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

• Court: Court of Appeals of Texas
• Decided: July 16, 2015
• Docket: WR-83,585-01
• Status: Published

Opinion

WR-83,585-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/15/2015 4:12:09 PM Accepted 7/16/2015 8:26:00 AM ABEL ACOSTA No. - -___ CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS RECEIVED COURT OF CRIMINAL APPEALS 7/16/2015 ABEL ACOSTA, CLERK IN RE JANA DUTY, RELATOR

IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE STATE OF TEXAS, WILLIAMSON COUNTY

RELATOR’S PETITION FOR WRIT OF MANDAMUS ORAL ARGUMENT NOT REQUESTED

TRIAL COURT CAUSE NUMBER 13-0826-K277 IN THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS HON. RICK J. KENNON

J. Woodfin Jones Brent Webster State Bar No. 10911700 State Bar No. 24053545 ALEXANDER DUBOSE Assistant District Attorney JEFFERSON & TOWNSEND LLP 405 MLK Street, #1 515 Congress Avenue, Suite 2350 Georgetown, Texas 78626 Austin, Texas 78701 Telephone: (512) 943-1234 Telephone: (512) 482-9300 Facsimile: (512) 943-1255 Facsimile: (512) 482-9303 bwebster@wilco.org wjones@adjtlaw.com IDENTITY OF PARTIES AND COUNSEL

Relator – Jana Duty, District Attorney, 405 M.L.K. Street, #1, Georgetown, Texas 78626.

Counsel for Relator – Brent Webster, Assistant District Attorney, Eric Gutierrez, Special Prosecutor, 405 M.L.K Street, #1, Georgetown, Texas 78626.

J. Woodfin Jones, Alexander, Dubose, Jefferson & Townsend, LLP, 515 Congress Ave., Suite 2350, Austin, TX 78701.

Respondent – Hon. Rick J. Kennon, Judge, 368th District Court, 405 M.L.K. Street, Georgetown, Texas 78626.

Real Party in Interest – Crispin James Harmel, represented in the underlying criminal prosecution by attorneys Kristen Jernigan, 207 S. Austin Ave., Georgetown, Texas 78626, Ryan Deck, 107 N. Lampasas, Round Rock, Texas 78664, and R. Scott Magee, 107 N. Lampasas, Round Rock, Texas 78664.

i TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT OF THE CASE ................................................................................. 1

STATEMENT OF JURISDICTION......................................................................... 2

ISSUE PRESENTED ................................................................................................ 2

STATEMENT OF FACTS ....................................................................................... 2

SUMMARY OF THE ARGUMENT ..................................................................... 10

THE COURT SHOULD GRANT RELIEF THROUGH A WRIT OF MANDAMUS ....................................................................................... 11

ARGUMENT AND AUTHORITIES ..................................................................... 17

I. No Adequate Remedy at Law ......................................................................... 17

II. Clear Entitlement to Relief ............................................................................ 18

A. The gag order is an unconstitutional prior restraint ................................... 18

B. A court abuses its discretion when it places prior restraints on a party without following the two-pronged Davenport analysis............................. 20

1. The gag order contains no specific findings that an imminent and irreparable harm will deprive litigants of a just resolution of their dispute ............................................................................................. 25

2. The gag order is not the least restrictive means to prevent the harm ....... 27

ii C. The State did not request or agree to the gag order signed by Respondent Court............................................................................................................ 29

D. The gag order signed by the Respondent Court is void and therefore can be attacked by the State irrespective of any prior request or agreement ........ 32

E. Relator and the public are harmed by the unconstitutional gag order ........ 36

PRAYER ................................................................................................................. 38

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 ........................ 40

CERTIFICATE PURSUANT TO TEX. R. APP. P. 52.3(j) ................................... 41

CERTIFICATE OF SERVICE ............................................................................... 42

iii INDEX OF AUTHORITIES

FEDERAL CASES Alexander v. U.S., 509 U.S. 544 (1993)......................................................................................19

Ex parte Siebold, 100 U.S. 371 (1879)......................................................................................33

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)..................................................................15, 16, 23, 37

U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000).............................................................23, 24, 25

STATE CASES Conlin v. Darrell Haun & Solarcraft, Inc., 419 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2013)..............................34

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)...................................12, 13, 18, 19, 21, 25, 27, 35

