas 78626
Telephone: (512) 904-0123
14 E-mail: Kristen@txcrimapp.com
COUNSEL FOR THE DEFENSE
15
16 Mr. Ryan Herbert Deck
SBOT NO. 24040781
17 The Office of Ryan Deck
107 N. Lampasas Street
18 Round Rock, Texas 78664
Telephone: (512) 251-8920
19 E-mail: Ryandecklaw@gmail.com
COUNSEL FOR THE DEFENSE
20
21 Mr. Randall Scott "Scott" Magee
SBOT NO. 24010204
22 R. Scott Magee, Attorney At Law
107 N. Lampasas Street
23 Round Rock, Texas 78664
Telephone: (512) 983-1675
24 E-mail: Scott@mageefirm.net
COUNSEL FOR THE DEFENSE
25
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 3
1 VOLUME 1
2 Status Hearing
3 March 20, 2015
4 PAGE VOL.
5 Reporter's Certificate ...........................32 1
6
7
8
9
10
11
12
13
14
15
16
17
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19
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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State v. Harmel 13-0826-K277 3/20/2015
Page 24
1 MR. BRUNNER: I just figured it's the same
2 issue on both sides, Your Honor.
3 THE COURT: I agree.
4 MR. BRUNNER: Last, Your Honor, and I'm
5 sure everyone is happy to hear me say that, as they
6 always are when I'm in court standing up, is the issue
7 of -- of the gag order. I think this is -- you know, we
8 had a motion filed by the State this week, and then, you
9 know, here it is 15 days before trial, they file a
10 motion, and then the first impulse is -- filing a
11 motion, wonderful. They are entitled to a defense.
12 Mr. Harmel is entitled to a defense -- a vigorous
13 defense. They're not required to lay over and let us
14 steamroll them; however, the first impulse being, right
15 after it's filed, let's call a press -- issue a press
16 release.
17 That is fraught with peril because it puts
18 us in this position of we either don't respond and let
19 it sit there or respond. If I over-respond or someone
20 else over-responds, then, you know, they may be
21 facing -- just talking hypothetically here, not talking
22 about this crew -- hypothetically, someone says the
23 wrong thing to the press, if they're the Defense, the
24 worst that can happen to them is maybe an ethical
25 violation and maybe a chewing out by the Judge.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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State v. Harmel 13-0826-K277 3/20/2015
Page 25
1 The worst thing that can happen to the
2 State, if we start over-talking to the press, is a
3 mistrial with prejudice, prosecutorial misconduct.
4 That's basically a gun to our heads.
5 And so when talking to the press, the
6 press has a job to do, and they do headlines like they
7 had this week in court, quote, "Prosecutor lied about
8 evidence" 12 days before trial, you know --
9 THE COURT: That was a headline in the
10 paper?
11 MR. BRUNNER: Yes, Your Honor.
12 THE COURT: American Statesman?
13 MR. BRUNNER: Yes, Your Honor.
14 MS. DUTY: Yes.
15 THE COURT: I saw you guys on TV I guess
16 two days ago -- or two nights ago, which tells me that
17 the press was notified pretty quickly, since they were
18 here, I think, within an hour of the time it was filed.
19 MR. BRUNNER: Your Honor, that's how I
20 heard about this, not from Defense counsel. Maybe they
21 sent me an e-mail and I wasn't watching, but I heard it
22 from the press first.
23 THE COURT: Okay.
24 MR. BRUNNER: And, Your Honor, it's just
25 we don't want to turn this into -- we can't control the
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 26
1 press. You can't control the press, we can't, Defense
2 can't. You can control our actions, but I don't want
3 this to turn into a dual of who can say what, snakily,
4 to the press.
5 We can have a situation where, you know,
6 someone walks up to, let's say, hypothetically,
7 Mr. Deck, or another member of the Defense team: Ryan,
8 do you like Slurpees? Do you prefer Slurpees, or do you
9 like -- do you like Icees? Slurpees or Icees?
10 Mr. Deck may say, You know what? I prefer
11 Icees.
12 To have someone overhear that --
13 MR. MAGEE: Your Honor, I'm going to
14 object to this. We're having a hearing.
15 MR. BRUNNER: This is -- no. No.
16 THE COURT: Go ahead. Go ahead.
17 MR. BRUNNER: And they said, I heard
18 Mr. Deck said he likes ISIS.
19 And so the headline is -- they file an
20 affidavit and the headline is, quote, "? Defense
21 attorney supports Jihad terrorists?"
22 How is he going to respond to that? He's
23 going to pick up the phone and tell the media, That's
24 bunk.
25 Okay? Just as, you know, if -- my first
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 27
1 impulse when the headline is "Prosecutor lies about
2 evidence" is to pick up the phone and say, That's wrong.
3 And if one of us says the wrong thing, we
4 are jeopardizing the flow of the trial.
5 So what I'm asking for, Your Honor, is if
6 we can just stop this --
7 THE COURT: How restrictive of a gag order
8 do you want?
9 MR. MAGEE: Well, Your Honor, that's it;
10 is there a legal standard we're addressing here?
11 Because I've never heard -- I haven't heard anything.
12 What are we talking about? I mean, that's all very
13 entertaining.
14 MR. BRUNNER: I'm talking about a gag
15 order.
16 MR. MAGEE: That's all very entertaining
17 and comical, and I get that. But we sent out a press
18 release, and we take our queues from -- you know, the
19 State sends out press releases all the time. I don't
20 hear them complaining about press releases then.
21 So, you know, with us, we're just making
22 sure what we give out is very careful. That's why we
23 did a press release, because we wanted to be careful.
24 That's all very entertaining, but what legal standard
25 are we addressing here?
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 28
1 MR. BRUNNER: Your Honor, you have control
2 over the flow of information from this court, and you
3 have the authority to order the parties to not discuss
4 this case with the media, to not make any postings with
5 the media. I'm not looking for sanctions or ribbing
6 them, Your Honor, for doing what they did.
7 THE COURT: Okay. Let me do this. Looks
8 like we have another issue to take up on the 31st. But
9 what I can do between now and then is, let's not have
10 any discussions with the media until the 31st. And if
11 you want to present a whole big, giant issue about what
12 type of a gag order, how restrictive it needs to be, I'm
13 fine with dealing with that.
14 I can understand -- I have some problems
15 with that headline. That being said, I don't know where
16 the person got the headline. And, I agree, I know how
17 the media is, they're going to do whatever they can do
18 to sell newspapers or get on the news.
19 So I have some concerns with that
20 particular headline, if that's all it said. I mean, if
21 it said, "Defense claims based on the motion" -- I can
22 understand if they quoted something that was in the
23 motion that was filed. That's a little different than
24 "State withholds evidence."
25 And I think it's very important, and I
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 29
1 think we addressed this a little bit at the last
2 trial -- on the mistrial, is because of the history of
3 Williamson County, people are looking at this county I
4 guess much more severely than they might some other
5 counties just because of the things that have gone on
6 over the last several years. And so we do need to be
7 careful with that, and I don't think it's appropriate
8 that derogatory comments are made about other attorneys
9 involved in cases, including this one, but any case, to
10 tell you the truth. And so we need to make sure that
11 that's -- that everybody stays within those ethical
12 guidelines.
13 But at this point in time, let's not have
14 any conversations or discussions with the media, and on
15 the 31st of March, we will deal with that issue and see
16 if we need to have some kind of permanent order dealing
17 with that restriction. Anything else today?
18 MR. MAGEE: Not from the Defense,
19 Your Honor.
20 MR. BRUNNER: (Shakes head.)
21 THE COURT: Okay. Now, next question is,
22 based on all these new things that we have to deal with,
23 are we going to be able to do this in a day, or do we
24 need to go into the next day? And it doesn't matter if
25 we do.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/20/2015
Page 30
1 MS. JERNIGAN: I still think we can
2 probably get it done in a day.
3 THE COURT: Okay. And my concern is, if
4 we don't, we will be into April Fools' Day.
5 Mr. Brunner, I know that's an issue.
6 MR. BRUNNER: Just another day for me,
7 Your Honor. It's not a Holy Day of Obligation or
8 anything, even in my household. Your Honor, it's -- no.
9 I'm very confident we can get this all resolved in one
10 day.
11 THE COURT: Okay. Good deal.
12 MR. BRUNNER: And I literally didn't see
13 in the red file -- in the -- sorry, not in the red file,
14 but in the clerk's summary on the computer that
15 Ms. Jernigan was appointed. Trust me, I looked for it.
16 It wasn't there, or at least I didn't see it. So I
17 wasn't trying to mischaracterize that she wasn't
18 appointed by the Court.
19 THE COURT: No. I'm fine with that. I
20 remembered that she was.
21 MR. MAGEE: It was an Ake motion, which is
22 permitted by law. And so now, here we are. It's under
23 Ake Motions of Oklahoma.
24 MR. BRUNNER: Okay. I just thought she
25 was volunteering out of the charity of her heart.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 31
1 THE COURT: She's like that.
2 MR. BRUNNER: Yeah. That's fine. Good to
3 know. Okay.
4 THE COURT: Okay. Thank y'all.
5 MR. BRUNNER: Thank you, Your Honor.
6 THE COURT: Anything comes up between now
7 and then, let me know.
8 MR. MAGEE: Thank you, Your Honor.
9 (2:31 p.m.)
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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State v. Harmel 13-0826-K277 3/20/2015
Page 32
1 STATE OF TEXAS
2 COUNTY OF WILLIAMSON
3 I, SIMONE M. WRIGHT, Official Court Reporter in and
4 for the 368th District Court of Williamson County, State
5 of Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $121.60 and was
17 paid/will be paid by Williamson County.
18 WITNESS MY OFFICIAL HAND on this, the 26th day of
19 May, 2015.
20 /s/Simone M. Wright___
21 SIMONE M. WRIGHT, CSR
Texas CSR 3266
22 Official Court Reporter
368th District Court
23 Williamson County, Texas
405 Martin Luther King, Box 8
24 Georgetown, Texas 78626
Telephone: (512) 943-1280
25 Job No. 161 Expiration: 12/31/2016
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
654e9fa7-9753-473c-81ee-4b4a97b06fdd
State v. Harmel 13-0826-K277 3/31/2015
Page 1
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 13-0826-K277
STATE OF TEXAS ) IN THE DISTRICT COURT
)
vs. ) WILLIAMSON COUNTY, TEXAS
)
CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT
_____________________________________________
PRETRIAL HEARING
Motion to Disqualify Defense Counsel
Motion to Disqualify DA's Office
Motion to Preserve Evidence
_____________________________________________
On the 31st day of March, 2015, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Rick J. Kennon,
Judge Presiding, held in Georgetown, Williamson County,
Texas.
Proceedings reported by computerized stenotype
machine.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
1801ae93-ae67-4241-b14b-9a101fe9167b
State v. Harmel 13-0826-K277 3/31/2015
Page 2
1 APPEARANCES
2 Ms. Jana Duty
SBOT NO. 24000244
3 -and-
Mr. Mark Brunner
4 SBOT NO. 24006917
Williamson County District Attorney
5 405 Martin Luther King
Suite 1
6 Georgetown, Texas 78626
Telephone: (512) 943-1234
7 Counsel for the State
8
9
10 Ms. Kristen Jernigan
SBOT NO. 90001898
11 Law Office of Kristen Jernigan
2007 South Austin Avenue
12 Georgetown, Texas 78626
Telephone: (512) 904-0123
13 E-mail: Kristen@txcrimapp.com
COUNSEL FOR THE DEFENSE
14
15 Mr. Ryan Herbert Deck
SBOT NO. 24040781
16 The Office of Ryan Deck
107 N. Lampasas Street
17 Round Rock, Texas 78664
Telephone: (512) 251-8920
18 E-mail: Ryandecklaw@gmail.com
COUNSEL FOR THE DEFENSE
19
20 Mr. Randall Scott "Scott" Magee
SBOT NO. 24010204
21 R. Scott Magee, Attorney At Law
107 N. Lampasas Street
22 Round Rock, Texas 78664
Telephone: (512) 983-1675
23 E-mail: Scott@mageefirm.net
COUNSEL FOR THE DEFENSE
24
25
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
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State v. Harmel 13-0826-K277 3/31/2015
Page 3
1 VOLUME 1
2 Pretrial Hearing
3 March 31, 2015
4 PAGE VOL.
5
Announcements .....................................4 1
6
Ruling on Motion to Disqualify Defense Counsel 11 1
7
Ruling (RESERVED) on Motion to Disqualify DA .....67 1
8
Ruling on Motion to Preserve Evidence ............73 1
9
Gag Order Issued .................................74 1
10
Adjournment .....................................76 1
11
Reporter's Certificate ...........................77 1
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 74
1 bring it up on the 7th.
