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

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 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 [email protected] [email protected] 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 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 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 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 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 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 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 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.).

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 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 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.

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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 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 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 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.

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 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.

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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.

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,

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 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. 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

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). 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

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.

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-

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 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 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 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.

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.

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 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 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 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

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. 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 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.

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 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.”).

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 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- (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 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 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.

Respectfully submitted, /s/ J. Woodfin Jones J. Woodfin Jones State Bar No. 10911700 ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP Congress Avenue, Suite 2350 Austin, Texas 78701 Telephone: (512) 482-9300 Facsimile: (512) 482-9303 [email protected]

/s/ Brent Webster_________________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 [email protected]

/s/ Eric Gutierrez__________ Eric Gutierrez State Bar No. 24089267 Special Prosecutor Williamson County, Texas MLK Street, #1 Georgetown, Texas 78626

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 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 [email protected]

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 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 [email protected]

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 [email protected] and to the Real Party in Interest’s attorneys of record, Kristen Jernigan, 207 S. Austin Ave., Georgetown, Texas 78626 at [email protected], Ryan Deck, 107 N.

Lampasas, Round Rock, Texas 78664 at [email protected], and R. Scott Magee, 107 N. Lampasas, Round Rock, Texas 78664 at [email protected].

/s/ Brent Webster___________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 [email protected]

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 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 [email protected] [email protected] 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 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 [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 2 APPEARANCES Ms. Jana Duty SBOT NO. 24000244 -and- Mr. Mark Brunner SBOT NO. 24006917 -and- Mr. Brent Edward Webster SBOT NO. 24053545 Williamson County District Attorney Martin Luther King Suite 1 Georgetown, Texas 78626 Telephone: (512) 943-1234 COUNSEL FOR THE STATE Ms. Kristen Jernigan SBOT NO. 90001898 Law Office of Kristen Jernigan 2007 South Austin Avenue Georgetown, Texas 78626 Telephone: (512) 904-0123 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Ryan Herbert Deck SBOT NO. 24040781 The Office of Ryan Deck N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 251-8920 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 R. Scott Magee, Attorney At Law N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 983-1675 E-mail: [email protected] COUNSEL FOR THE DEFENSE

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 3 VOLUME 1 Status Hearing March 20, 2015 PAGE VOL.

Reporter's Certificate ...........................32 1

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 24 MR. BRUNNER: I just figured it's the same issue on both sides, Your Honor.

THE COURT: I agree.

MR. BRUNNER: Last, Your Honor, and I'm sure everyone is happy to hear me say that, as they always are when I'm in court standing up, is the issue of -- of the gag order. I think this is -- you know, we had a motion filed by the State this week, and then, you know, here it is 15 days before trial, they file a motion, and then the first impulse is -- filing a motion, wonderful. They are entitled to a defense.

Mr. Harmel is entitled to a defense -- a vigorous defense. They're not required to lay over and let us steamroll them; however, the first impulse being, right after it's filed, let's call a press -- issue a press release.

That is fraught with peril because it puts us in this position of we either don't respond and let it sit there or respond. If I over-respond or someone else over-responds, then, you know, they may be facing -- just talking hypothetically here, not talking about this crew -- hypothetically, someone says the wrong thing to the press, if they're the Defense, the worst that can happen to them is maybe an ethical violation and maybe a chewing out by the Judge.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 25 The worst thing that can happen to the State, if we start over-talking to the press, is a mistrial with prejudice, prosecutorial misconduct.

That's basically a gun to our heads.

And so when talking to the press, the press has a job to do, and they do headlines like they had this week in court, quote, "Prosecutor lied about evidence" 12 days before trial, you know -- THE COURT: That was a headline in the paper?

MR. BRUNNER: Yes, Your Honor.

THE COURT: American Statesman?

MR. BRUNNER: Yes, Your Honor.

MS. DUTY: Yes.

THE COURT: I saw you guys on TV I guess two days ago -- or two nights ago, which tells me that the press was notified pretty quickly, since they were here, I think, within an hour of the time it was filed.

MR. BRUNNER: Your Honor, that's how I heard about this, not from Defense counsel. Maybe they sent me an e-mail and I wasn't watching, but I heard it from the press first.

THE COURT: Okay.

MR. BRUNNER: And, Your Honor, it's just we don't want to turn this into -- we can't control the

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 26 press. You can't control the press, we can't, Defense can't. You can control our actions, but I don't want this to turn into a dual of who can say what, snakily, to the press.

We can have a situation where, you know, someone walks up to, let's say, hypothetically, Mr. Deck, or another member of the Defense team: Ryan, do you like Slurpees? Do you prefer Slurpees, or do you like -- do you like Icees? Slurpees or Icees?

Mr. Deck may say, You know what? I prefer Icees.

To have someone overhear that -- MR. MAGEE: Your Honor, I'm going to object to this. We're having a hearing.

MR. BRUNNER: This is -- no. No. THE COURT: Go ahead. Go ahead.

MR. BRUNNER: And they said, I heard Mr. Deck said he likes ISIS.

And so the headline is -- they file an affidavit and the headline is, quote, "? Defense attorney supports Jihad terrorists?" How is he going to respond to that? He's going to pick up the phone and tell the media, That's bunk.

Okay? Just as, you know, if -- my first

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 27 impulse when the headline is "Prosecutor lies about evidence" is to pick up the phone and say, That's wrong.

And if one of us says the wrong thing, we are jeopardizing the flow of the trial.

So what I'm asking for, Your Honor, is if we can just stop this -- THE COURT: How restrictive of a gag order do you want?

MR. MAGEE: Well, Your Honor, that's it; is there a legal standard we're addressing here?

Because I've never heard -- I haven't heard anything.

What are we talking about? I mean, that's all very entertaining.

MR. BRUNNER: I'm talking about a gag order.

MR. MAGEE: That's all very entertaining and comical, and I get that. But we sent out a press release, and we take our queues from -- you know, the State sends out press releases all the time. I don't hear them complaining about press releases then.

So, you know, with us, we're just making sure what we give out is very careful. That's why we did a press release, because we wanted to be careful.

That's all very entertaining, but what legal standard are we addressing here?

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 28 MR. BRUNNER: Your Honor, you have control over the flow of information from this court, and you have the authority to order the parties to not discuss this case with the media, to not make any postings with the media. I'm not looking for sanctions or ribbing them, Your Honor, for doing what they did.

THE COURT: Okay. Let me do this. Looks like we have another issue to take up on the 31st. But what I can do between now and then is, let's not have any discussions with the media until the 31st. And if you want to present a whole big, giant issue about what type of a gag order, how restrictive it needs to be, I'm fine with dealing with that.

I can understand -- I have some problems with that headline. That being said, I don't know where the person got the headline. And, I agree, I know how the media is, they're going to do whatever they can do to sell newspapers or get on the news.

So I have some concerns with that particular headline, if that's all it said. I mean, if it said, "Defense claims based on the motion" -- I can understand if they quoted something that was in the motion that was filed. That's a little different than "State withholds evidence." And I think it's very important, and I

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 29 think we addressed this a little bit at the last trial -- on the mistrial, is because of the history of Williamson County, people are looking at this county I guess much more severely than they might some other counties just because of the things that have gone on over the last several years. And so we do need to be careful with that, and I don't think it's appropriate that derogatory comments are made about other attorneys involved in cases, including this one, but any case, to tell you the truth. And so we need to make sure that that's -- that everybody stays within those ethical guidelines.

But at this point in time, let's not have any conversations or discussions with the media, and on the 31st of March, we will deal with that issue and see if we need to have some kind of permanent order dealing with that restriction. Anything else today?

MR. MAGEE: Not from the Defense, Your Honor.

MR. BRUNNER: (Shakes head.)

THE COURT: Okay. Now, next question is, based on all these new things that we have to deal with, are we going to be able to do this in a day, or do we need to go into the next day? And it doesn't matter if we do.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 30 MS. JERNIGAN: I still think we can probably get it done in a day.

THE COURT: Okay. And my concern is, if we don't, we will be into April Fools' Day.

Mr. Brunner, I know that's an issue.

MR. BRUNNER: Just another day for me, Your Honor. It's not a Holy Day of Obligation or anything, even in my household. Your Honor, it's -- no.

I'm very confident we can get this all resolved in one day.

THE COURT: Okay. Good deal.

MR. BRUNNER: And I literally didn't see in the red file -- in the -- sorry, not in the red file, but in the clerk's summary on the computer that Ms. Jernigan was appointed. Trust me, I looked for it.

It wasn't there, or at least I didn't see it. So I wasn't trying to mischaracterize that she wasn't appointed by the Court.

THE COURT: No. I'm fine with that. I remembered that she was.

MR. MAGEE: It was an Ake motion, which is permitted by law. And so now, here we are. It's under Ake Motions of Oklahoma.

MR. BRUNNER: Okay. I just thought she was volunteering out of the charity of her heart.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 31 THE COURT: She's like that.

MR. BRUNNER: Yeah. That's fine. Good to know. Okay.

THE COURT: Okay. Thank y'all.

MR. BRUNNER: Thank you, Your Honor.

THE COURT: Anything comes up between now and then, let me know.