Ex parte Foster, 71 S.W. 593 (Tex. Crim. App. 1903)......................................................12, 33

Ex parte McCormick, 88 S.W.2d 104 (Tex. Crim. App. 1935) (orig. proceeding)..........................12

Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993).............................................................................21

Grigsby v. Coker, 904 S.W.2d 619 (Tex. 1995)...................................................................13, 31

Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (Tex. App.—Corpus Christi 1999, pet. dism’d w.o.j.)...........35

In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 2007, no pet.)..13, 23, 24

iv In re Garza, 126 S.W.3d 268 (Tex. App.—San Antonio 2003, no pet.)...............33, 34, 35

In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.)................................13, 22

In re Jana Duty, No. 03-15-00320-CV, 2015 Tex. App. LEXIS 5421 (Tex. App.—Austin May 28, 2015, orig. proceeding) (mem. op.).................8

In re Jana Duty, No. 03-15-00360-CV, 2015 Tex. App. LEXIS 6082 (Tex. App.—Austin June 17, 2015, orig. proceeding) (mem. op.)...............10

In re Perritt, 992 S.W.2d 444 (Tex. 1999).........................................................................17

Kennedy v. Eden, 837 S.W.2d 98 (Tex. 1992)...........................................................................18

Low v. King, 867 S.W.2d 141 (Tex. App.—Beaumont 1993, no writ)..............................13

Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908 (Tex. App.—Dallas 2006, no pet.).....................................19

Neveu v. Culver, 105 S.W.3d 641 (Tex. Crim. App. 2003), subsequent mandamus proceeding sub nom. In re Neveu, 14-07-00589-CV, 2007 WL 2198825 (Tex. App.—Houston [14th Dist.] Aug. 2, 2007).........................................13

Operation Rescue-Nat’l v. Planned Parenthood, 975 S.W.2d 546 (Tex. 1998).............................................................20, 33, 34

San Antonio Express-News v. Roman, 861 S.W.2d 265 (Tex. App.—San Antonio 1993, no writ)...............13, 19, 22

State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002)........................................................14

v State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924 (Tex. Crim. App. 2001)........................................................14

State ex rel. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim. App. 2003)........................................................13

State of Texas v. Wachtendorf, No. 03-14-00633-CR, 2015 WL 894731 (Tex. App.—Austin Feb. 26, 2015) (pet. granted April 29, 2015, PD-0280-15)…......................30

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).........................................................................14

STATUTES Tex. Crim. Proc. Code Ann. § art. 4.04 (Vernon 2015)...………………………….2 Tex. Crim. Proc. Code Ann. § art. 44.01 (Vernon 2015)...……………………….18

Tex. R. App. P. 72.....................................................................................................2

CONSTITUTIONS Tex. Const. art. I, § 8...................................................................................11, 18, 19

Tex. Const. art. V, § 5 (amended 2001)……………………………………………2

U.S. Const. amend. I................................................................................................18

vi STATEMENT OF THE CASE

This mandamus proceeding arises out of the criminal prosecution of Crispin

James Harmel, the Real Party in Interest, for the offense of Capital Murder. The

Defendant’s case is set for trial in November of 2015.

On April 9, 2015, the Respondent Court signed a gag order that broadly

prohibits the parties, attorneys, and the attorneys’ staff, from any communication

with the media/press or publicly commenting about the case. The order excluded

terms the State had previously requested, did not include any findings justifying its

entry, and was not narrowly tailored, thereby violating the constitutional rights of

Relator and more than 40 persons affected by the order. Also, the Respondent

Court did not give notice to Relator that he had signed and entered a written gag

order.

Subsequently, Relator, unaware that a written gag order had been signed,

spoke to a member of the press solely for the purposes of defending herself against

Defense Counsel’s accusations of unethical conduct. Respondent Court then

threatened to hold Relator in contempt of court. These threats continue, with a

contempt hearing scheduled for July 23, 2015. At the time of filing this petition,

there has been discussions to reschedule the hearing to a future date. The State filed written motions asking the Respondent Court to withdraw the

gag order and later petitioned the Third Court of Appeals to issue a writ of

1 mandamus vacating the order. The relief requested has been denied, both by

Respondent Court and the Third Court of Appeals.

STATEMENT OF JURISDICTION

Jurisdiction of this Honorable Court is invoked pursuant to Tex. Const. art.