2 THE COURT: That's fine. Okay. If it
3 doesn't -- isn't a problem, then turn it over by
4 tomorrow.
5 MR. BRUNNER: Right, Your Honor. If
6 there's any problems, we'll come to you, all of us.
7 THE COURT: The next issue is the gag
8 order. Is anyone opposed to a gag order?
9 MS. JERNIGAN: We're not, Judge.
10 MS. DUTY: No.
11 MR. BRUNNER: Not at all.
12 THE COURT: Oh, good. That makes it easy.
13 Okay. So --
14 MR. BRUNNER: We'll do one thing easy for
15 you, Your Honor.
16 THE COURT: That's true. At one point --
17 so what we're doing from this point forward, then,
18 no one should talk to the media about this case for any
19 reason. That also means don't post anything on Facebook
20 or any of those other social media outlets.
21 MR. DECK: Judge, the one thing I would
22 say is sometimes we do post updates to our own Listserv,
23 the defense attorney Listserv, just do updates amongst
24 lawyers. We've done that. I assume that's not a
25 problem?
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 75
1 MR. BRUNNER: Your Honor, that's --
2 THE COURT: And I'm assuming that's
3 accessible to the public in general?
4 MS. JERNIGAN: No.
5 MR. DECK: Just like what happened today,
6 what's in public, what everyone saw today, not every
7 lawyer was here, they ask for updates, and we say, Hey,
8 this is what happened.
9 MR. BRUNNER: Your Honor, that's --
10 THE COURT: I'd rather not.
11 MR. BRUNNER: That's a backdoor way of
12 just getting information out. I'm not saying that
13 that's bad intent from State -- I mean, from Defense --
14 old habits die hard; excuse me, gentlemen -- but just
15 it's spreading word that can just be dropped right out
16 to the world.
17 MR. MAGEE: Well, and, likewise, I don't
18 think you should be able to send your employees to go
19 talk to the media, either, you know.
20 THE COURT: Well, I agree. When I say
21 this, this applies to your employees, anyone else you
22 have hired, it applies to the DA's Office and anybody
23 that's hired or with the DA's Office. And that solves
24 the problem; nobody is talking to the media, then we
25 don't have to worry about it. Okay?
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 76
1 Someone draft me an order.
2 MR. BRUNNER: Sounds good, Judge.
3 THE COURT: Ms. Jernigan, you draft that
4 order.
5 MS. JERNIGAN: I'll take care of that,
6 Your Honor.
7 THE COURT: Okay. And so at this point in
8 time, then, we'll come back on the 7th, I'll review all
9 the cases that have been presented and any briefs by
10 April 6th -- is that right? Yeah -- April 6th, and then
11 we'll be back here on the 7th at 9:00 to decide what
12 else is going to happen.
13 Okay. Thank y'all.
14 (Proceedings adjourned, 11:01 a.m.)
15
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 77
1 STATE OF TEXAS
2 COUNTY OF WILLIAMSON
3 I, SIMONE M. WRIGHT, Official Court Reporter in and
4 for the 368th District Court of Williamson County, State
5 of Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $324.00 and was
17 paid/will be paid by The State.
18 WITNESS MY OFFICIAL HAND on this, the 4th day of
19 April, 2015.
20 /s/Simone M. Wright
21 SIMONE M. WRIGHT, CSR
Texas CSR 3266
22 Official Court Reporter
368th District Court
23 Williamson County, Texas
405 Martin Luther King, Box 8
24 Georgetown, Texas 78626
Telephone: (512) 943-1280
25 Job No. 149 Expiration: 12/31/2016
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
1801ae93-ae67-4241-b14b-9a101fe9167b
State v. Harmel 13-0827-K277 4/8/2015
Page 1
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 13-0826-K277
STATE OF TEXAS ) IN THE DISTRICT COURT
)
vs. ) WILLIAMSON COUNTY, TEXAS
)
CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT
_____________________________________________
PRETRIAL HEARING
Motion to Disqualify District Attorney
_____________________________________________
On the 8th day of April, 2015, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Rick J. Kennon,
Judge Presiding, held in Georgetown, Williamson County,
Texas.
Proceedings reported by computerized stenotype
machine.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
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State v. Harmel 13-0827-K277 4/8/2015
Page 2
1 APPEARANCES
2
Ms. Jana Duty
3 SBOT NO. 24000244
-and-
4 Mr. Mark Brunner
SBOT NO. 24006917
5 -and-
Mr. Brent Edward Webster
6 SBOT NO. 24053545
Williamson County District Attorney
7 405 Martin Luther King
Suite 1
8 Georgetown, Texas 78626
Telephone: (512) 943-1234
9 COUNSEL FOR THE STATE
10
Ms. Kristen Jernigan
11 SBOT NO. 90001898
Law Office of Kristen Jernigan
12 2007 South Austin Avenue
Georgetown, Texas 78626
13 Telephone: (512) 904-0123
E-mail: Kristen@txcrimapp.com
14 COUNSEL FOR THE DEFENSE
15
Mr. Ryan Herbert Deck
16 SBOT NO. 24040781
The Office of Ryan Deck
17 107 N. Lampasas Street
Round Rock, Texas 78664
18 Telephone: (512) 251-8920
E-mail: Ryandecklaw@gmail.com
19 COUNSEL FOR THE DEFENSE
20
Mr. Randall Scott "Scott" Magee
21 SBOT NO. 24010204
R. Scott Magee, Attorney At Law
22 107 N. Lampasas Street
Round Rock, Texas 78664
23 Telephone: (512) 983-1675
E-mail: Scott@mageefirm.net
24 COUNSEL FOR THE DEFENSE
25
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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State v. Harmel 13-0827-K277 4/8/2015
Page 3
1 VOLUME 1
2 Pretrial Hearing
3 April 8, 2015
4 PAGE VOL.
5 Announcements .....................................4 1
6 Argument by Ms. Jernigan ..........................5 1
7 Argument by Mr. Brunner ..........................14 1
8 Argument by Mr. Webster ..........................28 1
9 Argument by Ms. Duty .............................54 1
10 Court's Ruling ...................................76 1
11 Instruction to John Prezas .......................89 1
12 Instruction that gag order remain in place .......89 1
13 Adjournment .....................................89 1
14 Reporter's Certificate ...........................90 1
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 89
1 From this point forward, I guess until the
2 13th, Mr. Prezas, you're still off this case.
3 MR. BRUNNER: Your Honor, the gag order is
4 still in effect?
5 THE COURT: Yes.
6 MR. BRUNNER: Thank you, Your Honor.
7 THE COURT: I never got an order.
8 MR. BRUNNER: You said it.
9 THE COURT: I know, but I don't have a
10 written order.
11 Thank y'all.
12 (Proceedings adjourned, 3:46 p.m.)
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 90
1 STATE OF TEXAS
2 COUNTY OF WILLIAMSON
3 I, SIMONE M. WRIGHT, Official Court Reporter in and
4 for the 368th District Court of Williamson County, State
5 of Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $342.00 and was
17 paid/will be paid by Williamson County.
18 WITNESS MY OFFICIAL HAND on this, the 10th day of
19 April, 2015.
20 /s/Simone M. Wright
21 SIMONE M. WRIGHT, CSR
Texas CSR 3266
22 Official Court Reporter
368th District Court
23 Williamson County, Texas
405 Martin Luther King, Box 8
24 Georgetown, Texas 78626
Telephone: (512) 943-1280
25 Job No. 150 Expiration: 12/31/2016
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
340dd04f-b37a-42f8-9b5f-53e02b9b2f76
State v. Harmel 13-0826-K277 5/8/2015
Page 1
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 13-0826-K277
STATE OF TEXAS ) IN THE DISTRICT COURT
)
vs. ) WILLIAMSON COUNTY, TEXAS
)
CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT
_____________________________________________
CONTEMPT OF COURT
_____________________________________________
On the 8th day of May, 2015, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Rick J. Kennon,
Judge Presiding, held in Georgetown, Williamson County,
Texas.
Proceedings reported by computerized stenotype
machine.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
dc2526fa-e518-4c6c-9a88-334dfdcc01e1
State v. Harmel 13-0826-K277 5/8/2015
Page 2
1 APPEARANCES
2
Ms. Jana Duty (NOT PRESENT)
3 SBOT NO. 24000244
-and-
4 Mr. Mark Brunner
SBOT NO. 24006917
5 -and-
Mr. Brent Edward Webster
6 SBOT NO. 24053545
Williamson County District Attorney
7 405 Martin Luther King
Suite 1
8 Georgetown, Texas 78626
Telephone: (512) 943-1234
9 COUNSEL FOR THE STATE
10
11 Ms. Kristen Jernigan
SBOT NO. 90001898
12 Law Office of Kristen Jernigan
2007 South Austin Avenue
13 Georgetown, Texas 78626
Telephone: (512) 904-0123
14 E-mail: Kristen@txcrimapp.com
COUNSEL FOR THE DEFENSE
15
16 Mr. Ryan Herbert Deck
SBOT NO. 24040781
17 The Office of Ryan Deck
107 N. Lampasas Street
18 Round Rock, Texas 78664
Telephone: (512) 251-8920
19 E-mail: Ryandecklaw@gmail.com
COUNSEL FOR THE DEFENSE
20
21 Mr. Randall Scott "Scott" Magee
SBOT NO. 24010204
22 R. Scott Magee, Attorney At Law
107 N. Lampasas Street
23 Round Rock, Texas 78664
Telephone: (512) 983-1675
24 E-mail: Scott@mageefirm.net
COUNSEL FOR THE DEFENSE
25
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
dc2526fa-e518-4c6c-9a88-334dfdcc01e1
State v. Harmel 13-0826-K277 5/8/2015
Page 3
1 VOLUME 1
2 Contempt of Court
3 May 8, 2015
4 PAGE VOL.
5 Judge finds Ms. Duty in contempt of court ........11 1
6 Adjournment .....................................16 1
7 Reporter's Certificate ...........................17 1
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(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 4
1 (Open court, 10:41 a.m.)
2 THE COURT: Okay. I'm going to call this
3 under the Harmel case number only because I don't have
4 another case number to call it under right now. It's
5 Cause No. 13-0826-K277, State of Texas versus Crispin
6 Harmel. Where is Ms. Duty?
7 MR. BRUNNER: The State's here,
8 Your Honor.
9 THE COURT: Where is Ms. Duty? That's the
10 question I asked you. I need an answer.
11 MR. BRUNNER: I don't know. She's not --
12 THE COURT: Really? Because she sent me
13 an e-mail yesterday that said she would clear her
14 schedule and be here at any time of the day that we
15 schedule it. I sent an e-mail to all counsel, including
16 Ms. Duty, to be here at 10:30. Where is she?
17 MR. BRUNNER: She's not in this room.
18 THE COURT: Okay. Then here's what we're
19 going to do. We're not going to have this little
20 proceeding right now. What we're going to do -- I have
21 two options: You can get ahold of her and you can get
22 her here, or I will issue a capias and I will get her
23 here. Which do you prefer?
24 MR. BRUNNER: I'll try to get ahold of
25 her, Your Honor.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 5
1 THE COURT: Get on it.
2 MR. BRUNNER: Can you tell me what this
3 hearing is for?
4 THE COURT: Do what?
5 MR. BRUNNER: Can you tell me what this
6 hearing is for?
7 THE COURT: You'll know when she shows up.
8 MR. BRUNNER: Okay. Thank you, Your
9 Honor.
10 (Recess from 10:42 to 11:09)
11 (Open court)
12 THE COURT: We're back on the record.
13 Mr. Brunner, were you able to contact Ms. Duty?
14 MR. BRUNNER: I was, Your Honor.
15 THE COURT: And?
16 MR. BRUNNER: I let her know what you said
17 earlier and that her presence was requested in court.