MR. MAGEE: Thank you, Your Honor. (2:31 p.m.)

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

654e9fa7-9753-473c-81ee-4b4a97b06fdd State v. Harmel 13-0826-K277 3/20/2015

Page 32 STATE OF TEXAS COUNTY OF WILLIAMSON I, SIMONE M. WRIGHT, Official Court Reporter in and for the 368th District Court of Williamson County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $121.60 and was paid/will be paid by Williamson County.

WITNESS MY OFFICIAL HAND on this, the 26th day of May, 2015. /s/Simone M. Wright___ SIMONE M. WRIGHT, CSR Texas CSR 3266 Official Court Reporter 368th District Court Williamson County, Texas Martin Luther King, Box 8 Georgetown, Texas 78626 Telephone: (512) 943-1280 Job No. 161 Expiration: 12/31/2016

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

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 [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 2 APPEARANCES Ms. Jana Duty SBOT NO. 24000244 -and- Mr. Mark Brunner SBOT NO. 24006917 Williamson County District Attorney Martin Luther King Suite 1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Counsel for the State

Ms. Kristen Jernigan SBOT NO. 90001898 Law Office of Kristen Jernigan 2007 South Austin Avenue Georgetown, Texas 78626 Telephone: (512) 904-0123 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Ryan Herbert Deck SBOT NO. 24040781 The Office of Ryan Deck N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 251-8920 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 R. Scott Magee, Attorney At Law N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 983-1675 E-mail: [email protected] COUNSEL FOR THE DEFENSE

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 3 VOLUME 1 Pretrial Hearing March 31, 2015 PAGE VOL.

Announcements .....................................4 1 Ruling on Motion to Disqualify Defense Counsel 11 1 Ruling (RESERVED) on Motion to Disqualify DA .....67 1 Ruling on Motion to Preserve Evidence ............73 1 Gag Order Issued .................................74 1 Adjournment .....................................76 1 Reporter's Certificate ...........................77 1

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 74 bring it up on the 7th.

THE COURT: That's fine. Okay. If it doesn't -- isn't a problem, then turn it over by tomorrow.

MR. BRUNNER: Right, Your Honor. If there's any problems, we'll come to you, all of us.

THE COURT: The next issue is the gag order. Is anyone opposed to a gag order?

MS. JERNIGAN: We're not, Judge.

MS. DUTY: No. MR. BRUNNER: Not at all.

THE COURT: Oh, good. That makes it easy.

Okay. So -- MR. BRUNNER: We'll do one thing easy for you, Your Honor.

THE COURT: That's true. At one point -- so what we're doing from this point forward, then, no one should talk to the media about this case for any reason. That also means don't post anything on Facebook or any of those other social media outlets.

MR. DECK: Judge, the one thing I would say is sometimes we do post updates to our own Listserv, the defense attorney Listserv, just do updates amongst lawyers. We've done that. I assume that's not a problem?

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 75 MR. BRUNNER: Your Honor, that's -- THE COURT: And I'm assuming that's accessible to the public in general?

MS. JERNIGAN: No. MR. DECK: Just like what happened today, what's in public, what everyone saw today, not every lawyer was here, they ask for updates, and we say, Hey, this is what happened.

MR. BRUNNER: Your Honor, that's -- THE COURT: I'd rather not.

MR. BRUNNER: That's a backdoor way of just getting information out. I'm not saying that that's bad intent from State -- I mean, from Defense -- old habits die hard; excuse me, gentlemen -- but just it's spreading word that can just be dropped right out to the world.

MR. MAGEE: Well, and, likewise, I don't think you should be able to send your employees to go talk to the media, either, you know.

THE COURT: Well, I agree. When I say this, this applies to your employees, anyone else you have hired, it applies to the DA's Office and anybody that's hired or with the DA's Office. And that solves the problem; nobody is talking to the media, then we don't have to worry about it. Okay?

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 76 Someone draft me an order.

MR. BRUNNER: Sounds good, Judge.

THE COURT: Ms. Jernigan, you draft that order.

MS. JERNIGAN: I'll take care of that, Your Honor.

THE COURT: Okay. And so at this point in time, then, we'll come back on the 7th, I'll review all the cases that have been presented and any briefs by April 6th -- is that right? Yeah -- April 6th, and then we'll be back here on the 7th at 9:00 to decide what else is going to happen.

Okay. Thank y'all. (Proceedings adjourned, 11:01 a.m.)

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0826-K277 3/31/2015

Page 77 STATE OF TEXAS COUNTY OF WILLIAMSON I, SIMONE M. WRIGHT, Official Court Reporter in and for the 368th District Court of Williamson County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $324.00 and was paid/will be paid by The State.

WITNESS MY OFFICIAL HAND on this, the 4th day of April, 2015. /s/Simone M. Wright SIMONE M. WRIGHT, CSR Texas CSR 3266 Official Court Reporter 368th District Court Williamson County, Texas Martin Luther King, Box 8 Georgetown, Texas 78626 Telephone: (512) 943-1280 Job No. 149 Expiration: 12/31/2016

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

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 [email protected]

340dd04f-b37a-42f8-9b5f-53e02b9b2f76 State v. Harmel 13-0827-K277 4/8/2015

Page 2 APPEARANCES Ms. Jana Duty SBOT NO. 24000244 -and- Mr. Mark Brunner SBOT NO. 24006917 -and- Mr. Brent Edward Webster SBOT NO. 24053545 Williamson County District Attorney Martin Luther King Suite 1 Georgetown, Texas 78626 Telephone: (512) 943-1234 COUNSEL FOR THE STATE Ms. Kristen Jernigan SBOT NO. 90001898 Law Office of Kristen Jernigan 2007 South Austin Avenue Georgetown, Texas 78626 Telephone: (512) 904-0123 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Ryan Herbert Deck SBOT NO. 24040781 The Office of Ryan Deck N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 251-8920 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 R. Scott Magee, Attorney At Law N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 983-1675 E-mail: [email protected] COUNSEL FOR THE DEFENSE

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

340dd04f-b37a-42f8-9b5f-53e02b9b2f76 State v. Harmel 13-0827-K277 4/8/2015

Page 3 VOLUME 1 Pretrial Hearing April 8, 2015 PAGE VOL.

Announcements .....................................4 1 Argument by Ms. Jernigan ..........................5 1 Argument by Mr. Brunner ..........................14 1 Argument by Mr. Webster ..........................28 1 Argument by Ms. Duty .............................54 1 Court's Ruling ...................................76 1 Instruction to John Prezas .......................89 1 Instruction that gag order remain in place .......89 1 Adjournment .....................................89 1 Reporter's Certificate ...........................90 1

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

340dd04f-b37a-42f8-9b5f-53e02b9b2f76 State v. Harmel 13-0827-K277 4/8/2015

Page 89 From this point forward, I guess until the 13th, Mr. Prezas, you're still off this case.

MR. BRUNNER: Your Honor, the gag order is still in effect?

THE COURT: Yes.

MR. BRUNNER: Thank you, Your Honor.

THE COURT: I never got an order.

MR. BRUNNER: You said it.

THE COURT: I know, but I don't have a written order.

Thank y'all. (Proceedings adjourned, 3:46 p.m.)

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

340dd04f-b37a-42f8-9b5f-53e02b9b2f76 State v. Harmel 13-0827-K277 4/8/2015

Page 90 STATE OF TEXAS COUNTY OF WILLIAMSON I, SIMONE M. WRIGHT, Official Court Reporter in and for the 368th District Court of Williamson County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $342.00 and was paid/will be paid by Williamson County.

WITNESS MY OFFICIAL HAND on this, the 10th day of April, 2015. /s/Simone M. Wright SIMONE M. WRIGHT, CSR Texas CSR 3266 Official Court Reporter 368th District Court Williamson County, Texas Martin Luther King, Box 8 Georgetown, Texas 78626 Telephone: (512) 943-1280 Job No. 150 Expiration: 12/31/2016

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected]

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 [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 2 APPEARANCES Ms. Jana Duty (NOT PRESENT) SBOT NO. 24000244 -and- Mr. Mark Brunner SBOT NO. 24006917 -and- Mr. Brent Edward Webster SBOT NO. 24053545 Williamson County District Attorney Martin Luther King Suite 1 Georgetown, Texas 78626 Telephone: (512) 943-1234 COUNSEL FOR THE STATE Ms. Kristen Jernigan SBOT NO. 90001898 Law Office of Kristen Jernigan 2007 South Austin Avenue Georgetown, Texas 78626 Telephone: (512) 904-0123 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Ryan Herbert Deck SBOT NO. 24040781 The Office of Ryan Deck N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 251-8920 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 R. Scott Magee, Attorney At Law N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 983-1675 E-mail: [email protected] COUNSEL FOR THE DEFENSE

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 3 VOLUME 1 Contempt of Court May 8, 2015 PAGE VOL.

Judge finds Ms. Duty in contempt of court ........11 1 Adjournment .....................................16 1 Reporter's Certificate ...........................17 1

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 4 (Open court, 10:41 a.m.)

THE COURT: Okay. I'm going to call this under the Harmel case number only because I don't have another case number to call it under right now. It's Cause No. 13-0826-K277, State of Texas versus Crispin Harmel. Where is Ms. Duty?