V, § 5 (amended 2001); Tex. Crim. Proc. Code Ann. § art. 4.04 (Vernon 2015);

and Tex. R. App. P. 72.

ISSUE PRESENTED

Whether Respondent was without authority or discretion to violate the free speech

rights of Relator by failing, before entering a gag order, to hear evidence and make

specific findings that (1) an imminent and irreparable harm to the judicial process

will deprive the litigants of a just resolution of their dispute, and (2) the judicial

action represents the least restrictive means to prevent that harm.

STATEMENT OF FACTS

On March 18, 2015, approximately two weeks preceding the anticipated

start of the Defendant’s jury trial, Defense Counsel filed a Pre-Trial Motion for

Writ of Habeas Corpus, alleging that Relator, Williamson County District Attorney

Jana Duty, representing the State, had committed prosecutorial misconduct by

withholding timestamps from a surveillance video and by not disclosing the

2 timestamps to Defense Counsel until after the commencement of the first trial. See

Appendix 1. Relator and the State have denied the misconduct accusations,

asserting that the timestamps were included in the video provided to Defense

Counsel and could have been viewed if played on a proper video player. See

Appendix 18 at 229-230. The Respondent Court had granted the Defense’s motion

for mistrial without prejudice on May 7, 2014, ending Defendant’s first trial in the

manner Defense Counsel requested. Id. When granting the mistrial, the

Respondent Court expressly stated on the record that there was no prosecutorial

misconduct. Id.

After filing its Motion for Writ of Habeas Corpus, Defense Counsel granted

several interviews with various local news organizations. See Appendix 14 at 24.

Following the interviews, stories were published regarding the accusations with

titles that included language such as “Prosecutor lied about evidence.” Id. at 25.

As a result of these interviews and considering the proximity of the stories being

published to the anticipated trial date, the State made a general request at a hearing

on March 20, 2015, that a gag order be issued in the case. Id. at 24. At the time of

the March 20, 2015 hearing, the case was set for jury trial on March 31, 2015. See

Appendix 1.

At that hearing, the parties preliminarily discussed with each other and the

Respondent Court the issuance of a gag order. See Appendix 14. The State

3 contended that the Defense Counsel’s media interviews put the State in a

predicament: either not respond and have false allegations and misinformation

continue to circulate unrebutted, or respond and run the risk of over-responding,

which could lead to larger complications. Id. at 24-25. Mark Brunner, First

Assistant District Attorney who is sitting second chair in the Real Party in

Interest’s case, made it clear to the Respondent Court that the attorneys

representing the State would defend themselves from personal attacks and

accusations derived from misinformation, just as the Defense Counsel would if any

attacks or accusations were aimed at them by the State. Id. at 26-27.

The Respondent Court determined that the gag order issue would be taken

up at the next pretrial hearing, and then scheduled the hearing for March 31, 2015.

Id. at 28. The Respondent Court stated that any communications with the media

until the March 31, 2015 hearing were prohibited. Id. The Respondent Court

made clear a willingness to discuss at that hearing the scope of any limitations and

restrictions that should be included in the gag order. Id.

At the end of the pretrial hearing on March 31, 2015, the Respondent Court

again discussed the issuance of a gag order with the parties. See Appendix 15 at

74. Neither party opposed the issuance of a gag order. Id. The Respondent Court

explained that the gag order would restrict all parties from discussing the case with

the media or posting on any social media websites. Id. Additionally, the

4 Respondent Court agreed with the State that the gag order should also restrict

Defense Counsel from discussing the case on the Williamson County Defense

Lawyers Association listserv. Id. at 74-75. The Respondent Court then said the

gag order “applies to [Defense Counsel]’s employees, anyone else you have hired,

it applies to the DA’s Office and anybody that’s hired or with the DA’s Office.”

Id. at 75. The Respondent Court directed Defense Counsel Jernigan to draft the

gag order. Id. at 76. Ms. Jernigan responded that she would “take care of [it].” Id.

at 76.

At the next pretrial hearing held on April 8, 2015, the Respondent Court

noted that he had not received a draft of a written gag order from Defense Counsel.

See Appendix 16 at 89. The following day, April 9, 2015, Defense Counsel

drafted and e-mailed a proposed gag order to the Respondent Court and Mr.