18 She said that she didn't -- she didn't think the e-mail
19 said that she would for sure be here, that she was
20 trying to clear her schedule, that she didn't know --
21 not knowing what this hearing was about, she didn't --
22 she said words to the effect of, you know, "If the Court
23 is not going to give me the respect to let me know what
24 this is about, there's no need to be there." The State
25 is going to be represented by us.
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 6
1 THE COURT: So bottom line is, she's not
2 coming?
3 MR. BRUNNER: I don't know that, Judge.
4 THE COURT: Okay. Well, we're starting,
5 and she's not here.
6 MR. BRUNNER: Okay.
7 THE COURT: Okay. For the record,
8 yesterday afternoon, I sent an e-mail to all counsel --
9 and sorry, Ms. Jernigan, you weren't involved with kind
10 of everything that was going on, and I forgot to put you
11 on the list, although I assumed that you would be
12 notified -- that indicated that I was trying to get
13 everyone to come in on Monday. However, I understood
14 that Ms. Duty was going to be out of town on Monday for
15 a funeral or something. And so I didn't want to wait
16 till the end of next week, and so I requested that we do
17 this today.
18 I received responses back. The defense
19 indicated they were available after 10:00. Ms. Duty
20 sent me an e-mail at 5:51 p.m. stating that she would be
21 glad to rearrange her schedule for today. However, she
22 would like some notice as to what it was about.
23 I indicated at the time that I didn't
24 think it would take more than 10 or 15 minutes for the
25 hearing -- that was in the first e-mail -- but it was
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 7
1 pretty clear that I needed all counsel here today.
2 I responded to that e-mail, including
3 everyone, that said to meet in my courtroom at
4 10:30 a.m. this morning.
5 The reason that we were here today, and it
6 doesn't really have anything to do with the murder
7 trial, per se, as far as facts or discovery or forensics
8 or any of this other mess. What we're here today to do
9 is to address some issues that I think have come to a
10 head this week regarding the disrespect to fellow
11 attorneys and to the Court that I have observed.
12 When I started back in November of 2013, I
13 expected some testing, being a new judge. And
14 initially, there was some conduct that I felt was a
15 little over the line. But, unfortunately, it's gotten
16 worse since that point in time.
17 Now I think it's to the point that we need
18 to get something -- that we need to do something about
19 it. And I will tell you, this comes both from the DA's
20 office as well as from the criminal defense bar, and
21 also, to some extent, from the civil and the family law
22 bar, although not as much because they're really not in
23 court as much as the others.
24 I will tell you, Mr. Brunner -- and this
25 obviously needs to go to Ms. Duty, as well -- that
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
dc2526fa-e518-4c6c-9a88-334dfdcc01e1
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Page 8
1 respect flows downhill. In the DA's office, the
2 employees and the assistant DAs will follow the lead of
3 Ms. Duty as the elected DA and you as the first
4 assistant. If you don't show respect for the other
5 attorneys or the Court, then neither will your staff or
6 the other attorneys that work in your office. And I
7 don't want you to think I'm just picking on the DA's
8 office. Because even though it seems to be more
9 prevalent there, at least in the last months or so,
10 Mr. Magee, you were way out of line earlier this week in
11 the way that you dealt with Mr. Webster. I understand
12 that you have extended an apology to Mr. Webster, and
13 you also apologized to the Court. And I appreciate
14 that, but we never should have ever gotten to that
15 point.
16 To me, this case has gotten completely out
17 of hand. It seems that all the attorneys want to make
18 this some personal game among the lawyers, and that's
19 not what it is. This is a case about the DA trying to
20 put together evidence in their case to prosecute and
21 convict a guy that they believe committed murder. From
22 the defense side, it's about trying to get a fair trial
23 for Mr. Harmel and do whatever they can to present the
24 best defense possible and get an acquittal for their
25 client. That's what you're here to do. It's not about
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
simonewrightcourtreporter@gmail.com
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Page 9
1 the lawyers.
2 The family and friends of the victim in
3 this case don't care if you like each other. The
4 defendant's family doesn't care if you like each other.
5 But they do care when the conduct jeopardizes the
6 integrity of the court proceedings and it takes away
7 from what this case is really about.
8 Everybody at some point in their career,
9 when they try cases, gets involved in a case that
10 becomes somewhat personal, for whatever reason that may
11 be. However, as attorneys, you can't let that dictate
12 how you deal with each other, you can't allow that to
13 cause you to act disrespectful to each other, and
14 definitely can't allow that to cause you to fail to
15 follow the proper protocol in court.
16 As attorneys, you are held to a higher
17 standard. Your clients expect it, the other lawyers
18 expect it, the State Bar expects it, and I expect it.
19 The main reason we ended up here today is,
20 back a few weeks ago, actually, on April 9th, 2015, when
21 we were here in court, Mr. Brunner, you asked and made a
22 request from the Court that a gag order be put in place,
23 and the defense actually agreed to it. I signed that
24 order on April 9th, 2015 that states, "The parties,
25 attorneys, and employees of the attorneys in this case
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 10
1 are prohibited from communicating with the press/media
2 regarding this case or publicly commenting on this case
3 during the pendency of the proceedings."
4 Unfortunately, there's been a violation of
5 that court order. And Ms. Duty on Wednesday of this
6 week sent me an e-mail indicating that she intended to
7 violate that order by contacting the Austin
8 American-Statesman to, quote, "defend" herself regarding
9 an article that had something to do with the pleadings
10 that were filed by the defense in this case.
11 I kind of hoped that she would think a
12 little better of that and not follow through with it,
13 but yesterday I received a copy of an article by, I
14 think, Ms. Osborne with the American-Statesman that
15 appears to have several quotes from Ms. Duty about the
16 case and about the filings that were made by the
17 defense.
18 This is in direct violation of the order
19 that was put into place. And, unfortunately, it was put
20 in place at the State's request. And, yet, even though
21 they got what they wanted, they continued to violate
22 that order.
23 I generally probably wouldn't have thought
24 much of it, other than to admonish the attorneys to
25 comply with the court order, but it's not this one
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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Page 11
1 instance. In the last several months there's been
2 multiple incidences about disrespect to the Court, one
3 in particular about what appears to be a
4 misrepresentation to another district judge about the
5 status of contact with witnesses -- I'm sorry -- with
6 victims that may very well have affected the plea or the
7 sentence in that case. And now I've got a direct
8 violation of the court order from the elected DA.
9 So that's one of the reasons why I
10 needed -- or wanted Ms. Duty here. I don't think I
11 necessarily have to have her here, that's why we're
12 proceeding forward today. And so I believe that
13 Ms. Duty's conduct constitutes contempt of court, and
14 it's a direct violation of the Court's orders.
15 And my understanding -- I've looked at a
16 couple different things, and the procedure, I
17 understand, is a little different, depending on how you
18 look at it. One procedure is, Judge Stubblefield would
19 need to appoint a judge to review the contempt issue, a
20 special prosecutor would have to be appointed, and then
21 a hearing would be held to determine whether or not
22 Ms. Duty's conduct would be considered in contempt of
23 court, and then a punishment would be assessed.
24 The other option indicates that I would
25 need to go ahead and make a finding of contempt and
(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court
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1 issue a punishment and then, if Ms. Duty wanted to
2 contest that, then that process would go into place and
3 a judge and a special prosecutor would be appointed.
4 Because Ms. Duty is not here, that
5 probably doesn't matter. So at this point, what I'm
6 going to do is, I do find that her conduct was in
7 violation of -- direct violation of a court order by
8 violating the April 9th, 2015 order prohibiting contact
9 with the press or the media. And because of that, I
10 will submit an affidavit and I will talk to
11 Judge Stubblefield and we will get the proper procedure
12 started, and appropriate notice will be sent to everyone
13 involved.
14 It's unfortunate that we've come to this.
15 You know, I've been a judge for, what, a year and a
16 half, a little over that, and I really never thought
17 that there would be an issue to come up to where I would
18 have to deal with contempt of an attorney, especially an
19 elected official. But, unfortunately, I don't see any
20 other choice. The fact that she's not here today kind
21 of tells me that I'm doing the right thing because she
22 doesn't believe and doesn't respect the Court or the
23 other attorneys involved that I -- from what I can
24 tell -- although, I will say that a lot of -- she's
25 acted a little more civilly than a lot of people have in
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1 this case. But the fact that she's not here tells me
2 that she has no respect for this Court. And so she can
3 deal with that in another proceeding at another time.
4 I hope that people can learn a lesson,
5 that you guys can act respectfully to each other,
6 respectful to the Court, and just act like lawyers.
7 We're adjourned.
8 MR. BRUNNER: Your Honor, if I may, off
9 the record or on the record?
10 THE COURT: I don't really need a
11 response. But if you really think you have to, go
12 ahead.
13 MR. BRUNNER: Well, if I didn't think I
14 had to, I wouldn't be talking right now, Your Honor.
15 MR. MAGEE: Are we on the record?
16 THE COURT: Yes, we're on the record.
17 MR. BRUNNER: Just a clarification,
18 because I have to relay this to someone who is not in
19 the room right now. Was this a finding of contempt,
20 Your Honor?
21 THE COURT: That's the question. I've
22 found two different procedures: One indicated that I
23 need to submit an affidavit with a different judge to
24 review. If that judge felt that there was sufficient
25 grounds, I guess, to hold a hearing, that judge would
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1 then issue a show cause order --
2 MR. BRUNNER: Correct.
3 THE COURT: -- and a hearing would be
4 held.
5 MR. BRUNNER: Correct.
6 THE COURT: I've also seen other
7 procedures where it says I actually need to make a
8 finding of contempt and issue a punishment. And then at
9 that point, if Ms. Duty wanted to appeal that or contest
10 that, then that procedure would go into place and a
11 judge would be appointed and a special prosecutor would
12 be appointed and they would go through that procedure at
13 that point in time.
14 MR. BRUNNER: Your Honor, I'm not trying
15 to say my research trumps yours, but based on my short
16 research on this issue, I think the first path may be
17 the more legally safer path.
18 THE COURT: And you may be correct. And
19 that's kind of what my plan is at this point in time,
20 primarily because Ms. Duty is not here.
21 MR. BRUNNER: Okay.
22 THE COURT: And I will prepare an
23 affidavit, I will talk to Judge Stubblefield, we'll get
24 a judge appointed, and then a hearing at some point in
25 time will be conducted and that judge can deal with it.
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1 It's not my issue at that point.
2 MR. BRUNNER: Your Honor, just while we've
3 got everybody here, I think the -- the spirit of the gag
4 order was to not just start leaking prejudicial
5 information all over the place and to -- I think
6 Ms. Duty's frustrations stem from the fact of using
7 pleadings as a de facto way to just kind of like --
8 instead of file for a motion for continuance, it's yet
9 another: "Oh, my gosh, we've just uncovered yet another
10 vast conspiracy. Won't they please stop doing this.
11 P.S. We need a continuance."
12 And after a while that gets a little old,
13 and I understand her frustration.
14 THE COURT: And I understand her
15 frustration, as well. You know what the answer is? The
16 answer is, file a responsive pleading. Okay?
17 MR. BRUNNER: Agreed, Your Honor.
18 THE COURT: You file a responsive
19 pleading, she can say all the same stuff that she wants
20 to say to respond to whatever they've got there, and
21 then you're not in violation of the court order.
22 MR. BRUNNER: Gotcha, Your Honor.
23 THE COURT: It really seems pretty simple.
24 MR. BRUNNER: Great. Thank you, Your
25 Honor.
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1 THE COURT: Okay.
2 (Proceedings adjourned, 11:21 a.m.)
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1 STATE OF TEXAS
2 COUNTY OF WILLIAMSON
3 I, SIMONE M. WRIGHT, Official Court Reporter in and
4 for the 368th District Court of Williamson County, State
5 of Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $75.00 and was
17 paid/will be paid by Williamson County.
18 WITNESS MY OFFICIAL HAND on this, the 15th day of
19 May, 2015.
20 /s/Simone M. Wright
21 SIMONE M. WRIGHT, CSR
Texas CSR 3266
22 Official Court Reporter
368th District Court
23 Williamson County, Texas
405 Martin Luther King, Box 8
24 Georgetown, Texas 78626
Telephone: (512) 943-1280
25 Job No. 160 Expiration: 12/31/2016
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REPORTER'S RECORD
VOLUME 1 OF 2 VOLUMES
TRIAL COURT CAUSE NO. 13-0826-K277
STATE OF TEXAS ) IN THE DISTRICT COURT
)
vs. ) WILLIAMSON COUNTY, TEXAS
)
CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT
_____________________________________________
HEARING ON MOTION TO RECUSE/DISQUALIFY DA'S OFFICE
AND
HEARING ON WRIT OF HABEAS CORPUS/DOUBLE JEOPARDY
_____________________________________________
On the 29th day of May, 2015, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Rick J. Kennon,
Judge Presiding, held in Georgetown, Williamson County,
Texas.