MR. BRUNNER: The State's here, Your Honor.

THE COURT: Where is Ms. Duty? That's the question I asked you. I need an answer.

MR. BRUNNER: I don't know. She's not -- THE COURT: Really? Because she sent me an e-mail yesterday that said she would clear her schedule and be here at any time of the day that we schedule it. I sent an e-mail to all counsel, including Ms. Duty, to be here at 10:30. Where is she?

MR. BRUNNER: She's not in this room.

THE COURT: Okay. Then here's what we're going to do. We're not going to have this little proceeding right now. What we're going to do -- I have two options: You can get ahold of her and you can get her here, or I will issue a capias and I will get her here. Which do you prefer?

MR. BRUNNER: I'll try to get ahold of her, Your Honor.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 5 THE COURT: Get on it.

MR. BRUNNER: Can you tell me what this hearing is for?

THE COURT: Do what?

MR. BRUNNER: Can you tell me what this hearing is for?

THE COURT: You'll know when she shows up.

MR. BRUNNER: Okay. Thank you, Your Honor. (Recess from 10:42 to 11:09) (Open court) THE COURT: We're back on the record.

Mr. Brunner, were you able to contact Ms. Duty?

MR. BRUNNER: I was, Your Honor.

THE COURT: And?

MR. BRUNNER: I let her know what you said earlier and that her presence was requested in court.

She said that she didn't -- she didn't think the e-mail said that she would for sure be here, that she was trying to clear her schedule, that she didn't know -- not knowing what this hearing was about, she didn't -- she said words to the effect of, you know, "If the Court is not going to give me the respect to let me know what this is about, there's no need to be there." The State is going to be represented by us.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 6 THE COURT: So bottom line is, she's not coming?

MR. BRUNNER: I don't know that, Judge.

THE COURT: Okay. Well, we're starting, and she's not here.

MR. BRUNNER: Okay.

THE COURT: Okay. For the record, yesterday afternoon, I sent an e-mail to all counsel -- and sorry, Ms. Jernigan, you weren't involved with kind of everything that was going on, and I forgot to put you on the list, although I assumed that you would be notified -- that indicated that I was trying to get everyone to come in on Monday. However, I understood that Ms. Duty was going to be out of town on Monday for a funeral or something. And so I didn't want to wait till the end of next week, and so I requested that we do this today.

I received responses back. The defense indicated they were available after 10:00. Ms. Duty sent me an e-mail at 5:51 p.m. stating that she would be glad to rearrange her schedule for today. However, she would like some notice as to what it was about.

I indicated at the time that I didn't think it would take more than 10 or 15 minutes for the hearing -- that was in the first e-mail -- but it was

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 7 pretty clear that I needed all counsel here today.

I responded to that e-mail, including everyone, that said to meet in my courtroom at 10:30 a.m. this morning.

The reason that we were here today, and it doesn't really have anything to do with the murder trial, per se, as far as facts or discovery or forensics or any of this other mess. What we're here today to do is to address some issues that I think have come to a head this week regarding the disrespect to fellow attorneys and to the Court that I have observed.

When I started back in November of 2013, I expected some testing, being a new judge. And initially, there was some conduct that I felt was a little over the line. But, unfortunately, it's gotten worse since that point in time.

Now I think it's to the point that we need to get something -- that we need to do something about it. And I will tell you, this comes both from the DA's office as well as from the criminal defense bar, and also, to some extent, from the civil and the family law bar, although not as much because they're really not in court as much as the others.

I will tell you, Mr. Brunner -- and this obviously needs to go to Ms. Duty, as well -- that

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 8 respect flows downhill. In the DA's office, the employees and the assistant DAs will follow the lead of Ms. Duty as the elected DA and you as the first assistant. If you don't show respect for the other attorneys or the Court, then neither will your staff or the other attorneys that work in your office. And I don't want you to think I'm just picking on the DA's office. Because even though it seems to be more prevalent there, at least in the last months or so, Mr. Magee, you were way out of line earlier this week in the way that you dealt with Mr. Webster. I understand that you have extended an apology to Mr. Webster, and you also apologized to the Court. And I appreciate that, but we never should have ever gotten to that point.

To me, this case has gotten completely out of hand. It seems that all the attorneys want to make this some personal game among the lawyers, and that's not what it is. This is a case about the DA trying to put together evidence in their case to prosecute and convict a guy that they believe committed murder. From the defense side, it's about trying to get a fair trial for Mr. Harmel and do whatever they can to present the best defense possible and get an acquittal for their client. That's what you're here to do. It's not about

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 9 the lawyers.

The family and friends of the victim in this case don't care if you like each other. The defendant's family doesn't care if you like each other.

But they do care when the conduct jeopardizes the integrity of the court proceedings and it takes away from what this case is really about.

Everybody at some point in their career, when they try cases, gets involved in a case that becomes somewhat personal, for whatever reason that may be. However, as attorneys, you can't let that dictate how you deal with each other, you can't allow that to cause you to act disrespectful to each other, and definitely can't allow that to cause you to fail to follow the proper protocol in court.

As attorneys, you are held to a higher standard. Your clients expect it, the other lawyers expect it, the State Bar expects it, and I expect it.

The main reason we ended up here today is, back a few weeks ago, actually, on April 9th, 2015, when we were here in court, Mr. Brunner, you asked and made a request from the Court that a gag order be put in place, and the defense actually agreed to it. I signed that order on April 9th, 2015 that states, "The parties, attorneys, and employees of the attorneys in this case

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 10 are prohibited from communicating with the press/media regarding this case or publicly commenting on this case during the pendency of the proceedings." Unfortunately, there's been a violation of that court order. And Ms. Duty on Wednesday of this week sent me an e-mail indicating that she intended to violate that order by contacting the Austin American-Statesman to, quote, "defend" herself regarding an article that had something to do with the pleadings that were filed by the defense in this case.

I kind of hoped that she would think a little better of that and not follow through with it, but yesterday I received a copy of an article by, I think, Ms. Osborne with the American-Statesman that appears to have several quotes from Ms. Duty about the case and about the filings that were made by the defense.

This is in direct violation of the order that was put into place. And, unfortunately, it was put in place at the State's request. And, yet, even though they got what they wanted, they continued to violate that order.

I generally probably wouldn't have thought much of it, other than to admonish the attorneys to comply with the court order, but it's not this one

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 11 instance. In the last several months there's been multiple incidences about disrespect to the Court, one in particular about what appears to be a misrepresentation to another district judge about the status of contact with witnesses -- I'm sorry -- with victims that may very well have affected the plea or the sentence in that case. And now I've got a direct violation of the court order from the elected DA.

So that's one of the reasons why I needed -- or wanted Ms. Duty here. I don't think I necessarily have to have her here, that's why we're proceeding forward today. And so I believe that Ms. Duty's conduct constitutes contempt of court, and it's a direct violation of the Court's orders.

And my understanding -- I've looked at a couple different things, and the procedure, I understand, is a little different, depending on how you look at it. One procedure is, Judge Stubblefield would need to appoint a judge to review the contempt issue, a special prosecutor would have to be appointed, and then a hearing would be held to determine whether or not Ms. Duty's conduct would be considered in contempt of court, and then a punishment would be assessed.

The other option indicates that I would need to go ahead and make a finding of contempt and

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 12 issue a punishment and then, if Ms. Duty wanted to contest that, then that process would go into place and a judge and a special prosecutor would be appointed.

Because Ms. Duty is not here, that probably doesn't matter. So at this point, what I'm going to do is, I do find that her conduct was in violation of -- direct violation of a court order by violating the April 9th, 2015 order prohibiting contact with the press or the media. And because of that, I will submit an affidavit and I will talk to Judge Stubblefield and we will get the proper procedure started, and appropriate notice will be sent to everyone involved.

It's unfortunate that we've come to this.

You know, I've been a judge for, what, a year and a half, a little over that, and I really never thought that there would be an issue to come up to where I would have to deal with contempt of an attorney, especially an elected official. But, unfortunately, I don't see any other choice. The fact that she's not here today kind of tells me that I'm doing the right thing because she doesn't believe and doesn't respect the Court or the other attorneys involved that I -- from what I can tell -- although, I will say that a lot of -- she's acted a little more civilly than a lot of people have in

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 13 this case. But the fact that she's not here tells me that she has no respect for this Court. And so she can deal with that in another proceeding at another time.

I hope that people can learn a lesson, that you guys can act respectfully to each other, respectful to the Court, and just act like lawyers.

We're adjourned.

MR. BRUNNER: Your Honor, if I may, off the record or on the record?

THE COURT: I don't really need a response. But if you really think you have to, go ahead.

MR. BRUNNER: Well, if I didn't think I had to, I wouldn't be talking right now, Your Honor.

MR. MAGEE: Are we on the record?

THE COURT: Yes, we're on the record.

MR. BRUNNER: Just a clarification, because I have to relay this to someone who is not in the room right now. Was this a finding of contempt, Your Honor?

THE COURT: That's the question. I've found two different procedures: One indicated that I need to submit an affidavit with a different judge to review. If that judge felt that there was sufficient grounds, I guess, to hold a hearing, that judge would

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 14 then issue a show cause order -- MR. BRUNNER: Correct.