Brunner. See Appendix 4. Mr. Brunner did not discover the proposed gag order

that had been e-mailed on April 9, 2015, and was unaware that it was signed by the

Respondent Court later that same day. See Appendix 18 at 73. Relator, District

Attorney Jana Duty, the first chair prosecutor on the Real Party in Interest’s case,

was not included on the email sent by Defense Counsel to Mark Brunner. See

Appendix 4.

The gag order consists of a single sentence: “The parties, attorneys, and

employees of the attorneys in this case are prohibited from communicating with

5 the press/media regarding this case or publicly commenting on this case during the

pendency of the proceedings.” See Appendix 2. The Respondent Court signed the

proposed order on the same day that Defense Counsel Jernigan sent the email,

April 9, 2015, and filed the order with the District Clerk on April 10, 2015. See

Appendix 2. No hearing was held on April 9, 2015.

On May 6, 2015, Relator Jana Duty, still unaware that a written gag order

had been signed, sent an e-mail to the Respondent Court notifying the court that

Relator planned to contact a reporter at the Austin American Statesman because

the reporter had recently published an online article about the Real Party in

Interest’s case referencing and including details from the Defense Counsel’s latest

pleading. See Appendix 8.2. In the e-mail, Relator stated that she would not

discuss the facts of the case, but would only defend herself against the Defense

Counsel’s accusations against her. Id. The Respondent Court did not respond to

this email. On May 6, 2015, the Austin American Statesman published an article

containing quotes from Relator. See Appendix 8.3.

On May 7, 2015, at 5:22 p.m., the Respondent Court sent an e-mail to the

parties on the case, stating that he wanted to meet with the parties sometime on

May 8, 2015. See Appendix 8.4. Relator responded at 5:51 p.m. that she would be

willing to rearrange her schedule to attend the meeting, but would like notice as to

the topic of the meeting. Id. Without providing such notice, the Respondent Court

6 responded at 5:54 p.m. with a command to meet in the courtroom at 10:30 a.m. the

following day. Id.

On May 8, 2015, the Respondent Court called the Real Party in Interest’s

case, saying he did not have another case number under which to call the

proceeding at the time. See Appendix 17 at 4. The Respondent Court asked for

Relator. Id. Mr. Brunner, who had appeared for the State at many previous

hearings as the second chair prosecutor in the Defendant’s case, told the

Respondent Court that the State was present. Id. The Respondent Court declared

that the State had two options at this point: either get ahold of Relator for her to

appear before the court or the court would issue a capias for Relator’s arrest to get

her to the hearing. Id. Mr. Brunner again asked to know the subject matter of the

hearing, to which the Respondent Court responded: “You’ll know when she shows

up.” Id. at 5.

After a short recess, the hearing continued without Relator’s presence. Id. at

5-6. The Respondent Court summarized events that had transpired in the past few

months. Id. at 7-10. The Respondent Court then concluded that Relator’s quotes

in the article directly violated the gag order and that Relator’s conduct constituted

contempt of court. Id. at 11-12.

On May 12, 2015, the State filed a Motion to Rescind Unconstitutional Gag

Order. See Appendix 3. In its motion, the State (1) argued that the gag order is

7 unconstitutional on its face under both the State and Federal Constitutions, (2)

requested the Respondent Court to rescind and declare void the existing gag order,

and (3) requested the Respondent Court to enter a valid gag order. Id. On May 14,

2015, the State filed a Motion to Enter a Constitutional Gag Order, re-urging the

Respondent Court to rescind and declare void the existing gag order. See

Appendix 5. The State attached a proposed, constitutionally valid gag order to its

motion. Id.

On May 14, 2015, the Respondent Court filed a motion and affidavit laying

out its intent to hold Relator in contempt for violating the gag order. See Appendix

8. On May 15, 2015, Relator was served with an Amended Order to Show Cause

as to why she should not be held in contempt of court for violating the gag order.

See Appendix 10. These documents include notice of a hearing on the show cause

order set for July 6, 2015. See Appendix 7.

On May 27, 2015, Relator District Attorney Jana Duty filed her Petition for

Writ of Mandamus with the Third Court of Appeals, requesting the Court to void

the unconstitutional order and cease all contempt proceedings against Relator. See

Appendix 12. On May 28, 2015, the Petition was denied. In re Jana Duty, No. 03-

15-00320-CV, 2015 Tex. App. LEXIS 5421 (Tex. App.—Austin May 28, 2015,

orig. proceeding) (mem. op.).