Proceedings reported by computerized stenotype
machine.
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1 APPEARANCES
2
Ms. Jana Duty
3 SBOT NO. 24000244
-and-
4 Mr. Mark Brunner
SBOT NO. 24006917
5 -and-
Mr. Brent Edward Webster
6 SBOT NO. 24053545
Williamson County District Attorney
7 405 Martin Luther King
Suite 1
8 Georgetown, Texas 78626
Telephone: (512) 943-1234
9 COUNSEL FOR THE STATE
10
11 Ms. Kristen Jernigan
SBOT NO. 90001898
12 Law Office of Kristen Jernigan
2007 South Austin Avenue
13 Georgetown, Texas 78626
Telephone: (512) 904-0123
14 E-mail: Kristen@txcrimapp.com
COUNSEL FOR THE DEFENSE
15
16 Mr. Ryan Herbert Deck
SBOT NO. 24040781
17 The Office of Ryan Deck
107 N. Lampasas Street
18 Round Rock, Texas 78664
Telephone: (512) 251-8920
19 E-mail: Ryandecklaw@gmail.com
COUNSEL FOR THE DEFENSE
20
21 Mr. Randall Scott "Scott" Magee
SBOT NO. 24010204
22 R. Scott Magee, Attorney At Law
107 N. Lampasas Street
23 Round Rock, Texas 78664
Telephone: (512) 983-1675
24 E-mail: Scott@mageefirm.net
COUNSEL FOR THE DEFENSE
25
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1 VOLUME 1
2 Hearing on Motion to Recuse/Disqualify DA's Office and
3 Hearing on Writ of Habeas Corpus/Double Jeopardy
4
5
6 May 29, 2015
7 PAGE VOL.
8 Announcements .....................................6 1
9 Argument by Defense on Recusal/Disqualification ...7 1
10 Argument by State on Recusal/Disqualification ....12 1
11 Rule Invoked .....................................17 1
12 DEFENSE WITNESSES (ON RECUSAL/DISQUALIFICATION):
13 Jana Duty Direct Cross V.Dire
By Mr. Deck 25 v1
14 By Mr. Brunner 66 v1
By Mr. Deck 75 v1
15
Defense rests on Recusal/Disqualification .......83 1
16
STATE'S WITNESSES (ON RECUSAL/DISQUALIFICATION):
17
Rod Henegar Direct Cross V.Dire
18 By Mr. Brunner 84 v1
By Mr. Magee 86 v1
19
State rests on Recusal/Disqualification .........89 1
20
Closings Wavied (on Recusal/Disqualification) ....90 1
21
Court's Ruling ...................................90 1
22
23
24 (continued)
25
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1 Rule Invoked .....................................98 1
2 DEFENSE WITNESSES (ON DOUBLE JEOPARDY WRIT):
3 Jana Duty Direct Cross V.Dire
By Mr. Deck 100 v1
4 By Mr. Brunner 178 v1
By Mr. Deck 217 v1
5 By Mr. Brunner 227 v1
6 Detective Pando Direct Cross V.Dire
By Mr. Deck 232 v1
7 By Mr. Brunner 250 v1
By Mr. Deck 257 v1
8 By Mr. Brunner 262 v1
By Mr. Deck 264 v1
9 By Mr. Brunner 270 v1
10 Detective Bond Direct Cross V.Dire
By Mr. Deck 271 v1
11 By Mr. Brunner 288 v1
By Mr. Deck 299 v1
12
Adjournment ....................................307 1
13
Reporter's Certificate ..........................308 1
14
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22
23
24
25
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1 ALPHABETICAL INDEX OF WITNESSES
2 Direct Cross V.Dire
3 Bond, Detective Larry 271 v1 288 v1
299 v1
4
Duty, Jana 25 v1 66 v1
5 75 v1 178 v1
6 Duty, Jana 100 v1 227 v1
217 v1
7
Henegar, Rodney Carroll 84 v1 86 v1
8
Pando, Detective Ricky 232 v1 250 v1
9 257 v1 262 v1
264 v1 270 v1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 EXHIBITS OFFERED BY THE STATE
2 EXHIBIT DESCRIPTION OFFERED ADMITTED
3 1 Handwritten notes by 187 v1 187 v1
Jana Duty
4
2 Victim/Suspect 263 v1 263 v1
5 Timeline created by
Detective Pando
6
7
8
9 EXHIBITS OFFERED BY THE DEFENSE
10 EXHIBIT DESCRIPTION OFFERED ADMITTED
11 1 DVD - KXAN Video 24 v1 24 v1
12
13
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24
25
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1 A. Probably Brent and I spoke at some point,
2 maybe, about some issues. My husband --
3 Q. (BY MR. DECK) Did you ever -- did you ever
4 speak to any of the detectives in this case regarding
5 your testimony?
6 A. As it relates to my computer and what was found
7 on my computer, yeah, we talked about that.
8 THE COURT: Before we keep going, the
9 testimony right now, my understanding, is going to be
10 limited just to the recusal issue, correct, the
11 disqualification?
12 MR. DECK: Correct.
13 THE COURT: Not the double jeopardy issue.
14 MR. DECK: Fair enough, Judge. I'll move
15 along.
16 MR. BRUNNER: Thank you, Your Honor.
17 Q. (BY MR. DECK) Ms. Duty, I'm going to ask you
18 about the alleged violation of the gag order. And I'm
19 sure you're aware of that, yes?
20 A. Yes.
21 Q. On April 9th of this year, the judge,
22 Judge Kennon, entered an order that --
23 MR. BRUNNER: May we approach, Your Honor?
24 THE COURT: Yes.
25 (Bench conference on the record)
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1 MR. BRUNNER: She is subject to criminal
2 contempt.
3 THE COURT: I know that. I was about to
4 do this --
5 MR. BRUNNER: This is not proper. Sorry.
6 THE COURT: Well, they can ask, and you
7 can warn Ms. Duty about her right to testify or not to
8 testify and plead the Fifth Amendment. It's her
9 decision.
10 MR. BRUNNER: Okay.
11 THE COURT: I mean, I don't know what else
12 to do with that.
13 MR. DECK: That's fine.
14 MR. BRUNNER: I don't want to -- if that's
15 the one question that gets us there, but we don't need
16 five or ten of them.
17 THE COURT: Well, I kind of -- well,
18 actually, I think they can ask, and she has to plead the
19 Fifth on it every time.
20 MR. BRUNNER: We're wasting time, but --
21 MS. JERNIGAN: But, Judge, I'll proffer to
22 the Court, if she's going to plead the Fifth as to that
23 kind of question, we'll move on, Judge. We can't force
24 her to testify about that issue.
25 THE COURT: Okay.
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1 MR. BRUNNER: Well, on her behalf,
2 Your Honor, as to the -- as to the -- as to the alleged
3 violation of the gag order, I'll plead the Fifth for
4 her.
5 MS. JERNIGAN: No. Your Honor, under the
6 case law, she has to assert her right.
7 THE COURT: I understand that. Let's do
8 it on the record real quick.
9 MR. WEBSTER: This isn't civil. It has to
10 be all or nothing. If she pleads the Fifth -- for
11 civil, it's every question. Criminal, she pleads the
12 Fifth or not. So if that's the case, we're done here.
13 MS. JERNIGAN: Can we be included?
14 MR. WEBSTER: You walked away.
15 THE COURT: Well, that's why I wanted you
16 back up here.
17 MR. BRUNNER: Don't walk away.
18 THE COURT: Their argument is that if she
19 pleads the Fifth on any issue, her testimony is over
20 because it's criminal as opposed to civil.
21 MR. WEBSTER: As far as the proceeding
22 today.
23 MR. DECK: Well, that's just one issue.
24 MS. JERNIGAN: I mean, if they're going to
25 try and King's X us on developing a record for our
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1 recusal motion, then we will have to, I guess, let the
2 contempt go first and then have our --
3 MR. BRUNNER: Just ask the question.
4 That's fine. I'll withdraw my objection, Your Honor --
5 or my approaching. Let's just pretend it didn't happen.
6 THE COURT: Okay.
7 (Bench conference ends)
8 Q. (BY MR. DECK) Ms. Duty, I'm going to ask you
9 some questions regarding the violation of the gag order.
10 Do you understand that?
11 A. The alleged, yes.
12 Q. Fair enough. The alleged violation of the gag
13 order. Do you understand?
14 A. Yes.
15 THE COURT: Before you do that, Ms. Duty,
16 I know you know this, and I think you probably talked to
17 Mr. Brunner about this --
18 THE WITNESS: Right. I know that I'm
19 subject to --
20 THE COURT: Okay. You have the right to
21 remain silent and not say anything. Do you understand
22 that?
23 THE WITNESS: Yes. Yeah.
24 THE COURT: Okay. Thank you.
25 Q. (BY MR. DECK) Do you choose to go forward and
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1 answer questions here today regarding the alleged
2 violation of the gag order?
3 A. Yes.
4 Q. Going back to the question I had before, before
5 the approach, on April 9th, Judge Kennon entered an
6 order that prohibited the attorneys in the Harmel case
7 from communicating with the press or media regarding the
8 case or any public comments about the case. Do you
9 remember that order?
10 A. The written order?
11 Q. Yes.
12 A. I didn't know about the written order until
13 much later because it was never sent to me, so I never
14 knew it was offered to the judge for his signature and
15 then filed. So at that time, I did not know that a
16 written order had been put in place.
17 Q. And you know, of course, that -- at least now
18 you know that that written order was actually given to
19 your first assistant, Mark Brunner, yes?
20 A. It was sent to him on the same day that it was
21 signed, yes.
22 Q. That's correct. And it's not uncommon, right,
23 for you and Mr. Brunner to talk about these -- about
24 this case, right?
25 A. Right.
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1 Q. In fact, if Mr. Brunner had that in his e-mail
2 in-box and he saw it, you would expect him to tell you,
3 I assume?
4 MR. BRUNNER: Objection, Your Honor.
5 That's speculative and it's work product. She would
6 expect me that, if I saw something, I would tell her
7 about it?
8 THE COURT: Overruled.
9 Q. (BY MR. DECK) You would expect your first
10 assistant, with whom you've worked many, many, many
11 months with, that if he found -- if he saw something in
12 his in-box regarding a written order, he would tell you
13 about it, wouldn't he?
14 A. If it was something worthy of telling me about
15 and if he saw it, yes.
16 Q. Is a violation of a gag order worthy?
17 MR. BRUNNER: Objection --
18 Q. (BY MR. DECK) Excuse me. Is a gag order
19 worthy?
20 MR. BRUNNER: Objection, speculative.
21 MR. DECK: I'm asking her opinion.
22 THE COURT: Overruled.
23 A. If Mr. Brunner had seen the gag order and
24 wanted to come discuss it with me to say, Hey, I've
25 gotten this, let's talk about it -- I mean, yeah,
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1 generally that's how it happens. But he never came to
2 talk to me about it, so as far as I know, he didn't see
3 it.
4 Q. (BY MR. DECK) And, of course, you were in court
5 when the judge verbally said those things, that we were
6 not to talk to the media anyway? You were in court,
7 were you not?
8 A. Where we all agreed, in theory, that there was
9 going to be a gag order put in place? Yes.
10 Q. No, no. Actually, it wasn't in theory. We
11 actually agreed, did we not?
12 A. That a gag order was going to be put in place,
13 yes.
14 Q. In fact, if I remember correctly, the judge did
15 order it, and then he asked for a written order later,
16 and I believe your first assistant, Mark Brunner, said,
17 "Judge, you just said it," as in: You just ordered it.
18 Do you remember that?
19 A. Uh-huh. There were several -- several things
20 that we specified -- or somebody specified that needed
21 to be in the order, and those things weren't in the
22 order, either.