THE COURT: -- and a hearing would be held.

MR. BRUNNER: Correct.

THE COURT: I've also seen other procedures where it says I actually need to make a finding of contempt and issue a punishment. And then at that point, if Ms. Duty wanted to appeal that or contest that, then that procedure would go into place and a judge would be appointed and a special prosecutor would be appointed and they would go through that procedure at that point in time.

MR. BRUNNER: Your Honor, I'm not trying to say my research trumps yours, but based on my short research on this issue, I think the first path may be the more legally safer path.

THE COURT: And you may be correct. And that's kind of what my plan is at this point in time, primarily because Ms. Duty is not here.

MR. BRUNNER: Okay.

THE COURT: And I will prepare an affidavit, I will talk to Judge Stubblefield, we'll get a judge appointed, and then a hearing at some point in time will be conducted and that judge can deal with it.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 15 It's not my issue at that point.

MR. BRUNNER: Your Honor, just while we've got everybody here, I think the -- the spirit of the gag order was to not just start leaking prejudicial information all over the place and to -- I think Ms. Duty's frustrations stem from the fact of using pleadings as a de facto way to just kind of like -- instead of file for a motion for continuance, it's yet another: "Oh, my gosh, we've just uncovered yet another vast conspiracy. Won't they please stop doing this.

P.S. We need a continuance." And after a while that gets a little old, and I understand her frustration.

THE COURT: And I understand her frustration, as well. You know what the answer is? The answer is, file a responsive pleading. Okay?

MR. BRUNNER: Agreed, Your Honor.

THE COURT: You file a responsive pleading, she can say all the same stuff that she wants to say to respond to whatever they've got there, and then you're not in violation of the court order.

MR. BRUNNER: Gotcha, Your Honor.

THE COURT: It really seems pretty simple.

MR. BRUNNER: Great. Thank you, Your Honor.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 16 THE COURT: Okay. (Proceedings adjourned, 11:21 a.m.)

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State v. Harmel 13-0826-K277 5/8/2015

Page 17 STATE OF TEXAS COUNTY OF WILLIAMSON I, SIMONE M. WRIGHT, Official Court Reporter in and for the 368th District Court of Williamson County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $75.00 and was paid/will be paid by Williamson County.

WITNESS MY OFFICIAL HAND on this, the 15th day of May, 2015. /s/Simone M. Wright SIMONE M. WRIGHT, CSR Texas CSR 3266 Official Court Reporter 368th District Court Williamson County, Texas Martin Luther King, Box 8 Georgetown, Texas 78626 Telephone: (512) 943-1280 Job No. 160 Expiration: 12/31/2016

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court [email protected] dc2526fa-e518-4c6c-9a88-334dfdcc01e1 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.

APPEARANCES Ms. Jana Duty SBOT NO. 24000244 -and- Mr. Mark Brunner SBOT NO. 24006917 -and- Mr. Brent Edward Webster SBOT NO. 24053545 Williamson County District Attorney Martin Luther King Suite 1 Georgetown, Texas 78626 Telephone: (512) 943-1234 COUNSEL FOR THE STATE Ms. Kristen Jernigan SBOT NO. 90001898 Law Office of Kristen Jernigan 2007 South Austin Avenue Georgetown, Texas 78626 Telephone: (512) 904-0123 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Ryan Herbert Deck SBOT NO. 24040781 The Office of Ryan Deck N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 251-8920 E-mail: [email protected] COUNSEL FOR THE DEFENSE Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 R. Scott Magee, Attorney At Law N. Lampasas Street Round Rock, Texas 78664 Telephone: (512) 983-1675 E-mail: [email protected] COUNSEL FOR THE DEFENSE

VOLUME 1 Hearing on Motion to Recuse/Disqualify DA's Office and Hearing on Writ of Habeas Corpus/Double Jeopardy

May 29, 2015 PAGE VOL.

Announcements .....................................6 1 Argument by Defense on Recusal/Disqualification ...7 1 Argument by State on Recusal/Disqualification ....12 1 Rule Invoked .....................................17 1 DEFENSE WITNESSES (ON RECUSAL/DISQUALIFICATION): Jana Duty Direct Cross V.Dire By Mr. Deck 25 v1 By Mr. Brunner 66 v1 By Mr. Deck 75 v1 Defense rests on Recusal/Disqualification .......83 1 STATE'S WITNESSES (ON RECUSAL/DISQUALIFICATION): Rod Henegar Direct Cross V.Dire By Mr. Brunner 84 v1 By Mr. Magee 86 v1 State rests on Recusal/Disqualification .........89 1 Closings Wavied (on Recusal/Disqualification) ....90 1 Court's Ruling ...................................90 1

(continued)

Rule Invoked .....................................98 1 DEFENSE WITNESSES (ON DOUBLE JEOPARDY WRIT): Jana Duty Direct Cross V.Dire By Mr. Deck 100 v1 By Mr. Brunner 178 v1 By Mr. Deck 217 v1 By Mr. Brunner 227 v1 Detective Pando Direct Cross V.Dire By Mr. Deck 232 v1 By Mr. Brunner 250 v1 By Mr. Deck 257 v1 By Mr. Brunner 262 v1 By Mr. Deck 264 v1 By Mr. Brunner 270 v1 Detective Bond Direct Cross V.Dire By Mr. Deck 271 v1 By Mr. Brunner 288 v1 By Mr. Deck 299 v1 Adjournment ....................................307 1 Reporter's Certificate ..........................308 1

ALPHABETICAL INDEX OF WITNESSES Direct Cross V.Dire Bond, Detective Larry 271 v1 288 v1 v1 Duty, Jana 25 v1 66 v1 v1 178 v1 Duty, Jana 100 v1 227 v1 v1 Henegar, Rodney Carroll 84 v1 86 v1 Pando, Detective Ricky 232 v1 250 v1 v1 262 v1 v1 270 v1

EXHIBITS OFFERED BY THE STATE EXHIBIT DESCRIPTION OFFERED ADMITTED 1 Handwritten notes by 187 v1 187 v1 Jana Duty 2 Victim/Suspect 263 v1 263 v1 Timeline created by Detective Pando

EXHIBITS OFFERED BY THE DEFENSE EXHIBIT DESCRIPTION OFFERED ADMITTED 1 DVD - KXAN Video 24 v1 24 v1

A. Probably Brent and I spoke at some point, maybe, about some issues. My husband -- Q. (BY MR. DECK) Did you ever -- did you ever speak to any of the detectives in this case regarding your testimony?

A. As it relates to my computer and what was found on my computer, yeah, we talked about that.

THE COURT: Before we keep going, the testimony right now, my understanding, is going to be limited just to the recusal issue, correct, the disqualification?

MR. DECK: Correct.

THE COURT: Not the double jeopardy issue.

MR. DECK: Fair enough, Judge. I'll move along.

MR. BRUNNER: Thank you, Your Honor.

Q. (BY MR. DECK) Ms. Duty, I'm going to ask you about the alleged violation of the gag order. And I'm sure you're aware of that, yes?

A. Yes.

Q. On April 9th of this year, the judge, Judge Kennon, entered an order that -- MR. BRUNNER: May we approach, Your Honor?

THE COURT: Yes. (Bench conference on the record)

MR. BRUNNER: She is subject to criminal contempt.

THE COURT: I know that. I was about to do this -- MR. BRUNNER: This is not proper. Sorry.

THE COURT: Well, they can ask, and you can warn Ms. Duty about her right to testify or not to testify and plead the Fifth Amendment. It's her decision.

MR. BRUNNER: Okay.

THE COURT: I mean, I don't know what else to do with that.

MR. DECK: That's fine.

MR. BRUNNER: I don't want to -- if that's the one question that gets us there, but we don't need five or ten of them.

THE COURT: Well, I kind of -- well, actually, I think they can ask, and she has to plead the Fifth on it every time.

MR. BRUNNER: We're wasting time, but -- MS. JERNIGAN: But, Judge, I'll proffer to the Court, if she's going to plead the Fifth as to that kind of question, we'll move on, Judge. We can't force her to testify about that issue.

THE COURT: Okay.

MR. BRUNNER: Well, on her behalf, Your Honor, as to the -- as to the -- as to the alleged violation of the gag order, I'll plead the Fifth for her.

MS. JERNIGAN: No. Your Honor, under the case law, she has to assert her right.

THE COURT: I understand that. Let's do it on the record real quick.

MR. WEBSTER: This isn't civil. It has to be all or nothing. If she pleads the Fifth -- for civil, it's every question. Criminal, she pleads the Fifth or not. So if that's the case, we're done here.

MS. JERNIGAN: Can we be included?

MR. WEBSTER: You walked away.

THE COURT: Well, that's why I wanted you back up here.

MR. BRUNNER: Don't walk away.

THE COURT: Their argument is that if she pleads the Fifth on any issue, her testimony is over because it's criminal as opposed to civil.

MR. WEBSTER: As far as the proceeding today.

MR. DECK: Well, that's just one issue.

MS. JERNIGAN: I mean, if they're going to try and King's X us on developing a record for our recusal motion, then we will have to, I guess, let the contempt go first and then have our -- MR. BRUNNER: Just ask the question.