8 On May 29, 2015, the Respondent Court held a pre-trial hearing regarding

the disqualification of the District Attorney’s office and the Real Party in Interest’s

Writ of Habeas Corpus. See Appendix 18. At the hearing, Relator took the stand

as a witness. Relator testified under oath that at the time she reached out to the

reporter, she was unaware that a written gag order had been signed and entered in

the case, as the proposed order was never sent to her and had been signed by the

Respondent Court on the same day Defense Counsel sent it to the court. Id. at 31.

Relator was not notified by Respondent Court that a written gag order had been

signed and entered by the court. Relator testified that when she reached out to the

reporter, she did not discuss the facts of the case, only the accusations that were

made against her of withholding evidence. Id. at 35-36. On cross-examination,

Relator further stated that she only contacted the reporter with respect to the

accusations of withholding evidence, not the facts of the case. Id. at 74.

The State orally requested the Respondent Court to rule on its previously

filed motions regarding the gag order. Id. at 95. The Respondent Court summarily

denied the State’s motions, basing its decision on the doctrine of estoppel. Id. at

96-97. The Respondent Court did not address the unconstitutionality of the

existing gag order in denying the State’s motion. Id. at 97. The Respondent Court

went on to state that if the State wanted to enter a subsequent gag order, the State

would have to present evidence at a hearing to justify the specific findings that

9 would be included in the order. Id. at 97. On May 29, 2015, the Respondent Court

issued an Order denying the State’s motions with respect to the gag order. See

Appendix 6. It is this May 29, 2015 order denying the State’s motion that forms

the procedural basis for this mandamus petition.

On June 9, 2015, Relator filed a second Petition for Writ of Mandamus with

the Third Court of Appeals, requesting the Court to void the unconstitutional gag

order and cease all contempt proceedings against Relator. See Appendix 13. On

June 17, 2015, the court of appeals denied the Petition. In re Jana Duty, No. 03-

15-00360-CV, 2015 Tex. App. LEXIS 6082 (Tex. App.—Austin June 17, 2015,

SUMMARY OF THE ARGUMENT

Respondent Court is without authority or discretion to violate Relator’s free

speech rights by entering a gag order without first hearing evidence and making

appropriate specific findings based on that evidence, pursuant to the Texas

Supreme Court’s holding in Davenport and this Court’s holdings in Ex Parte

Foster and Ex Parte McCormick. Although the State had made a general request

for a gag order, the State did not request the Respondent Court to enter the

unconstitutional gag order prepared by Defense Counsel here. Respondent Court

signed and entered Defense Counsel’s gag order shortly after receiving it. The gag

10 order, which consisted of a one-sentence blanket prohibition that constitutes a

broad prior restraint on the speech of the Relator and multiple others, lacks any of

the specific findings required by law, is not narrowly tailored, and does not use the

least restrictive means to achieve the goals of the order. This renders the gag order

unconstitutional and void. Because the Respondent Court is without authority or

discretion to bypass the process of hearing evidence and making specific findings

supported by that evidence, this Court should grant the requested mandamus relief.

⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯

THE COURT SHOULD GRANT RELIEF THROUGH A WRIT OF MANDAMUS

Relator is petitioning this Court to mandamus the Respondent Court for

entering an unconstitutional and void gag order that infringes on the constitutional

rights of Relator, a trial participant. This Court should grant Relator leave, hear

this Petition for Writ of Mandamus, and reaffirm the oft-repeated standard for the

protection of free speech rights granted to all Texas citizens by the Texas

Constitution. Tex. Const. art. I, § 8. The Respondent Court refused to withdraw

its gag order even in the face of well-settled Texas law regarding orders that

restrict a person’s free speech rights under the Texas Constitution. That well-

settled law has been articulated by the Texas Supreme Court citing holdings made

by this Court as precedent for its conclusion that injunctions that place prior

11 restraints on speech are presumed unconstitutional unless the trial court hears

evidence and makes specific findings that (1) an imminent and irreparable harm to

the judicial process will deprive the litigants of a just resolution of their dispute,

and (2) the judicial action represents the least restrictive means to prevent that

harm. See Davenport v. Garcia, 834 S.W.2d 4, 9-12 (Tex. 1992) (citing Ex parte

McCormick, 88 S.W.2d 104 (Tex. Crim. App. 1935); Ex parte Foster, 71 S.W. 593

(Tex. Crim. App. 1903)). In the present case, the Respondent Court made no

findings whatsoever pertaining to the gag order at issue.