23 Q. So, Ms. Duty, I have a question: If the
24 very -- if later this afternoon, after what Mister --
25 excuse me -- Judge Kennon had ordered orally, if I
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1 went -- immediately went and called KXAN, would you have
2 felt -- honestly, would you have felt that I violated
3 Judge Kennon's order?
4 A. I think it depends on what you say. Because
5 most gag orders that I have seen are very specific about
6 what is prohibited and what is not prohibited. And so I
7 guess it depends on what you were saying to the media of
8 whether or not it would fall within the parameters of
9 being a violation.
10 Q. So just so we're real clear, under oath, what
11 your testimony is today in front of this court and
12 everybody here, you're saying that if that afternoon I
13 went and called Austin American-Statesman and started
14 making comments about the Harmel case -- any comments,
15 Ms. Duty, any -- you're telling me that may not have
16 been a violation of the order that Judge Kennon gave us
17 in front of you? That's what you're saying under oath?
18 A. No. I think if you made comments about the
19 case, that would probably fall within the parameters of
20 being a violation of the order.
21 Q. And it would have angered you, would it not, if
22 I would have done that?
23 MR. BRUNNER: Objection, speculative.
24 THE COURT: No. That's overruled. That's
25 not speculative.
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1 MR. BRUNNER: About angry? What her
2 emotional state would be to something hypothetically
3 that he says, Your Honor?
4 THE COURT: I think based on the
5 circumstances in this case, she can probably answer that
6 question.
7 MR. BRUNNER: Okay.
8 A. Generally, in most gag orders that are -- that
9 are very specific, which is how they're supposed to be
10 written, talking about the facts of a case are what
11 is -- that's generally what's prohibited in a gag order.
12 So if you called the Statesman and you
13 were talking about the facts of the case, that, I would
14 think, would fall within the parameters of being a
15 violation.
16 Q. (BY MR. DECK) And by the way, I mean, if we're
17 going to call the Statesman about the Harmel case,
18 wouldn't we not be talking about the facts of the case?
19 I mean, isn't that why you would talk to the Statesman,
20 or any news outlet, for that matter?
21 A. No. No. When you're talking to the Statesman,
22 you can be talking about a lot of things. For example,
23 accusations that are being made against me, that I
24 violated some, you know, ethical rule or that I've --
25 you know, I'm withholding evidence in a case, that has
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1 nothing to do with the facts of the Harmel case, that
2 has to do with an attack on me.
3 And so the -- the ethical rules and -- I
4 believe most gag orders, the way they're written, they
5 allow you to defend yourself.
6 Q. Is it your testimony -- is it your sworn
7 testimony, Ms. Duty, that when you spoke to the Austin
8 American-Statesman, you did not believe that there was
9 an order in place for the attorneys of the Harmel case
10 to not speak to the news media in any way regarding the
11 Harmel case? Is that your sworn testimony this morning?
12 A. I knew that we had agreed in court that we
13 would put a gag order in place. I did not know that
14 there was a written order in place because I never saw
15 it; it was never sent to me. And I would assume that if
16 a written order was in place, that it would have been a
17 proper order.
18 Q. Now, you know, like we've talked about, it was
19 certainly spoken about, was it not?
20 A. Yes.
21 Q. Okay. And, in fact, it was spoken about
22 roughly three weeks before you spoke to the Austin
23 American-Statesman; is that fair enough?
24 A. Probably. That's about right.
25 Q. Now, the fact that it was spoken about and
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1 three weeks have gone by -- and you know, of course --
2 you would agree with me, right, the judge did ask for a
3 written order, did he not?
4 A. Yes.
5 Q. Okay. You certainly could have gone down to
6 the clerk's office, said, "Hey, do you mind if I look at
7 the file," and verified that, in fact, there was a
8 written gag order? You could have done that, could you
9 not?
10 A. Yes.
11 Q. You did not, did you?
12 A. No.
13 Q. In three weeks, you could have, couldn't you
14 have?
15 A. I don't know that it was in place for three
16 weeks, but --
17 Q. Roughly?
18 A. -- yeah, sure. Okay.
19 Q. Okay. And you know, of course, that you
20 guys -- excuse me -- the State has filed, yesterday or a
21 couple days ago, an emergency motion to stay these
22 proceedings?
23 MR. BRUNNER: Objection. That's not
24 relevant, Your Honor. That's a separate issue.
25 THE COURT: That's sustained.
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1 Q. (BY MR. DECK) On May 6th, which is almost a
2 month after April 9th, which is when the Judge entered
3 the order, you sent an e-mail to the judge, did you not?
4 A. I'm assuming that date is correct.
5 Q. If at any point, Ms. Duty -- honestly, you know
6 I'm not going to try to trick you. I don't do it that
7 way. If at any point you would like me to show you
8 something to jog your memory, I certainly will do that.
9 What I'm representing to you is that,
10 based on this e-mail that I'm looking at, you sent an
11 e-mail on May 6th to the judge. Does that sound about
12 right?
13 A. Yes.
14 Q. Now, you agree, of course, that -- and,
15 in fact, the State has argued in this very case that
16 ex parte communications are frowned upon, aren't they?
17 A. Yes.
18 Q. You don't like it if a defense attorney has
19 ex parte communications regarding any aspect of a case,
20 do you?
21 A. No.
22 Q. Now, you knew our e-mail address, didn't you?
23 A. Yes.
24 Q. You certainly -- and, in fact, you've actually
25 sent e-mails to the judge, cc'd every single lawyer in
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1 this case; you've done that before, haven't you?
2 A. Yes.
3 Q. But on May 6th, Ms. Duty, you did not, did you?
4 A. Not that I recall.
5 Q. And, Ms. Duty, you would agree with me that
6 that is an ex parte communication, is it not?
7 A. Well, ex parte communications are about the
8 facts of the case.
9 Q. Okay. So your testimony -- your sworn
10 testimony is that you don't believe that that
11 communication to the judge was ex parte communications?
12 Is that your sworn testimony, Ms. Duty?
13 A. Yes. I do not believe that that was an
14 ex parte communication because it had nothing to do with
15 the facts of the case.
16 Q. Is there any particular reason why you did not
17 cc the defense team, when you cc'd the defense team
18 almost every other time that I know of you've e-mailed
19 the judge?
20 A. I guess because it wasn't about the facts of
21 the case.
22 Q. So that's the reason that you did not cc the
23 defense team on your communication with the judge via
24 e-mail on May 6th?
25 A. Yeah, or I just didn't think about it.
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1 Q. It never entered your mind --
2 A. No.
3 Q. -- that we might -- if you don't mind, I've got
4 to make this clear for the record.
5 It never entered your mind that it might
6 be something we'd like to know that you're talking about
7 the judge -- you're talking to the judge about speaking
8 to a news outlet, knowing that we were in court when the
9 judge said we were not to speak to the news outlets?
10 A. It's not about the facts of the case, so,
11 therefore, I didn't think that it was relevant to you.
12 Q. Does it surprise you to know, Ms. Duty, that we
13 would be very interested in a communication like that?
14 Does that surprise you to know that right now?
15 A. Well, of course you would be.
16 Q. Right. So you knew that we would want to know
17 about that communication, but you actively did not
18 include us --
19 A. No, I didn't --
20 Q. Ms. Duty. Excuse me. You actively did not
21 include us in that communication; isn't that fair to
22 say?
23 A. I didn't think that through.
24 MR. BRUNNER: Your Honor, that's been
25 asked and answered about three times.
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1 A. I didn't think it through about how interested
2 you would be in me talking to the Statesman reporter
3 about defending myself against all of your ridiculous
4 allegations. No, I did not think that through.
5 Q. (BY MR. DECK) And on May 7th, the very next
6 day, the Austin American-Statesman, in fact, had an
7 article, did it not?
8 A. Yes.
9 Q. And in that article, there are quotes from you;
10 isn't that true?
11 A. Yes.
12 Q. And the reason why there are quotes from you is
13 that you contacted a reporter with the Austin
14 American-Statesman and you gave that reporter quotes,
15 did you not?
16 A. Yes.
17 Q. And the very next day -- excuse me -- the same
18 day that article came out, Judge Kennon sent an e-mail
19 to all counsel, including you, to meet the very next
20 morning, that Friday morning; isn't that true?
21 A. I'm assuming your dates are right.
22 Q. Fair enough.
23 A. I could have sworn the article came out on
24 Wednesday. Is that right? The article came out on
25 Wednesday?
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1 I don't recall how close in time
2 everything happened, but, yes, I did get an e-mail from
3 the judge.
4 Q. It came out May 7th; is that fair to say? I
5 can jog your memory if you'd like.
6 A. Is that a Wednesday or a Thursday.
7 Q. I don't know that, Ms. Duty. I'm not --
8 Thursday.
9 A. All right. Then, yes.
10 Q. Okay. So it comes out on Thursday with your
11 quotes, and the very -- the very same day, the judge
12 sends an e-mail to all counsel, making it very clear
13 that he wanted to meet us the very next morning; is that
14 fair to say?
15 A. Yes.
16 Q. Now, is it your sworn testimony, Ms. Duty --
17 THE COURT: Before you go on, Counsel, can
18 you approach?
19 (Bench conference on the record)
20 THE COURT: I kind of know where you're
21 going with all this, but what does it have to do with
22 disqualification or recusal?
23 MS. JERNIGAN: Violations of the court
24 order and multiple professional conducts are what we're
25 talking about now, Judge. Because if you're going to
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1 rule that we can't recuse her, we've got to build a
2 record to show those violations. We have to show her
3 willful disdain for the rules of the court and our
4 client's rights.
5 MR. BRUNNER: "Our client's rights" and
6 the "rules of the court" are two different things,
7 Your Honor. Mr. Harmel wasn't even at the meeting that
8 we were all summoned to, Your Honor. This was a
9 lawyers-only meeting. We'll proffer she wasn't here on
10 Friday, the 8th. We'll proffer that.
11 THE COURT: Okay. I understand what
12 you're saying, but I agree that Friday
13 conference/meeting, whatever you want to call it,
14 really -- and I think I said it on the record -- didn't
15 really have to do with, quote, "the facts or the issues
16 in the Harmel case, it had to do with the violation of
17 that court order."
18 MS. JERNIGAN: Well, I realize that,
19 Your Honor. But prior to Your Honor taking the bench, I
20 asked your bailiff if our client was going to be here,
21 because I do think that behavior and conduct of this
22 nature shows that she has personal animosity and has
23 thrown all the rules out the window with respect to
24 prosecuting my client.
25 MR. BRUNNER: So because she didn't like
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1 Mr. Harmel, she didn't show up for court? I think
2 that's a stretch, Your Honor.
3 THE COURT: Let's do it quick.
4 MR. DECK: Okay. Gotcha.
5 THE COURT: To me, that's like a one- or
6 two-question deal.
7 MR. DECK: I get it. I can.
8 THE COURT: Okay.
9 (Bench conference ends)
10 THE COURT: Go ahead, Mr. Deck.
11 MR. DECK: Thank you, Judge.
12 Q. (BY MR. DECK) The fact of the matter is, the
13 judge set a hearing the very next morning; isn't that
14 correct -- excuse me -- a meeting, I should say, at
15 least, on May 8th?
16 A. Yes.
17 Q. Okay. And, of course, you weren't there?
18 A. Correct.
19 Q. And isn't it true that later on May 8th you
20 sent an e-mail to the judge?
21 A. Yes.
22 Q. And in that e-mail, you did cc all counsel in
23 this case?
24 A. I didn't?
25 Q. No. You did.
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1 A. Okay. Okay.
2 Q. Is that fair to say?
3 A. I'm assuming so, yes.
4 Q. Okay. And also in that e-mail, you stated that
5 you didn't show up because you were not given enough
6 respect from the Court, and so therefore, you would not
7 give respect to the Court by showing up to the hearing.
8 Do you remember something to that effect?
9 A. Something to that effect, yeah.
10 Q. So it wasn't because your child was sick or
11 anything like that, you didn't show up as a show of
12 disrespect to the Court?
13 A. No. Actually, I had plans for that day. I had
14 that day off because I had family in town.
15 And so I said, I will attempt to rearrange
16 my schedule if this is something important that I need
17 to be there for.
18 And when I saw that it was going to be a
19 10-to-15-minute meeting, I thought, okay, well, it must
20 not be something major if it's going to be so short.