That's fine. I'll withdraw my objection, Your Honor -- or my approaching. Let's just pretend it didn't happen.

THE COURT: Okay. (Bench conference ends) Q. (BY MR. DECK) Ms. Duty, I'm going to ask you some questions regarding the violation of the gag order.

Do you understand that?

A. The alleged, yes.

Q. Fair enough. The alleged violation of the gag order. Do you understand?

A. Yes.

THE COURT: Before you do that, Ms. Duty, I know you know this, and I think you probably talked to Mr. Brunner about this -- THE WITNESS: Right. I know that I'm subject to -- THE COURT: Okay. You have the right to remain silent and not say anything. Do you understand that?

THE WITNESS: Yes. Yeah.

THE COURT: Okay. Thank you.

Q. (BY MR. DECK) Do you choose to go forward and answer questions here today regarding the alleged violation of the gag order?

A. Yes.

Q. Going back to the question I had before, before the approach, on April 9th, Judge Kennon entered an order that prohibited the attorneys in the Harmel case from communicating with the press or media regarding the case or any public comments about the case. Do you remember that order?

A. The written order?

Q. Yes.

A. I didn't know about the written order until much later because it was never sent to me, so I never knew it was offered to the judge for his signature and then filed. So at that time, I did not know that a written order had been put in place.

Q. And you know, of course, that -- at least now you know that that written order was actually given to your first assistant, Mark Brunner, yes?

A. It was sent to him on the same day that it was signed, yes.

Q. That's correct. And it's not uncommon, right, for you and Mr. Brunner to talk about these -- about this case, right?

A. Right.

Q. In fact, if Mr. Brunner had that in his e-mail in-box and he saw it, you would expect him to tell you, I assume?

MR. BRUNNER: Objection, Your Honor.

That's speculative and it's work product. She would expect me that, if I saw something, I would tell her about it?

THE COURT: Overruled.

Q. (BY MR. DECK) You would expect your first assistant, with whom you've worked many, many, many months with, that if he found -- if he saw something in his in-box regarding a written order, he would tell you about it, wouldn't he?

A. If it was something worthy of telling me about and if he saw it, yes.

Q. Is a violation of a gag order worthy?

MR. BRUNNER: Objection -- Q. (BY MR. DECK) Excuse me. Is a gag order worthy?

MR. BRUNNER: Objection, speculative.

MR. DECK: I'm asking her opinion.

THE COURT: Overruled.

A. If Mr. Brunner had seen the gag order and wanted to come discuss it with me to say, Hey, I've gotten this, let's talk about it -- I mean, yeah, generally that's how it happens. But he never came to talk to me about it, so as far as I know, he didn't see it.

Q. (BY MR. DECK) And, of course, you were in court when the judge verbally said those things, that we were not to talk to the media anyway? You were in court, were you not?

A. Where we all agreed, in theory, that there was going to be a gag order put in place? Yes.

Q. No, no. Actually, it wasn't in theory. We actually agreed, did we not?

A. That a gag order was going to be put in place, yes.

Q. In fact, if I remember correctly, the judge did order it, and then he asked for a written order later, and I believe your first assistant, Mark Brunner, said, "Judge, you just said it," as in: You just ordered it.

Do you remember that?

A. Uh-huh. There were several -- several things that we specified -- or somebody specified that needed to be in the order, and those things weren't in the order, either.

Q. So, Ms. Duty, I have a question: If the very -- if later this afternoon, after what Mister -- excuse me -- Judge Kennon had ordered orally, if I went -- immediately went and called KXAN, would you have felt -- honestly, would you have felt that I violated Judge Kennon's order?

A. I think it depends on what you say. Because most gag orders that I have seen are very specific about what is prohibited and what is not prohibited. And so I guess it depends on what you were saying to the media of whether or not it would fall within the parameters of being a violation.

Q. So just so we're real clear, under oath, what your testimony is today in front of this court and everybody here, you're saying that if that afternoon I went and called Austin American-Statesman and started making comments about the Harmel case -- any comments, Ms. Duty, any -- you're telling me that may not have been a violation of the order that Judge Kennon gave us in front of you? That's what you're saying under oath?

A. No. I think if you made comments about the case, that would probably fall within the parameters of being a violation of the order.

Q. And it would have angered you, would it not, if I would have done that?

MR. BRUNNER: Objection, speculative.

THE COURT: No. That's overruled. That's not speculative.

MR. BRUNNER: About angry? What her emotional state would be to something hypothetically that he says, Your Honor?

THE COURT: I think based on the circumstances in this case, she can probably answer that question.

MR. BRUNNER: Okay.

A. Generally, in most gag orders that are -- that are very specific, which is how they're supposed to be written, talking about the facts of a case are what is -- that's generally what's prohibited in a gag order.

So if you called the Statesman and you were talking about the facts of the case, that, I would think, would fall within the parameters of being a violation.

Q. (BY MR. DECK) And by the way, I mean, if we're going to call the Statesman about the Harmel case, wouldn't we not be talking about the facts of the case?

I mean, isn't that why you would talk to the Statesman, or any news outlet, for that matter?

A. No. No. When you're talking to the Statesman, you can be talking about a lot of things. For example, accusations that are being made against me, that I violated some, you know, ethical rule or that I've -- you know, I'm withholding evidence in a case, that has nothing to do with the facts of the Harmel case, that has to do with an attack on me.

And so the -- the ethical rules and -- I believe most gag orders, the way they're written, they allow you to defend yourself.

Q. Is it your testimony -- is it your sworn testimony, Ms. Duty, that when you spoke to the Austin American-Statesman, you did not believe that there was an order in place for the attorneys of the Harmel case to not speak to the news media in any way regarding the Harmel case? Is that your sworn testimony this morning?

A. I knew that we had agreed in court that we would put a gag order in place. I did not know that there was a written order in place because I never saw it; it was never sent to me. And I would assume that if a written order was in place, that it would have been a proper order.

Q. Now, you know, like we've talked about, it was certainly spoken about, was it not?

A. Yes.

Q. Okay. And, in fact, it was spoken about roughly three weeks before you spoke to the Austin American-Statesman; is that fair enough?

A. Probably. That's about right.

Q. Now, the fact that it was spoken about and three weeks have gone by -- and you know, of course -- you would agree with me, right, the judge did ask for a written order, did he not?

A. Yes.

Q. Okay. You certainly could have gone down to the clerk's office, said, "Hey, do you mind if I look at the file," and verified that, in fact, there was a written gag order? You could have done that, could you not?

A. Yes.

Q. You did not, did you?

A. No. Q. In three weeks, you could have, couldn't you have?

A. I don't know that it was in place for three weeks, but -- Q. Roughly?

A. -- yeah, sure. Okay.

Q. Okay. And you know, of course, that you guys -- excuse me -- the State has filed, yesterday or a couple days ago, an emergency motion to stay these proceedings?

MR. BRUNNER: Objection. That's not relevant, Your Honor. That's a separate issue.

THE COURT: That's sustained.

Q. (BY MR. DECK) On May 6th, which is almost a month after April 9th, which is when the Judge entered the order, you sent an e-mail to the judge, did you not?

A. I'm assuming that date is correct.

Q. If at any point, Ms. Duty -- honestly, you know I'm not going to try to trick you. I don't do it that way. If at any point you would like me to show you something to jog your memory, I certainly will do that.

What I'm representing to you is that, based on this e-mail that I'm looking at, you sent an e-mail on May 6th to the judge. Does that sound about right?

A. Yes.

Q. Now, you agree, of course, that -- and, in fact, the State has argued in this very case that ex parte communications are frowned upon, aren't they?

A. Yes.

Q. You don't like it if a defense attorney has ex parte communications regarding any aspect of a case, do you?

A. No. Q. Now, you knew our e-mail address, didn't you?

A. Yes.

Q. You certainly -- and, in fact, you've actually sent e-mails to the judge, cc'd every single lawyer in this case; you've done that before, haven't you?

A. Yes.

Q. But on May 6th, Ms. Duty, you did not, did you?

A. Not that I recall.

Q. And, Ms. Duty, you would agree with me that that is an ex parte communication, is it not?

A. Well, ex parte communications are about the facts of the case.

Q. Okay. So your testimony -- your sworn testimony is that you don't believe that that communication to the judge was ex parte communications?

Is that your sworn testimony, Ms. Duty?

A. Yes. I do not believe that that was an ex parte communication because it had nothing to do with the facts of the case.

Q. Is there any particular reason why you did not cc the defense team, when you cc'd the defense team almost every other time that I know of you've e-mailed the judge?

A. I guess because it wasn't about the facts of the case.

Q. So that's the reason that you did not cc the defense team on your communication with the judge via e-mail on May 6th?

A. Yeah, or I just didn't think about it.

Q. It never entered your mind -- A. No. Q. -- that we might -- if you don't mind, I've got to make this clear for the record.

It never entered your mind that it might be something we'd like to know that you're talking about the judge -- you're talking to the judge about speaking to a news outlet, knowing that we were in court when the judge said we were not to speak to the news outlets?

A. It's not about the facts of the case, so, therefore, I didn't think that it was relevant to you.

Q. Does it surprise you to know, Ms. Duty, that we would be very interested in a communication like that?

Does that surprise you to know that right now?