Although this Court has not ruled on whether mandamus relief should be

granted when a court places prior restraints on free speech of trial participants,

which was the issue in Davenport, this Court has addressed the issue of prior

restraints on free speech in criminal cases. See Ex parte McCormick, 88 S.W.2d

104 (Tex. Crim. App. 1935) (orig. proceeding); Ex parte Foster, 71 S.W. 593 (Tex.

Crim. App. 1903). In both cases, this Court found prior restraints unconstitutional

under Section 8 of the Texas Constitution and declared the trial court orders void.

McCormick, 88 S.W.2d at 107; Foster, 71 S.W. at 596. Furthermore, in many

cases, the Texas Supreme Court and several Texas courts of appeals have granted

mandamus relief in both civil and criminal cases in determining that the injunction

at issue was an unconstitutional prior restraint and declared the gag order void.

See, e.g., Davenport, 834 S.W.2d 4, 8-10 (Tex. 1992); San Antonio Express-News

12 v. Roman, 861 S.W.2d 265, 266 (Tex. App.—San Antonio 1993, no writ); In re

Benton, 238 S.W.3d 587, 592 (Tex. App.—Houston [14th Dist.] 2007, no pet.); In

re Graves, 217 S.W.3d 744, 747-748 (Tex. App.—Waco 2007, no pet.); Grigsby v.

Coker, 904 S.W.2d 619 (Tex. 1995); Low v. King, 867 S.W.2d 141 (Tex. App.—

Beaumont 1993, no writ). Relator is unaware of a Texas case, with facts similar to

this case, where a gag order restricting the speech of trial participants has been held

to be constitutional when contested by a trial participant.

Every court that has addressed this issue on mandamus has determined that a

trial court abuses its discretion if it does not make specific findings supported by

evidence before entering a gag order that (1) an imminent and irreparable harm to

the judicial process will deprive the litigants of a just resolution of their dispute,

and (2) the judicial action represents the least restrictive means to prevent that

harm. See Davenport, 834 S.W.2d at 10.

Mandamus relief may be granted if the relator can demonstrate that: (1) the

act that relator seeks to compel is purely ministerial, and (2) relator has no other

adequate legal remedy. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App.

2003), subsequent mandamus proceeding sub nom. In re Neveu, 14-07-00589-CV,

2007 WL 2198825 (Tex. App.—Houston [14th Dist.] Aug. 2, 2007) (citing State

ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)). This Court

has alternatively stated that, in order to be entitled to a writ of mandamus, the

13 relator must demonstrate that: (1) there is no other adequate legal remedy, and (2)

there is a clear and indisputable right to the relief sought. State v. Patrick, 86

S.W.3d 592, 594 (Tex. Crim. App. 2002) (citing State ex rel. Hill v. Court of

Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001)).

The ministerial-act requirement has been described as a requirement that the

relator has “a clear right to the relief sought,” meaning the relief sought must be

“clear and indisputable” such that its merits are “beyond dispute” with “nothing

left to the exercise of discretion or judgment.” State ex rel. Hill, 34 S.W.3d at 927-

928. A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to constitute a clear and prejudicial error of law. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992).

When a trial court enters a gag order, that court does not have the authority

or discretion to summarily skip the requirement to hear evidence and make specific

findings. The Relator here is not asking this Court to review findings that involved

discretion by the Respondent Court; indeed, such a review would be impossible,

since there was no effort by Respondent Court to make any findings at all. Relator

is instead asking this Court to grant mandamus relief on the basis that no evidence

was heard, no findings were made, and the gag order is not the least restrictive

means to prevent any anticipated harm.

14 Finally, this Court should grant the petition in this case because the public is

harmed by allowing an unconstitutional gag order to continue in effect. In Gentile,

Justice Kennedy articulated that prior restraints on speech of trial participants

affect the public’s ability to have an informed opinion about criminal proceedings.