21 And the fact that the judge didn't tell me what it was
22 about, I thought, well, I will send my co-counsel
23 because I have plans for the day, and I'm not going to
24 come up to the courthouse for 10 to 15 minutes if my
25 co-counsel can be there.
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1 Q. And that's all fine and well, Ms. Duty, but I
2 want to ask you about a specific sentence in your
3 e-mail.
4 A. Yes.
5 Q. Okay. "If you don't respect me enough to give
6 me the information I requested, I will not give you" --
7 "you" being Judge Kennon; is that fair to say?
8 A. Yes.
9 Q. -- "I will not give you respect and show up."
10 Isn't that what you wrote?
11 A. Well, that's part.
12 Q. Is that what you wrote, Ms. Duty?
13 A. Yes, but that's only part of it. The other
14 part was that there -- it's one of two things: One is,
15 it wasn't important enough for me to be there --
16 Q. Ms. Duty, unfortunately that's not my question,
17 and your answer at this point is nonresponsive. I just
18 need you to answer my question, if you don't mind.
19 Okay?
20 A. Uh-huh.
21 Q. One of the other lines in your e-mail -- and
22 I'm going to quote you, and if for any reason you need
23 to read your e-mail, of course, I have it -- quote, "But
24 making a public spectacle out of punishing me just hurts
25 everyone. No one will come out unscathed."
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1 Did you write that Ms. Duty?
2 A. Yes.
3 Q. What did you mean by that?
4 A. Well, when we have a battle, everybody --
5 everybody gets wounded.
6 Q. Now, when I read that, Ms. Duty, I read that as
7 a threat. Was it a threat?
8 A. No. It's just the truth. When public
9 officials fight, it's -- it's ugliness, it's always in
10 the media, and everybody ends up looking bad.
11 Q. Isn't it true, Ms. Duty, that we -- and by "we"
12 I mean all the counsel in this case, including the
13 judge, including the court reporter -- we met on May 5th
14 in the grand jury room, which is in your office; isn't
15 that fair to say?
16 A. Yes.
17 Q. And isn't it also fair to say, Ms. Duty, that
18 at that time, you had in your possession -- you had read
19 the Defense's motion for continuance; isn't that fair to
20 say?
21 A. I'm sure I had it in my possession, but I
22 probably hadn't read it.
23 Q. Well, I mean -- let's talk about that for a
24 moment. I mean, because I know we had some discussions
25 in Judge's chambers, and I remember you being very, very
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1 upset about the allegation, according to you, that not
2 all evidence was given to us from Detective Acevedo. I
3 mean, obviously, did someone tell you that, or did you
4 read it for yourself?
5 A. I don't know how I knew that that was the
6 allegation. Maybe I read it or maybe Mark and I talked
7 about it and he said, you know, The allegation is that
8 all the information is not on here. And that was the
9 first that I had heard of it. Because I didn't actually
10 look at the discs, so I didn't know what was on there.
11 Q. So it's fair to say, then, one way or the
12 other, you knew what was being asserted in that motion
13 for continuance, roughly, at least; is that fair to say?
14 A. Yes.
15 Q. Okay. Now, you also, I assume, would agree
16 with me that nothing -- nothing was going to stop you --
17 nothing could have stopped you, I should say, between
18 bringing it up to the judge while we're there in the
19 grand jury room, "Hey, Judge, I would like to speak to
20 the news outlet," despite the fact of what you said in
21 open court? You could have done that in that grand jury
22 room, could you not have?
23 A. At that time, it was not public -- I mean, it
24 wasn't being reported on.
25 Q. But you were certainly angry about it?
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1 A. Yeah.
2 Q. And you know, of course, that anything filed
3 with the clerk is public?
4 A. Well, since you guys immediately sent it to the
5 media, yeah.
6 Q. That did not happen, Ms. Duty, but let's move
7 on. Okay?
8 I just want to make sure we're clear. You
9 knew that that motion for continuance was essentially in
10 the public because it was in the clerk's office, did you
11 not?
12 A. But it had not been reported on.
13 Q. But you knew it was -- it was free for the
14 public to look at --
15 A. Yes.
16 Q. -- didn't you?
17 A. Yes.
18 Q. Okay. Yet, you did not bring up to the judge
19 at that point in time, with us present, that you might
20 want to speak to any news outlets, did you?
21 I just need you to answer the question.
22 Did you or did you not bring it up to the judge?
23 A. At that time, no.
24 Q. Ms. Duty, we know you contacted the Austin
25 American-Statesman after the gag order was issued. Did
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1 you contact any other news or media outlets?
2 A. No. They're the only ones that did a story.
3 Q. Okay. So you didn't contact KXAN?
4 A. No.
5 Q. KEYE?
6 A. No.
7 Q. KVUE?
8 A. No.
9 Q. Excuse me. Georgetown Advocate?
10 A. No.
11 Q. Ms. Duty, I would like to now kind of switch
12 gears and talk about the video. Okay?
13 And, of course, you wrote a State's
14 response to Defense's supplemental motion to
15 recuse/disqualify the District Attorney's Office, and in
16 that response, you address a video. So we know what
17 video we're talking about, right?
18 A. Yes.
19 Q. Did you play any part in the production of that
20 video?
21 A. No.
22 Q. You knew nothing about the video until it was
23 completed and given to you by your husband, Daniel
24 Hunsicker; is that correct?
25 A. That's correct.
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1 A. Yes.
2 Q. And have things been said in staff meetings in
3 the privacy of our own office that maybe sometimes are a
4 little unprofessional?
5 A. Yes.
6 Q. Things we wouldn't want to see in the newspaper
7 the next day, correct?
8 A. Yes.
9 Q. But we say it anyway?
10 A. Yes.
11 Q. Talking about newspapers, let's talk about this
12 gag order.
13 When we -- when you asked the Court for an
14 order, do you assume that the Court is going to issue a
15 valid order?
16 A. Yes.
17 Q. Do you assume the Court is going to issue a
18 constitutional order?
19 A. Yes.
20 Q. When we asked the Court in this case to issue a
21 gag order to prevent talking to the media, did we also
22 ask for the -- to limit, let's say, the Defense from
23 posting to an e-mail LISTSERV and trying to use that as
24 a proxy to get information out that way?
25 A. Yes.
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1 Q. And did the judge agree to that?
2 A. Yes.
3 Q. Was that other part of our request and the
4 judge's order to have the Defense not post things to the
5 LISTSERV, did that make it to the written order that he
6 signed -- the judge signed?
7 A. No.
8 Q. So that was said in open court to everybody
9 here, correct?
10 A. Correct.
11 Q. The judge asked Defense counsel, Ms. Jernigan,
12 to write the order, correct?
13 A. Correct.
14 Q. And she didn't write the entire order, did she?
15 A. No.
16 Q. Or at least everything the judge said?
17 A. Correct.
18 Q. He asked for more things, and there was only:
19 No one can talk to the media. Right?
20 A. Yes.
21 Q. There was nothing about a LISTSERV in there,
22 was there?
23 A. No.
24 Q. Did we sit down and let the judge know that we
25 agreed with the proposed order that Ms. Jernigan
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1 proffered to the court?
2 A. No. I never saw it.
3 Q. Was the order signed the same day as it was
4 e-mailed out to us?
5 A. Well, it wasn't e-mailed to me, but, yes.
6 Q. And was it e-mailed only to me?
7 A. Yes. As far as -- as far as I know.
8 Q. So, again, could have been cc'd to you --
9 you're the district attorney, correct?
10 A. Yes.
11 Q. Are you also the first chair attorney in this
12 trial?
13 A. Yes.
14 Q. Also, we have an appellate attorney that's
15 helping us out, Mr. Webster?
16 A. Yes.
17 Q. Was he cc'd on that gag order?
18 A. No.
19 Q. The wisdom of going against the gag order and
20 reaching out to Claire Osborn from the Austin
21 American-Statesman, was that stemming from a desire to
22 deprive this gentleman down on my far right, Mr. Harmel,
23 a fair trial?
24 A. Absolutely not.
25 Q. Was it in a sense of any animosity towards
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1 Mr. Harmel?
2 A. No.
3 Q. Was it in a sense of any animosity towards the
4 judge?
5 A. No.
6 Q. Were you fed up with the accusations of
7 withholding evidence?
8 A. Yes. That's --
9 Q. Did that get a little old?
10 A. -- an understatement. Yes.
11 Q. Did you feel at that time you had had enough?
12 A. Yes.
13 Q. And maybe that's not an explanation -- a good
14 excuse for possibly violating the gag order, but that's
15 the explanation, isn't it?
16 A. It is.
17 Q. Didn't call a press conference?
18 A. No.
19 Q. Didn't go down your rolodex and call everybody
20 else, right?
21 A. No.
22 Q. One reporter wrote a story, and you contacted
23 that one reporter, didn't you?
24 A. Yes.
25 Q. Ms. Duty, are prosecutors allowed to believe
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1 that the Defendant committed a crime?
2 A. Yes.
3 Q. If a defense attorney believes that his client
4 committed a crime, is a defense attorney still allowed
5 to defend that person?
6 A. Yes.
7 Q. If a judge believes that someone committed a
8 crime, are they still -- if they keep it to themselves,
9 at least, are they still able to judge the case and
10 listen to the evidence and weigh it fairly?
11 A. Yes.
12 Q. In fact, are we the only ones in that equation
13 between defense attorney, judge, and State, we're the
14 only ones that have to believe that the Defendant did
15 it, correct?
16 A. Yes.
17 Q. If we didn't believe that someone did it, we'd
18 have to dismiss the case, wouldn't we?
19 A. Yes.
20 Q. So the fact that you have said things either in
21 public or privately that you believe Mr. Harmel is
22 guilty, well, that's why we're all here, correct?
23 A. Yes.
24 Q. If you didn't believe that, you wouldn't be
25 first chair, and we wouldn't be prosecuting this case,
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1 would we?
2 A. Correct.
3 MR. BRUNNER: I'll pass the witness.
4 THE COURT: Mr. Deck?
5 MR. DECK: Thank you, Judge.
6 REDIRECT EXAMINATION
7 BY MR. DECK:
8 Q. Ms. Duty, I want to talk about the ideal way
9 that a lawyer would handle the gag order situation.
10 Okay?
11 MR. BRUNNER: Your Honor, this is not
12 relevant. We're now getting into a CLE lecture here.
13 This is --
14 THE COURT: You brought it up,
15 Mr. Brunner, in your questioning. I'm going to allow a
16 little bit of it, but not a lot.
17 MR. BRUNNER: Those are the magic words,
18 Your Honor. Thank you. I'll settle for that.
19 Q. (BY MR. DECK) Ms. Duty, what a lawyer could do
20 in that situation, the situation you found yourself in,
21 a lawyer could go down to the clerk's office and verify
22 whether or not there is a written gag order issued by
23 the judge. Couldn't a lawyer do that?
24 A. Yes.
25 Q. And if she did and she found that there was a
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1 gag order and she found that that gag order, for
2 whatever reason, was unconstitutional, couldn't that
3 lawyer then file a motion stating that the gag order was
4 unconstitutional? Could she do that?
5 A. Yes.
6 Q. Could that lawyer then set that motion for a
7 hearing in front of Judge Kennon, the judge who issued
8 the order, and have him hear it to determine whether or
9 not that order was constitutional?
10 A. Yes.
11 Q. And if that judge found that the order was,
12 indeed, constitutional [sic], and turns out you're
13 allowed to speak to the media and then you do, wouldn't
14 that be the most ideal, the most legal way of handling a
15 gag order situation?
16 A. If I knew it was there, I would have gone down
17 that direction, yes.
18 Q. Ms. Duty, we're going to go back to the first
19 question. Could a lawyer go down to the clerk's office
20 and check?
21 A. Yes. Yes.
22 Q. But you didn't do any of those things, did you,
23 Ms. Duty?
24 A. I don't even have to go to the clerk's office.
25 I can just pull it up on my computer.
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1 Q. Even better. You didn't even do that,
2 Ms. Duty, did you?
3 A. I did not look to see if there was an order in
4 place.
5 Q. And as the judge mentioned in the hearing -- I
6 think it was the one that you weren't there for -- the
7 other thing a lawyer could do is she could file a
8 responsive pleading, taking issue with the assertions
9 made in the Defendant's pleading. Could a lawyer not do
10 that?