A. Well, of course you would be.

Q. Right. So you knew that we would want to know about that communication, but you actively did not include us -- A. No, I didn't -- Q. Ms. Duty. Excuse me. You actively did not include us in that communication; isn't that fair to say?

A. I didn't think that through.

MR. BRUNNER: Your Honor, that's been asked and answered about three times.

A. I didn't think it through about how interested you would be in me talking to the Statesman reporter about defending myself against all of your ridiculous allegations. No, I did not think that through.

Q. (BY MR. DECK) And on May 7th, the very next day, the Austin American-Statesman, in fact, had an article, did it not?

A. Yes.

Q. And in that article, there are quotes from you; isn't that true?

A. Yes.

Q. And the reason why there are quotes from you is that you contacted a reporter with the Austin American-Statesman and you gave that reporter quotes, did you not?

A. Yes.

Q. And the very next day -- excuse me -- the same day that article came out, Judge Kennon sent an e-mail to all counsel, including you, to meet the very next morning, that Friday morning; isn't that true?

A. I'm assuming your dates are right.

Q. Fair enough.

A. I could have sworn the article came out on Wednesday. Is that right? The article came out on Wednesday?

I don't recall how close in time everything happened, but, yes, I did get an e-mail from the judge.

Q. It came out May 7th; is that fair to say? I can jog your memory if you'd like.

A. Is that a Wednesday or a Thursday.

Q. I don't know that, Ms. Duty. I'm not -- Thursday.

A. All right. Then, yes.

Q. Okay. So it comes out on Thursday with your quotes, and the very -- the very same day, the judge sends an e-mail to all counsel, making it very clear that he wanted to meet us the very next morning; is that fair to say?

A. Yes.

Q. Now, is it your sworn testimony, Ms. Duty -- THE COURT: Before you go on, Counsel, can you approach? (Bench conference on the record) THE COURT: I kind of know where you're going with all this, but what does it have to do with disqualification or recusal?

MS. JERNIGAN: Violations of the court order and multiple professional conducts are what we're talking about now, Judge. Because if you're going to rule that we can't recuse her, we've got to build a record to show those violations. We have to show her willful disdain for the rules of the court and our client's rights.

MR. BRUNNER: "Our client's rights" and the "rules of the court" are two different things, Your Honor. Mr. Harmel wasn't even at the meeting that we were all summoned to, Your Honor. This was a lawyers-only meeting. We'll proffer she wasn't here on Friday, the 8th. We'll proffer that.

THE COURT: Okay. I understand what you're saying, but I agree that Friday conference/meeting, whatever you want to call it, really -- and I think I said it on the record -- didn't really have to do with, quote, "the facts or the issues in the Harmel case, it had to do with the violation of that court order." MS. JERNIGAN: Well, I realize that, Your Honor. But prior to Your Honor taking the bench, I asked your bailiff if our client was going to be here, because I do think that behavior and conduct of this nature shows that she has personal animosity and has thrown all the rules out the window with respect to prosecuting my client.

MR. BRUNNER: So because she didn't like Mr. Harmel, she didn't show up for court? I think that's a stretch, Your Honor.

THE COURT: Let's do it quick.

MR. DECK: Okay. Gotcha.

THE COURT: To me, that's like a one- or two-question deal.

MR. DECK: I get it. I can.

THE COURT: Okay. (Bench conference ends) THE COURT: Go ahead, Mr. Deck.

MR. DECK: Thank you, Judge.

Q. (BY MR. DECK) The fact of the matter is, the judge set a hearing the very next morning; isn't that correct -- excuse me -- a meeting, I should say, at least, on May 8th?

A. Yes.

Q. Okay. And, of course, you weren't there?

A. Correct.

Q. And isn't it true that later on May 8th you sent an e-mail to the judge?

A. Yes.

Q. And in that e-mail, you did cc all counsel in this case?

A. I didn't?

Q. No. You did.

A. Okay. Okay.

Q. Is that fair to say?

A. I'm assuming so, yes.

Q. Okay. And also in that e-mail, you stated that you didn't show up because you were not given enough respect from the Court, and so therefore, you would not give respect to the Court by showing up to the hearing.

Do you remember something to that effect?

A. Something to that effect, yeah.

Q. So it wasn't because your child was sick or anything like that, you didn't show up as a show of disrespect to the Court?

A. No. Actually, I had plans for that day. I had that day off because I had family in town.

And so I said, I will attempt to rearrange my schedule if this is something important that I need to be there for.

And when I saw that it was going to be a 10-to-15-minute meeting, I thought, okay, well, it must not be something major if it's going to be so short.

And the fact that the judge didn't tell me what it was about, I thought, well, I will send my co-counsel because I have plans for the day, and I'm not going to come up to the courthouse for 10 to 15 minutes if my co-counsel can be there.

Q. And that's all fine and well, Ms. Duty, but I want to ask you about a specific sentence in your e-mail.

A. Yes.

Q. Okay. "If you don't respect me enough to give me the information I requested, I will not give you" -- "you" being Judge Kennon; is that fair to say?

A. Yes.

Q. -- "I will not give you respect and show up." Isn't that what you wrote?

A. Well, that's part.

Q. Is that what you wrote, Ms. Duty?

A. Yes, but that's only part of it. The other part was that there -- it's one of two things: One is, it wasn't important enough for me to be there -- Q. Ms. Duty, unfortunately that's not my question, and your answer at this point is nonresponsive. I just need you to answer my question, if you don't mind.

Okay?

A. Uh-huh.

Q. One of the other lines in your e-mail -- and I'm going to quote you, and if for any reason you need to read your e-mail, of course, I have it -- quote, "But making a public spectacle out of punishing me just hurts everyone. No one will come out unscathed." Did you write that Ms. Duty?

A. Yes.

Q. What did you mean by that?

A. Well, when we have a battle, everybody -- everybody gets wounded.

Q. Now, when I read that, Ms. Duty, I read that as a threat. Was it a threat?

A. No. It's just the truth. When public officials fight, it's -- it's ugliness, it's always in the media, and everybody ends up looking bad.

Q. Isn't it true, Ms. Duty, that we -- and by "we" I mean all the counsel in this case, including the judge, including the court reporter -- we met on May 5th in the grand jury room, which is in your office; isn't that fair to say?

A. Yes.

Q. And isn't it also fair to say, Ms. Duty, that at that time, you had in your possession -- you had read the Defense's motion for continuance; isn't that fair to say?

A. I'm sure I had it in my possession, but I probably hadn't read it.

Q. Well, I mean -- let's talk about that for a moment. I mean, because I know we had some discussions in Judge's chambers, and I remember you being very, very upset about the allegation, according to you, that not all evidence was given to us from Detective Acevedo. I mean, obviously, did someone tell you that, or did you read it for yourself?

A. I don't know how I knew that that was the allegation. Maybe I read it or maybe Mark and I talked about it and he said, you know, The allegation is that all the information is not on here. And that was the first that I had heard of it. Because I didn't actually look at the discs, so I didn't know what was on there.

Q. So it's fair to say, then, one way or the other, you knew what was being asserted in that motion for continuance, roughly, at least; is that fair to say?

A. Yes.

Q. Okay. Now, you also, I assume, would agree with me that nothing -- nothing was going to stop you -- nothing could have stopped you, I should say, between bringing it up to the judge while we're there in the grand jury room, "Hey, Judge, I would like to speak to the news outlet," despite the fact of what you said in open court? You could have done that in that grand jury room, could you not have?

A. At that time, it was not public -- I mean, it wasn't being reported on.

Q. But you were certainly angry about it?

A. Yeah.

Q. And you know, of course, that anything filed with the clerk is public?

A. Well, since you guys immediately sent it to the media, yeah.

Q. That did not happen, Ms. Duty, but let's move on. Okay?

I just want to make sure we're clear. You knew that that motion for continuance was essentially in the public because it was in the clerk's office, did you not?

A. But it had not been reported on.

Q. But you knew it was -- it was free for the public to look at -- A. Yes.

Q. -- didn't you?

A. Yes.

Q. Okay. Yet, you did not bring up to the judge at that point in time, with us present, that you might want to speak to any news outlets, did you?

I just need you to answer the question.

Did you or did you not bring it up to the judge?

A. At that time, no.

Q. Ms. Duty, we know you contacted the Austin American-Statesman after the gag order was issued. Did you contact any other news or media outlets?

A. No. They're the only ones that did a story.

Q. Okay. So you didn't contact KXAN?

A. No. Q. KEYE?

A. No. Q. KVUE?

A. No. Q. Excuse me. Georgetown Advocate?

A. No. Q. Ms. Duty, I would like to now kind of switch gears and talk about the video. Okay?

And, of course, you wrote a State's response to Defense's supplemental motion to recuse/disqualify the District Attorney's Office, and in that response, you address a video. So we know what video we're talking about, right?

A. Yes.

Q. Did you play any part in the production of that video?

A. No. Q. You knew nothing about the video until it was completed and given to you by your husband, Daniel Hunsicker; is that correct?

A. That's correct.

A. Yes.

Q. And have things been said in staff meetings in the privacy of our own office that maybe sometimes are a little unprofessional?