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035 (1991). The Gentile Court

articulated why the public’s right to information is important in a criminal

proceeding:

The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838-839 (1978). “[I]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980). Public vigilance serves us well, for “[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.... Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.” In re Oliver, 333 U.S. 257, 270-271 (1948) . . . .... In Sheppard v. Maxwell, 384 U.S. 333, 350 (1966), we reminded that “[t]he press ... guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” . . . see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Brennan, J., concurring in judgment) (“[C]ommentary on the fact that there is strong evidence implicating a government official in criminal activity goes to the very core of matters of public concern”), or where, as is also the present circumstance, the criticism questions the judgment of an elected public prosecutor. Our system grants prosecutors vast discretion at all stages of the criminal process, see 15 Morrison v. Olson, 487 U.S. 654, 727-728 (1988) (SCALIA, J., dissenting). The public has an interest in its responsible exercise.

Gentile, 501 U.S. at 1035-36.

The public in Williamson County has a right to accurate information

regarding criminal cases, including the actions of Relator, the public’s elected

District Attorney. If this Court allows the present void gag order to stay in place,

the public will be hampered in having complete and accurate knowledge.1 For

example, if a newspaper, television station, or blog decides to present a story about

this case and reports inaccurate or false information, the current gag order prevents

all parties from issuing any type of press release, press conference, or other

measure to correct the false information. In this case, false allegations of unethical

conduct were made by Defense Counsel against Relator, the elected District

Attorney. The public is harmed when it does not have both sides of the story as it

relates to allegations of wrongdoing against the elected prosecutor and her staff.

This is exactly the type of harm Justice Kennedy was concerned about in Gentile.

1 Ironically, while the Respondent Court summarily restricted the free speech of the parties, the court e-mailed a member of the press on June 27, 2015, to correct what the court believed to be an inaccurate story about actions the court had or had not taken in the underlying case. The Respondent Court instructed the newspaper to “take the article down.” See Appendix 11.

16 ARGUMENT AND AUTHORITIES

I. No Adequate Remedy at Law

The Respondent Court has issued a gag order preventing all parties,

including Relator, from talking to the press or the public about Cause Number 13-

0826-K277. The State has an obligation to approach the trial court and ask that

court to address the State’s objection to the order before petitioning for a writ of

mandamus. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999). The State has

attempted to fulfill this obligation by submitting two separate motions to the

Respondent Court before petitioning for a writ of mandamus. The first written

motion objected to the May 12, 2015 gag order and asked the Respondent Court to

rescind that order because it is unconstitutional and void. See Appendix 3. The

second motion re-urged the Respondent Court to withdraw the April 9, 2015 gag

order and apply the Davenport analysis to enter a constitutional gag order. See

Appendix 5. At a hearing on May 29, 2015, the State requested the Respondent

Court to rule on its two motions to void the existing gag order. See Appendix 18 at

95. The Respondent Court orally denied the motion.2 Id. at 95-96. That same day,

2 During the hearing where the State objected to the gag order on May 29, 2015, the Respondent Court demonstrated that he understood that the ruling in Davenport should apply to gag orders but refused to apply it to the one that was entered. After denying state’s motion to vacate or void the earlier gag order, the court stated, “If you want to enter a different gag order, then you need to put on evidence that meets all the criteria that you wanted in the proposed gag order that you filed in your other motion. But you would have to present evidence that would justify those findings in order to enter that particular order.” See Appendix 18 at 97. The Respondent Court’s

17 the Respondent Court signed a written order denying the State’s Motion to Void

Gag Order. See Appendix 6.

The State can only pursue relief by way of an extraordinary writ before this

Court. The State has no right to appeal the Respondent Court’s ruling. See Tex.

Crim. Proc. Code Ann. § art. 44.01 (Vernon 2015). The harm suffered from an

order restraining the speech of the Relator could not be repaired on appeal.

Kennedy v. Eden, 837 S.W.2d 98, 99 (Tex. 1992). The State cannot challenge the

Respondent Court’s ruling by way of an application for a writ of habeas corpus,

and the Texas Legislature has set up no administrative remedy whereby the State

can challenge the Respondent Court’s ruling.