11 A. Yes. I did.
12 Q. A lawyer could do that instead of talking to a
13 news outlet, without verifying whether or not there's an
14 order. Couldn't a lawyer do that?
15 A. I -- yeah. I did file a responsive pleading,
16 yes.
17 Q. You did, Ms. Duty. But isn't it true that you
18 did it after you spoke to a news media outlet, in direct
19 contradiction of what Judge Kennon said in open court?
20 A. What he said in open court was that there was
21 going to be an order put in place.
22 Q. Okay. So --
23 A. And as far as I knew, there was not yet an
24 order put in place, a written order, to my knowledge --
25 Q. Fair enough.
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1 A. -- at that time.
2 Q. So just you felt like anyone could speak to the
3 media after that day in court? Anyone could have spoken
4 to the media right up to the point that a written order
5 was signed by the judge? Is that your interpretation of
6 what happened that day, Ms. Duty?
7 A. Very limited circumstances of what you could
8 talk about, yes.
9 MR. DECK: One moment, Judge, please.
10 Q. (BY MR. DECK) Ms. Duty, you were in court on
11 April 8th regarding this case, were you not?
12 A. I'm assuming so.
13 Q. Right. Because you were in court for
14 everything regarding this case except for one time;
15 isn't that fair to say?
16 A. Probably, yes.
17 Q. And, again, if you need your memory refreshed,
18 of course, we have the transcript.
19 Mr. Brunner said near the end of that --
20 near the end of the hearing on April 8th, "Your Honor,
21 the gag order is still in effect?"
22 That was a question.
23 The Court said, "Yes."
24 Mr. Brunner said, "Thank you, Your Honor."
25 So is it your sworn testimony here today,
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1 Ms. Duty, that there was not an order in effect, even
2 though your first assistant asked that exact question in
3 front of you to this judge? Is it your sworn testimony,
4 Ms. Duty, that it was not in effect?
5 A. Well, if it's a valid gag order and it's in
6 effect, then that allows you to still do certain things.
7 Q. Ms. Duty --
8 A. So I'm assuming that if the judge is saying,
9 "Yes, there's a gag order in place," that it's a valid
10 gag order. And a valid gag order is very specific.
11 It's not one sentence. It's usually about a page long,
12 and it talks about what's restricted and what is not.
13 And under most gag orders that I have seen, being able
14 to defend yourself is excluded. You can do that. You
15 just can't talk about the facts of the case.
16 Q. Ms. Duty, you've never felt like you
17 couldn't -- in these hearings, you've never felt like
18 you couldn't speak up to the judge in these hearings,
19 right? I mean, you've always been able to speak up to
20 the judge if you wanted to, right?
21 A. Yes.
22 Q. And so if Mr. Brunner asks, "Your Honor, the
23 gag order is still in effect?" and he response, "Yes,"
24 and your first assistance says, "Thank you, Your Honor,"
25 could you not have said, "Judge, hold up. Let's talk
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1 about that order. What exactly does it entail?" Could
2 you not have done that?
3 A. I was assuming that Ms. Jernigan --
4 Q. I'm asking you -- no, no. I'll be very clear.
5 A. Yes. Could I have done that? Yes.
6 Q. And, of course, you did not?
7 A. No, I didn't.
8 Q. And isn't it true that your office challenged
9 the gag order at the Court of Appeals just this week,
10 and your petition was denied?
11 MR. BRUNNER: Objection, Your Honor. This
12 is not relevant.
13 THE COURT: Actually, Ms. Duty has made it
14 relevant.
15 So go ahead and ask the question.
16 MR. BRUNNER: How is that, Your Honor?
17 THE COURT: Because her whole point is
18 it's not a valid order.
19 MR. BRUNNER: Okay.
20 Q. (BY MR. DECK) So isn't it true, Ms. Duty, that
21 your office filed with the Court of Appeals a challenge
22 to the gag order? Isn't that true? That just happened
23 this week?
24 A. Yes.
25 Q. And isn't it also true that we found out very
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1 late yesterday that your petition was denied? Isn't
2 that true?
3 A. On procedural grounds, yes. So it will be
4 refiled.
5 Q. But that's not -- wait. Just so we're clear,
6 that's not what it said, though, right? It didn't
7 say --
8 A. It --
9 Q. Wait a minute. Let me be very clear.
10 Did it say it's denied on procedural
11 grounds? Because I don't remember hearing -- seeing
12 that. Is that what it said?
13 A. It cites a specific statute section, and that's
14 what that section stands for.
15 THE COURT: Have you read the order?
16 Because, no, it doesn't.
17 THE WITNESS: It cites a specific statute.
18 MR. BRUNNER: Your Honor, we're talking
19 about legal conclusions here, and we're going to have
20 lawyers arguing about what other lawyers --
21 THE COURT: Pull the order. If you want
22 to read the order, read the order.
23 MS. JERNIGAN: If I could just have a
24 moment to pull it up, Your Honor?
25 Q. (BY MR. DECK) While she's pulling it up,
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1 Ms. Duty, I mean, if you don't remember, you don't
2 remember, and that's totally fine.
3 THE COURT: I have it, if you need it.
4 MR. DECK: Okay. Do you mind if we
5 approach, Judge?
6 THE COURT: Sure.
7 Q. (BY MR. DECK) Ms. Duty, I assume that if I
8 showed you the actual order, it would jog your memory?
9 A. Well, I haven't seen it.
10 THE COURT: It does cite a rule, just so
11 you know.
12 Q. (BY MR. DECK) Okay. But you haven't seen it,
13 Ms. Duty?
14 A. No.
15 Q. Ms. Duty, did you -- just one question. You
16 haven't seen it, Ms. Duty?
17 A. I have not actually physically seen it.
18 Q. Okay. Fair enough.
19 And you just -- under sworn testimony, you
20 said that it actually states something. Where did you
21 get that information, Ms. Duty?
22 A. Mr. Webster called me yesterday afternoon --
23 yesterday afternoon when he got notice of that.
24 Q. Okay. So your impression is -- when it says,
25 "The emergency temporary relief is dismissed as moot,"
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1 your impression is that it was dismissed solely on
2 procedural grounds?
3 A. The specific rule that is cited implies that it
4 is -- there was, like, something, a box not checked or
5 something missed or something not, you know, attached;
6 that it's not an actual -- it's not -- it's not a ruling
7 on the merits.
8 MR. BRUNNER: Your Honor, it's been
9 denied. It's been denied. We know that. And so what
10 her interpretation of it is --
11 MS. JERNIGAN: She gets to be impeached.
12 THE COURT: Well, I'm not sure why --
13 where she's getting the information that she's getting,
14 but I've seen the order, and it doesn't say anything
15 like that.
16 That being said, I'm not sure why it has
17 anything to do with this at this point in time, anyway.
18 MR. BRUNNER: Thank you. I renew my
19 relevance objection, Your Honor.
20 THE COURT: That's sustained.
21 MR. DECK: Pass the witness.
22 MR. BRUNNER: No further questions.
23 THE COURT: Thank you, Ms. Duty.
24 MR. DECK: Judge, we rest.
25 THE COURT: Do you have any witnesses on
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1 for murder, and I don't expect her to think he's a great
2 guy and say great things about him.
3 So I understand that, especially in the
4 motion that's been filed by the State on the motion
5 to -- I mean, sorry -- by the Defense on the motion to
6 recuse and disqualify has a long list of allegations
7 that the Defense believes are violations of the Texas
8 Rules of Professional Conduct by Ms. Duty with regard to
9 this case and how it affects Mr. Harmel and due process
10 violations.
11 That being said, looking at -- I still
12 think under the case law, unless the Court of Criminal
13 Appeals gives us another opinion that expands that, I
14 don't think I have authority to disqualify her in this
15 case, except under very, very limited circumstances.
16 And violations, even if I believe that they were
17 violations of the Rules of Professional Conduct, I don't
18 think that gives me authority to disqualify her.
19 So I'm going to deny the Defense's motion
20 to disqualify the District Attorney's Office in this
21 case.
22 Are y'all ready to start the double
23 jeopardy issue? Okay. Let's -- go ahead, Mr. Brunner.
24 MR. BRUNNER: You saw me move, Judge.
25 We can start that. Just some procedural
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1 matters real quick, Your Honor, about some other filings
2 that we had made that I would seek rulings on, but that
3 would be very fast.
4 THE COURT: Okay. Well, let's take a
5 15-minute break. Let's start back at 11:00.
6 MR. BRUNNER: 11:00, Your Honor.
7 Thank you.
8 (Recess from 10:42 to 11:04)
9 (Open court, Defendant present)
10 THE COURT: Okay. We're back on the
11 record in Cause No. 13-0826-K277, State versus
12 Crispin Harmel.
13 We're ready to proceed on the Defense's
14 pretrial motion for writ; is that correct?
15 MR. DECK: Sure are, Judge.
16 MR. WEBSTER: Judge?
17 THE COURT: Yes.
18 MR. WEBSTER: If I can interject, prior to
19 this I filed a motion asking the Court to void the gag
20 order, and I wanted to ask the Court to either grant or
21 deny that motion.
22 THE COURT: That's denied.
23 MR. WEBSTER: That's denied? Thank you,
24 Judge.
25 THE COURT: Are you talking about voiding
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1 the one that's there or enter the new one that you
2 wanted?
3 MR. WEBSTER: My request is that you
4 void -- the first motion was to void the gag order that
5 is currently present.
6 THE COURT: Okay. And on what grounds?
7 MR. WEBSTER: I would just reassert my
8 argument that was made in that motion that was filed
9 with the Court and the Defense.
10 THE COURT: Based on you think it's
11 unconstitutional?
12 MR. WEBSTER: Yes, Your Honor.
13 THE COURT: I'm assuming you're aware of
14 the Doctrine of Estoppel?
15 MR. WEBSTER: I'm just asserting my
16 motion.
17 THE COURT: I'm assuming you're aware of
18 the Doctrine of Estoppel?
19 MR. WEBSTER: I don't believe it applies
20 in this case, Your Honor.
21 THE COURT: Really? One of the cases that
22 you gave me clearly said that you can't object to an
23 order that you agreed to be entered.
24 MR. WEBSTER: At this time we're objecting
25 to it, and we're asking you to declare it void.
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1 THE COURT: Okay. I'm going to deny that
2 motion. And my reason for denying that motion is the
3 State requested the motion; the Defense did not object
4 to that motion; I said on the record what my ruling was;
5 Mr. Brunner said, "That's great, Your Honor," agreeing
6 to the language of the order; and there was no objection
7 to it.
8 And so if y'all want to agree to vacate
9 that order, if you guys want to go yell at the media all
10 day long, you can if you want to. The only reason I
11 entered this is because that's what you wanted, and
12 nobody objected to it.
13 If you want to enter a different gag
14 order, then you need to put on evidence that meets all
15 the criteria that you wanted in the proposed gag order
16 that you filed in your other motion. But you would have
17 to present evidence that would justify those findings in
18 order to enter that particular type of order.
19 MR. WEBSTER: For the record, then, Judge,
20 I would at least like to, in a similar fashion, object
21 to your ruling and take exception to your ruling on the
22 unconstitutionality of the current gag order.
23 THE COURT: Sure.
24 MS. JERNIGAN: May I state something just
25 for the record, Judge?
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1 THE COURT: Sure.
2 MS. JERNIGAN: There's been a lot of
3 discussion about the fact that I drafted the order that
4 was at the Court's request. And just so the record is
5 clear, I didn't come up with that language on my own,
6 that's language that I found in a case that ratified a
7 gag order using that exact same language.
8 So just so the Court is clear, I didn't
9 come up with the language for the gag order. I modeled
10 it after what Your Honor asked and after reviewing case
11 law to determine the proper language.
12 THE COURT: Okay. Thank you.
13 Anything else?
14 MR. WEBSTER: Just so I'm clear, it's an
15 expressed denial of our request to void the gag order?
16 THE COURT: That is correct. If you have
17 an order that you want me to sign, I'll be glad to sign
18 it.
19 MR. WEBSTER: Thank you, Judge.
20 MR. BRUNNER: Thank you, Your Honor. We
21 have no more particular motions at this time.
22 THE COURT: Okay.
23 MR. DECK: The Defense calls Jana Duty,
24 Judge.
25 And, of course, Judge, we're going to
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1 A. Yes.
2 Q. When Mr. Harris was still working with us,
3 correct?