A. Yes.

Q. Things we wouldn't want to see in the newspaper the next day, correct?

A. Yes.

Q. But we say it anyway?

A. Yes.

Q. Talking about newspapers, let's talk about this gag order.

When we -- when you asked the Court for an order, do you assume that the Court is going to issue a valid order?

A. Yes.

Q. Do you assume the Court is going to issue a constitutional order?

A. Yes.

Q. When we asked the Court in this case to issue a gag order to prevent talking to the media, did we also ask for the -- to limit, let's say, the Defense from posting to an e-mail LISTSERV and trying to use that as a proxy to get information out that way?

A. Yes.

Q. And did the judge agree to that?

A. Yes.

Q. Was that other part of our request and the judge's order to have the Defense not post things to the LISTSERV, did that make it to the written order that he signed -- the judge signed?

A. No. Q. So that was said in open court to everybody here, correct?

A. Correct.

Q. The judge asked Defense counsel, Ms. Jernigan, to write the order, correct?

A. Correct.

Q. And she didn't write the entire order, did she?

A. No. Q. Or at least everything the judge said?

A. Correct.

Q. He asked for more things, and there was only: No one can talk to the media. Right?

A. Yes.

Q. There was nothing about a LISTSERV in there, was there?

A. No. Q. Did we sit down and let the judge know that we agreed with the proposed order that Ms. Jernigan proffered to the court?

A. No. I never saw it.

Q. Was the order signed the same day as it was e-mailed out to us?

A. Well, it wasn't e-mailed to me, but, yes.

Q. And was it e-mailed only to me?

A. Yes. As far as -- as far as I know.

Q. So, again, could have been cc'd to you -- you're the district attorney, correct?

A. Yes.

Q. Are you also the first chair attorney in this trial?

A. Yes.

Q. Also, we have an appellate attorney that's helping us out, Mr. Webster?

A. Yes.

Q. Was he cc'd on that gag order?

A. No. Q. The wisdom of going against the gag order and reaching out to Claire Osborn from the Austin American-Statesman, was that stemming from a desire to deprive this gentleman down on my far right, Mr. Harmel, a fair trial?

A. Absolutely not.

Q. Was it in a sense of any animosity towards

Mr. Harmel?

A. No. Q. Was it in a sense of any animosity towards the judge?

A. No. Q. Were you fed up with the accusations of withholding evidence?

A. Yes. That's -- Q. Did that get a little old?

A. -- an understatement. Yes.

Q. Did you feel at that time you had had enough?

A. Yes.

Q. And maybe that's not an explanation -- a good excuse for possibly violating the gag order, but that's the explanation, isn't it?

A. It is.

Q. Didn't call a press conference?

A. No. Q. Didn't go down your rolodex and call everybody else, right?

A. No. Q. One reporter wrote a story, and you contacted that one reporter, didn't you?

A. Yes.

Q. Ms. Duty, are prosecutors allowed to believe that the Defendant committed a crime?

A. Yes.

Q. If a defense attorney believes that his client committed a crime, is a defense attorney still allowed to defend that person?

A. Yes.

Q. If a judge believes that someone committed a crime, are they still -- if they keep it to themselves, at least, are they still able to judge the case and listen to the evidence and weigh it fairly?

A. Yes.

Q. In fact, are we the only ones in that equation between defense attorney, judge, and State, we're the only ones that have to believe that the Defendant did it, correct?

A. Yes.

Q. If we didn't believe that someone did it, we'd have to dismiss the case, wouldn't we?

A. Yes.

Q. So the fact that you have said things either in public or privately that you believe Mr. Harmel is guilty, well, that's why we're all here, correct?

A. Yes.

Q. If you didn't believe that, you wouldn't be first chair, and we wouldn't be prosecuting this case, would we?

A. Correct.

MR. BRUNNER: I'll pass the witness.

THE COURT: Mr. Deck?

MR. DECK: Thank you, Judge.

REDIRECT EXAMINATION BY MR. DECK: Q. Ms. Duty, I want to talk about the ideal way that a lawyer would handle the gag order situation.

Okay?

MR. BRUNNER: Your Honor, this is not relevant. We're now getting into a CLE lecture here.

This is -- THE COURT: You brought it up, Mr. Brunner, in your questioning. I'm going to allow a little bit of it, but not a lot.

MR. BRUNNER: Those are the magic words, Your Honor. Thank you. I'll settle for that.

Q. (BY MR. DECK) Ms. Duty, what a lawyer could do in that situation, the situation you found yourself in, a lawyer could go down to the clerk's office and verify whether or not there is a written gag order issued by the judge. Couldn't a lawyer do that?

A. Yes.

Q. And if she did and she found that there was a gag order and she found that that gag order, for whatever reason, was unconstitutional, couldn't that lawyer then file a motion stating that the gag order was unconstitutional? Could she do that?

A. Yes.

Q. Could that lawyer then set that motion for a hearing in front of Judge Kennon, the judge who issued the order, and have him hear it to determine whether or not that order was constitutional?

A. Yes.

Q. And if that judge found that the order was, indeed, constitutional [sic], and turns out you're allowed to speak to the media and then you do, wouldn't that be the most ideal, the most legal way of handling a gag order situation?

A. If I knew it was there, I would have gone down that direction, yes.

Q. Ms. Duty, we're going to go back to the first question. Could a lawyer go down to the clerk's office and check?

A. Yes. Yes.

Q. But you didn't do any of those things, did you, Ms. Duty?

A. I don't even have to go to the clerk's office.

I can just pull it up on my computer.

Q. Even better. You didn't even do that, Ms. Duty, did you?

A. I did not look to see if there was an order in place.

Q. And as the judge mentioned in the hearing -- I think it was the one that you weren't there for -- the other thing a lawyer could do is she could file a responsive pleading, taking issue with the assertions made in the Defendant's pleading. Could a lawyer not do that?

A. Yes. I did.

Q. A lawyer could do that instead of talking to a news outlet, without verifying whether or not there's an order. Couldn't a lawyer do that?

A. I -- yeah. I did file a responsive pleading, yes.

Q. You did, Ms. Duty. But isn't it true that you did it after you spoke to a news media outlet, in direct contradiction of what Judge Kennon said in open court?

A. What he said in open court was that there was going to be an order put in place.

Q. Okay. So -- A. And as far as I knew, there was not yet an order put in place, a written order, to my knowledge -- Q. Fair enough.

A. -- at that time.

Q. So just you felt like anyone could speak to the media after that day in court? Anyone could have spoken to the media right up to the point that a written order was signed by the judge? Is that your interpretation of what happened that day, Ms. Duty?

A. Very limited circumstances of what you could talk about, yes.

MR. DECK: One moment, Judge, please.

Q. (BY MR. DECK) Ms. Duty, you were in court on April 8th regarding this case, were you not?

A. I'm assuming so.

Q. Right. Because you were in court for everything regarding this case except for one time; isn't that fair to say?

A. Probably, yes.

Q. And, again, if you need your memory refreshed, of course, we have the transcript.

Mr. Brunner said near the end of that -- near the end of the hearing on April 8th, "Your Honor, the gag order is still in effect?" That was a question.

The Court said, "Yes." Mr. Brunner said, "Thank you, Your Honor." So is it your sworn testimony here today,

Ms. Duty, that there was not an order in effect, even though your first assistant asked that exact question in front of you to this judge? Is it your sworn testimony, Ms. Duty, that it was not in effect?

A. Well, if it's a valid gag order and it's in effect, then that allows you to still do certain things.

Q. Ms. Duty -- A. So I'm assuming that if the judge is saying, "Yes, there's a gag order in place," that it's a valid gag order. And a valid gag order is very specific.

It's not one sentence. It's usually about a page long, and it talks about what's restricted and what is not.

And under most gag orders that I have seen, being able to defend yourself is excluded. You can do that. You just can't talk about the facts of the case.

Q. Ms. Duty, you've never felt like you couldn't -- in these hearings, you've never felt like you couldn't speak up to the judge in these hearings, right? I mean, you've always been able to speak up to the judge if you wanted to, right?

A. Yes.

Q. And so if Mr. Brunner asks, "Your Honor, the gag order is still in effect?" and he response, "Yes," and your first assistance says, "Thank you, Your Honor," could you not have said, "Judge, hold up. Let's talk about that order. What exactly does it entail?" Could you not have done that?

A. I was assuming that Ms. Jernigan -- Q. I'm asking you -- no, no. I'll be very clear.

A. Yes. Could I have done that? Yes.

Q. And, of course, you did not?

A. No, I didn't.

Q. And isn't it true that your office challenged the gag order at the Court of Appeals just this week, and your petition was denied?

MR. BRUNNER: Objection, Your Honor. This is not relevant.

THE COURT: Actually, Ms. Duty has made it relevant.

So go ahead and ask the question.

MR. BRUNNER: How is that, Your Honor?

THE COURT: Because her whole point is it's not a valid order.

MR. BRUNNER: Okay.

Q. (BY MR. DECK) So isn't it true, Ms. Duty, that your office filed with the Court of Appeals a challenge to the gag order? Isn't that true? That just happened this week?

A. Yes.

Q. And isn't it also true that we found out very late yesterday that your petition was denied? Isn't that true?

A. On procedural grounds, yes. So it will be refiled.

Q. But that's not -- wait. Just so we're clear, that's not what it said, though, right? It didn't say -- A. It -- Q. Wait a minute. Let me be very clear.

Did it say it's denied on procedural grounds? Because I don't remember hearing -- seeing that. Is that what it said?

A. It cites a specific statute section, and that's what that section stands for.

THE COURT: Have you read the order?

Because, no, it doesn't.

THE WITNESS: It cites a specific statute.

MR. BRUNNER: Your Honor, we're talking about legal conclusions here, and we're going to have lawyers arguing about what other lawyers -- THE COURT: Pull the order. If you want to read the order, read the order.

MS. JERNIGAN: If I could just have a moment to pull it up, Your Honor?

Q. (BY MR. DECK) While she's pulling it up, Ms. Duty, I mean, if you don't remember, you don't remember, and that's totally fine.

THE COURT: I have it, if you need it.

MR. DECK: Okay. Do you mind if we approach, Judge?

THE COURT: Sure.

Q. (BY MR. DECK) Ms. Duty, I assume that if I showed you the actual order, it would jog your memory?

A. Well, I haven't seen it.

THE COURT: It does cite a rule, just so you know.

Q. (BY MR. DECK) Okay. But you haven't seen it, Ms. Duty?

A. No. Q. Ms. Duty, did you -- just one question. You haven't seen it, Ms. Duty?

A. I have not actually physically seen it.

Q. Okay. Fair enough.

And you just -- under sworn testimony, you said that it actually states something. Where did you get that information, Ms. Duty?

A. Mr. Webster called me yesterday afternoon -- yesterday afternoon when he got notice of that.

Q. Okay. So your impression is -- when it says, "The emergency temporary relief is dismissed as moot," your impression is that it was dismissed solely on procedural grounds?

A. The specific rule that is cited implies that it is -- there was, like, something, a box not checked or something missed or something not, you know, attached; that it's not an actual -- it's not -- it's not a ruling on the merits.

MR. BRUNNER: Your Honor, it's been denied. It's been denied. We know that. And so what her interpretation of it is -- MS. JERNIGAN: She gets to be impeached.

THE COURT: Well, I'm not sure why -- where she's getting the information that she's getting, but I've seen the order, and it doesn't say anything like that.

That being said, I'm not sure why it has anything to do with this at this point in time, anyway.

MR. BRUNNER: Thank you. I renew my relevance objection, Your Honor.

THE COURT: That's sustained.

MR. DECK: Pass the witness.

MR. BRUNNER: No further questions.

THE COURT: Thank you, Ms. Duty.

MR. DECK: Judge, we rest.

THE COURT: Do you have any witnesses on for murder, and I don't expect her to think he's a great guy and say great things about him.

So I understand that, especially in the motion that's been filed by the State on the motion to -- I mean, sorry -- by the Defense on the motion to recuse and disqualify has a long list of allegations that the Defense believes are violations of the Texas Rules of Professional Conduct by Ms. Duty with regard to this case and how it affects Mr. Harmel and due process violations.

That being said, looking at -- I still think under the case law, unless the Court of Criminal Appeals gives us another opinion that expands that, I don't think I have authority to disqualify her in this case, except under very, very limited circumstances.

And violations, even if I believe that they were violations of the Rules of Professional Conduct, I don't think that gives me authority to disqualify her.

So I'm going to deny the Defense's motion to disqualify the District Attorney's Office in this case.

Are y'all ready to start the double jeopardy issue? Okay. Let's -- go ahead, Mr. Brunner.

MR. BRUNNER: You saw me move, Judge.

We can start that. Just some procedural matters real quick, Your Honor, about some other filings that we had made that I would seek rulings on, but that would be very fast.

THE COURT: Okay. Well, let's take a 15-minute break. Let's start back at 11:00.

MR. BRUNNER: 11:00, Your Honor.

Thank you. (Recess from 10:42 to 11:04) (Open court, Defendant present) THE COURT: Okay. We're back on the record in Cause No. 13-0826-K277, State versus Crispin Harmel.

We're ready to proceed on the Defense's pretrial motion for writ; is that correct?

MR. DECK: Sure are, Judge.

MR. WEBSTER: Judge?

THE COURT: Yes.

MR. WEBSTER: If I can interject, prior to this I filed a motion asking the Court to void the gag order, and I wanted to ask the Court to either grant or deny that motion.

THE COURT: That's denied.

MR. WEBSTER: That's denied? Thank you, Judge.

THE COURT: Are you talking about voiding the one that's there or enter the new one that you wanted?

MR. WEBSTER: My request is that you void -- the first motion was to void the gag order that is currently present.

THE COURT: Okay. And on what grounds?

MR. WEBSTER: I would just reassert my argument that was made in that motion that was filed with the Court and the Defense.

THE COURT: Based on you think it's unconstitutional?

MR. WEBSTER: Yes, Your Honor.

THE COURT: I'm assuming you're aware of the Doctrine of Estoppel?

MR. WEBSTER: I'm just asserting my motion.

THE COURT: I'm assuming you're aware of the Doctrine of Estoppel?

MR. WEBSTER: I don't believe it applies in this case, Your Honor.

THE COURT: Really? One of the cases that you gave me clearly said that you can't object to an order that you agreed to be entered.

MR. WEBSTER: At this time we're objecting to it, and we're asking you to declare it void.

THE COURT: Okay. I'm going to deny that motion. And my reason for denying that motion is the State requested the motion; the Defense did not object to that motion; I said on the record what my ruling was; Mr. Brunner said, "That's great, Your Honor," agreeing to the language of the order; and there was no objection to it.

And so if y'all want to agree to vacate that order, if you guys want to go yell at the media all day long, you can if you want to. The only reason I entered this is because that's what you wanted, and nobody objected to it.

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 type of order.

MR. WEBSTER: For the record, then, Judge, I would at least like to, in a similar fashion, object to your ruling and take exception to your ruling on the unconstitutionality of the current gag order.

THE COURT: Sure.

MS. JERNIGAN: May I state something just for the record, Judge?

THE COURT: Sure.

MS. JERNIGAN: There's been a lot of discussion about the fact that I drafted the order that was at the Court's request. And just so the record is clear, I didn't come up with that language on my own, that's language that I found in a case that ratified a gag order using that exact same language.

So just so the Court is clear, I didn't come up with the language for the gag order. I modeled it after what Your Honor asked and after reviewing case law to determine the proper language.

THE COURT: Okay. Thank you.

Anything else?

MR. WEBSTER: Just so I'm clear, it's an expressed denial of our request to void the gag order?

THE COURT: That is correct. If you have an order that you want me to sign, I'll be glad to sign it.

MR. WEBSTER: Thank you, Judge.

MR. BRUNNER: Thank you, Your Honor. We have no more particular motions at this time.

THE COURT: Okay.

MR. DECK: The Defense calls Jana Duty, Judge.

And, of course, Judge, we're going to

A. Yes.

Q. When Mr. Harris was still working with us, correct?

A. Yes.

Q. And at that time, when you were kind of wrapping your brain around the case, you may or may not have been using, quote, the "proper player," correct?

A. Correct.

Q. You don't recall exactly, do you?

A. I don't.

Q. When you were in trial mode and preparing discrete exhibits, prepping your trial team -- which did not include Mr. Harris at the time, correct, did it?

A. That's correct.

Q. When you were in trial mode, as you say, were you using the correct player?

A. No. Q. When you were in trial mode, did that correspond when Mr. Deck was kind of in trial mode and was really ramping up his request for, quote, "the copies with the time-stamps"?

A. I'd say that's right.

Q. And at that time, you were not using the right player, were you?

A. I was not.

Q. And all along, they had, quote, "the copy with the time-stamps," right?

A. Yes.

Q. To the extent that anything is encrypted, hidden, whatever, on these videos, time-stamps are not obvious, you didn't make them not obvious, right?

A. No. Q. That's just how it came to us, correct?

A. Yes.

Q. And we had the same technical problem they had for weeks, correct?

A. A lot longer than weeks. I mean, the whole time that we had this case, yes.

Q. Persisting into the start of the trial, correct?

A. Yes.

Q. To prevail on a double jeopardy motion against the State, Defense has to prove that the State was trying to cause -- intentionally cause a mistrial.

Were you intentionally trying to cause a mistrial through any of your actions in this case?

A. Absolutely not.

Q. To legally prevail, they have to prove that we were trying to prevent an acquittal. Were we trying to prevent an acquittal, Ms. Duty? Were you at any time in

STATE OF TEXAS COUNTY OF WILLIAMSON I, SIMONE M. WRIGHT, Official Court Reporter in and for the 368th District Court of Williamson County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $ and was paid/will be paid by Williamson County.

WITNESS MY OFFICIAL HAND on this, the 8th day of June, 2015. /s/Simone M. Wright SIMONE M. WRIGHT, CSR Texas CSR 3266 Official Court Reporter 368th District Court Williamson County, Texas Martin Luther King, Box 8 Georgetown, Texas 78626 Telephone: (512) 943-1280 Job No. 164 Expiration: 12/31/2016

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.