4 A. Yes.
5 Q. And at that time, when you were kind of
6 wrapping your brain around the case, you may or may not
7 have been using, quote, the "proper player," correct?
8 A. Correct.
9 Q. You don't recall exactly, do you?
10 A. I don't.
11 Q. When you were in trial mode and preparing
12 discrete exhibits, prepping your trial team -- which did
13 not include Mr. Harris at the time, correct, did it?
14 A. That's correct.
15 Q. When you were in trial mode, as you say, were
16 you using the correct player?
17 A. No.
18 Q. When you were in trial mode, did that
19 correspond when Mr. Deck was kind of in trial mode and
20 was really ramping up his request for, quote, "the
21 copies with the time-stamps"?
22 A. I'd say that's right.
23 Q. And at that time, you were not using the right
24 player, were you?
25 A. I was not.
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1 Q. And all along, they had, quote, "the copy with
2 the time-stamps," right?
3 A. Yes.
4 Q. To the extent that anything is encrypted,
5 hidden, whatever, on these videos, time-stamps are not
6 obvious, you didn't make them not obvious, right?
7 A. No.
8 Q. That's just how it came to us, correct?
9 A. Yes.
10 Q. And we had the same technical problem they had
11 for weeks, correct?
12 A. A lot longer than weeks. I mean, the whole
13 time that we had this case, yes.
14 Q. Persisting into the start of the trial,
15 correct?
16 A. Yes.
17 Q. To prevail on a double jeopardy motion against
18 the State, Defense has to prove that the State was
19 trying to cause -- intentionally cause a mistrial.
20 Were you intentionally trying to cause a
21 mistrial through any of your actions in this case?
22 A. Absolutely not.
23 Q. To legally prevail, they have to prove that we
24 were trying to prevent an acquittal. Were we trying to
25 prevent an acquittal, Ms. Duty? Were you at any time in
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1 STATE OF TEXAS
2 COUNTY OF WILLIAMSON
3 I, SIMONE M. WRIGHT, Official Court Reporter in and
4 for the 368th District Court of Williamson County, State
5 of Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $ and
17 was paid/will be paid by Williamson County.
18 WITNESS MY OFFICIAL HAND on this, the 8th day of
19 June, 2015.
20 /s/Simone M. Wright
21 SIMONE M. WRIGHT, CSR
Texas CSR 3266
22 Official Court Reporter
368th District Court
23 Williamson County, Texas
405 Martin Luther King, Box 8
24 Georgetown, Texas 78626
Telephone: (512) 943-1280
25 Job No. 164 Expiration: 12/31/2016
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CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE
CHAPTER 4. COURTS AND CRIMINAL JURISDICTION
Art. 4.04. COURT OF CRIMINAL APPEALS
Sec. 1. The Court of Criminal Appeals and each judge
thereof shall have, and is hereby given, the power and authority
to grant and issue and cause the issuance of writs of habeas
corpus, and, in criminal law matters, the writs of mandamus,
procedendo, prohibition, and certiorari. The court and each
judge thereof shall have, and is hereby given, the power and
authority to grant and issue and cause the issuance of such
other writs as may be necessary to protect its jurisdiction or
enforce its judgments.
Sec. 2. The Court of Criminal Appeals shall have, and is
hereby given, final appellate and review jurisdiction in
criminal cases coextensive with the limits of the state, and its
determinations shall be final. The appeal of all cases in which
the death penalty has been assessed shall be to the Court of
Criminal Appeals. In addition, the Court of Criminal Appeals
may, on its own motion, with or without a petition for such
discretionary review being filed by one of the parties, review
any decision of a court of appeals in a criminal case.
Discretionary review by the Court of Criminal Appeals is not a
matter of right, but of sound judicial discretion.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1971, 62nd Leg., p. 2536, Sec.6, eff. Aug. 30,
1971; Acts 1981, 67th Leg., p. 802, ch. 291, Sec. 103, eff.
Sept. 1, 1981.
CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE
CHAPTER 44. APPEAL AND WRIT OF ERROR
Art. 44.01. APPEAL BY STATE. (a) The state is entitled to
appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or
any portion of an indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a confession, or
an admission, if jeopardy has not attached in the case and if
the prosecuting attorney certifies to the trial court that the
appeal is not taken for the purpose of delay and that the
evidence, confession, or admission is of substantial importance
in the case; or
(6) is issued under Chapter 64.
(b) The state is entitled to appeal a sentence in a case on
the ground that the sentence is illegal.
(c) The state is entitled to appeal a ruling on a question
of law if the defendant is convicted in the case and appeals the
judgment.
(d) The prosecuting attorney may not make an appeal under
Subsection (a) or (b) of this article later than the 20th day
after the date on which the order, ruling, or sentence to be
appealed is entered by the court.
(e) The state is entitled to a stay in the proceedings
pending the disposition of an appeal under Subsection (a) or (b)
of this article.
(f) The court of appeals shall give precedence in its
docket to an appeal filed under Subsection (a) or (b) of this
article. The state shall pay all costs of appeal under
Subsection (a) or (b) of this article, other than the cost of
attorney's fees for the defendant.
(g) If the state appeals pursuant to this article and the
defendant is on bail, he shall be permitted to remain at large
on the existing bail. If the defendant is in custody, he is
entitled to reasonable bail, as provided by law, unless the
appeal is from an order which would terminate the prosecution,
in which event the defendant is entitled to release on personal
bond.
(h) The Texas Rules of Appellate Procedure apply to a
petition by the state to the Court of Criminal Appeals for
review of a decision of a court of appeals in a criminal case.
(i) In this article, "prosecuting attorney" means the
county attorney, district attorney, or criminal district
attorney who has the primary responsibility of prosecuting cases
in the court hearing the case and does not include an assistant
prosecuting attorney.
(j) Nothing in this article is to interfere with the
defendant's right to appeal under the procedures of Article
44.02 of this code. The defendant's right to appeal under
Article 44.02 may be prosecuted by the defendant where the
punishment assessed is in accordance with Subsection (a),
Section 3d, Article 42.12 of this code, as well as any other
punishment assessed in compliance with Article 44.02 of this
code.
(k) The state is entitled to appeal an order granting
relief to an applicant for a writ of habeas corpus under Article
11.072.
(l) The state is entitled to appeal an order entered
under:
(1) Subchapter G or H, Chapter 62, that exempts a
person from complying with the requirements of Chapter 62; and
(2) Subchapter I, Chapter 62, that terminates a
person's obligation to register under Chapter 62.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1981, 67th Leg., p. 812, ch. 291, Sec. 123, eff.
Sept. 1, 1981; Acts 1987, 70th Leg., ch. 382, Sec. 1; Subsec.
(a) amended by Acts 2003, 78th Leg., ch. 13, Sec. 7, eff. Sept.
1, 2003. Subsec. (k) added by Acts 2003, 78th Leg., ch. 587,
Sec. 2, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1008 (H.B. 867), Sec. 1.04, eff.
September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1038 (H.B. 1801), Sec. 2,
eff. September 1, 2007.
TEXAS RULES OF APPELLATE PROCEDURE
Section Five. Proceedings in the Court of Criminal Appeals
Rule 72. Extraordinary Matters
72.1. Leave to File
A motion for leave to file must accompany an original petition for writ of habeas
corpus, mandamus, procedendo, prohibition, certiorari, or other extraordinary writ,
or any other motion not otherwise provided for in these rules.
72.2. Disposition
If five judges tentatively believe that the case should be filed and set for
submission, the motion for leave will be granted and the case will then be handled
and disposed of in accordance with Rule 52.7. If the motion for leave is denied, no
motions for rehearing or reconsideration will be entertained. But the Court
may, on its own initiative, reconsider a denial of a motion for leave.
Notes and Comments
Comment to 1997 change: This is former Rule 211. The rule is amended to include
all the Court’s jurisdiction of extraordinary matters. Internal procedures of the
Court are deleted. Other nonsubstantive changes are made.
THE TEXAS CONSTITUTION
ARTICLE 1. BILL OF RIGHTS
That the general, great and essential principles of liberty
and free government may be recognized and established, we
declare:
Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free
and independent State, subject only to the Constitution of the
United States, and the maintenance of our free institutions and
the perpetuity of the Union depend upon the preservation of the
right of local self-government, unimpaired to all the States.
Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF
GOVERNMENT. All political power is inherent in the people, and
all free governments are founded on their authority, and
instituted for their benefit. The faith of the people of Texas
stands pledged to the preservation of a republican form of
government, and, subject to this limitation only, they have at
all times the inalienable right to alter, reform or abolish
their government in such manner as they may think expedient.
Sec. 3. EQUAL RIGHTS. All free men, when they form a
social compact, have equal rights, and no man, or set of men, is
entitled to exclusive separate public emoluments, or privileges,
but in consideration of public services.
Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law
shall not be denied or abridged because of sex, race, color,
creed, or national origin. This amendment is self-operative.
(Added Nov. 7, 1972.)
Sec. 4. RELIGIOUS TESTS. No religious test shall ever be
required as a qualification to any office, or public trust, in
this State; nor shall any one be excluded from holding office on
account of his religious sentiments, provided he acknowledge the
existence of a Supreme Being.
Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS;
OATHS AND AFFIRMATIONS. No person shall be disqualified to give
evidence in any of the Courts of this State on account of his
religious opinions, or for the want of any religious belief, but
all oaths or affirmations shall be administered in the mode most
binding upon the conscience, and shall be taken subject to the
pains and penalties of perjury.
Sec. 6. FREEDOM OF WORSHIP. All men have a natural and
indefeasible right to worship Almighty God according to the
dictates of their own consciences. No man shall be compelled to
attend, erect or support any place of worship, or to maintain
any ministry against his consent. No human authority ought, in
any case whatever, to control or interfere with the rights of
conscience in matters of religion, and no preference shall ever
be given by law to any religious society or mode of worship.
But it shall be the duty of the Legislature to pass such laws as
may be necessary to protect equally every religious denomination
in the peaceable enjoyment of its own mode of public worship.
Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money
shall be appropriated, or drawn from the Treasury for the
benefit of any sect, or religious society, theological or
religious seminary; nor shall property belonging to the State be
appropriated for any such purposes.
Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person
shall be at liberty to speak, write or publish his opinions on
any subject, being responsible for the abuse of that privilege;
and no law shall ever be passed curtailing the liberty of speech
or of the press. In prosecutions for the publication of papers,
investigating the conduct of officers, or men in public
capacity, or when the matter published is proper for public
information, the truth thereof may be given in evidence. And in
all indictments for libels, the jury shall have the right to
determine the law and the facts, under the direction of the
court, as in other cases.
THE TEXAS CONSTITUTION
ARTICLE 5. JUDICIAL DEPARTMENT
Sec. 5. JURISDICTION OF COURT OF CRIMINAL APPEALS; TERMS
OF COURT; CLERK. (a) The Court of Criminal Appeals shall have
final appellate jurisdiction coextensive with the limits of the
state, and its determinations shall be final, in all criminal
cases of whatever grade, with such exceptions and under such
regulations as may be provided in this Constitution or as
prescribed by law.
(b) The appeal of all cases in which the death penalty has
been assessed shall be to the Court of Criminal Appeals. The
appeal of all other criminal cases shall be to the Courts of
Appeal as prescribed by law. In addition, the Court of Criminal
Appeals may, on its own motion, review a decision of a Court of
Appeals in a criminal case as provided by law. Discretionary
review by the Court of Criminal Appeals is not a matter of
right, but of sound judicial discretion.
(c) Subject to such regulations as may be prescribed by
law, the Court of Criminal Appeals and the Judges thereof shall
have the power to issue the writ of habeas corpus, and, in
criminal law matters, the writs of mandamus, procedendo,
prohibition, and certiorari. The Court and the Judges thereof
shall have the power to issue such other writs as may be
necessary to protect its jurisdiction or enforce its judgments.
The court shall have the power upon affidavit or otherwise to
ascertain such matters of fact as may be necessary to the
exercise of its jurisdiction. (Amended Aug. 11, 1891, Nov. 8,
1966, Nov. 8, 1977, Nov. 4, 1980, and Nov. 6, 2001.)
(TEMPORARY TRANSITION PROVISION for Sec. 5: See Appendix, Note
3.)
UNITED STATES CONSTITUTION
FIRST AMENDMENT
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for
a redress of grievances.