II. Clear Entitlement to Relief

A. The gag order is an unconstitutional prior restraint

The protection of a person’s free speech rights is firmly rooted in the United

States and Texas Constitutions, with Texas providing even greater rights of free

expression than its federal analogue. See Davenport v. Garcia, 834 S.W.2d 4, 8-10

(Tex. 1992); see U.S. Const. amend. I. The Texas Constitution provides, “Every

person shall be at liberty to speak, write or publish his opinions on any subject,

being responsible for the abuse of that privilege, and no law shall ever be passed

refusal to apply Davenport to his first gag order but insistence that it apply to future gag orders demonstrates an even greater need for mandamus relief.

18 curtailing the liberty of speech or of the press.” Tex. Const. art. I, § 8.

An order of a court that forbids communications before they occur

constitutes a prior restraint on speech. Marketshare Telecom, L.L.C. v. Ericsson,

Inc., 198 S.W.3d 908, 917 (Tex. App.—Dallas 2006, no pet.); see also Alexander

v. U.S., 509 U.S. 544, 550 (1993) (A prior restraint on speech is an “administrative

and judicial order forbidding certain communications when issued in advance of

the time that such communications are to occur.”). Prior restraints on speech are

presumptively unconstitutional. Davenport, 834 S.W.2d at 10; San Antonio

Express-News, 861 S.W.2d at 267.

The Texas Supreme Court has described gag orders as injunctions. See

Davenport, 834 S.W.2d at 6. (“The trial court correctly characterized as a ‘gag

order’ its oral injunction…”).3 This is important because the constitutionality of

3 Black’s Law Dictionary defines injunctions in a way that is reflected in the Davenport ruling:

“A court order commanding or preventing an action. To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted. .... ‘In a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience; as a remedial writ which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity." 1 Howard C. Joyce, A Treatise on the Law Relating to Injunctions § 1, at 2–3 (1909).’” Black's Law Dictionary 855 (9th ed. 2011).

19 injunctions are to be judged even more strictly than the review of legislative action.

Operation Rescue-Nat’l v. Planned Parenthood, 975 S.W.2d 546, 559-560 (Tex.

1998). It appears that most of the case law regarding injunctions was developed

through civil cases, as this is a common remedy in civil law; most criminal cases

do not have the need or place for injunctions.

The Respondent Court’s gag order signed on April 9, 2015, constitutes a

prior restraint on the future speech of all persons in this case, including the

“parties, attorneys, the employees of the attorneys in this case.” See Appendix 2.

This order broadly places prior restraints on more than 40 persons,4 all of whom

are deserving of the protections found in the Texas and United States

Constitutions. More specifically, the order restricts Relator District Attorney Jana

Duty’s free speech rights and causes her actual and affirmative harm. See

discussion infra Part II.E. An unconstitutionally broad order such as the one

signed by the Respondent Court does not give the parties who are subject to the

order adequate notice as to how or why their rights are being restricted.

B. A court abuses its discretion when it places prior restraints on a party without following the two-pronged Davenport analysis

The Respondent Court did not have the authority or discretion to ignore the

4 Including the defense attorneys, their employees, the defendant, the elected District Attorney, all of the employees of the District Attorney’s office, and the special prosecutors currently employed at the District Attorney’s office, there are more than 40 individuals affected by this order.

20 Davenport test when issuing the gag order. The failure to hear evidence and make

findings supported by that evidence is sufficient grounds alone to grant mandamus

relief.

Davenport involved an oral injunction, later put in writing, in a protective

order which constituted a gag order that was ultimately declared void as

unconstitutional. Davenport, 834 S.W.2d at 6, 10. There, the supreme court held

that a trial court abuses its discretion if it does not make specific findings

supported by evidence before entering a gag order that (1) an imminent and

irreparable harm to the judicial process will deprive the litigants of a just resolution

of their dispute, and (2) the judicial action represents the least restrictive means to

prevent that harm. Id. at 10; see also Ex parte Tucci, 859 S.W.2d 1, 5-6 (Tex.

1993). Davenport fully recognized that a prior restraint can withstand scrutiny

under the court’s two-part test only “under the most extraordinary circumstances.”

Davenport, 834 S.W.2d at 10. The court reasoned that this result is consistent with

the mandate of the Texas Constitution recognizing the broad right to freedom of

expression in Texas. Id. Without taking the steps necessary to make specific

findings and without actually making any specific findings, a gag order is

unconstitutional and void for violating the parties’ rights to free speech. Id. at 11.

The Fourth Court of Appeals has applied the Davenport test with respect to

the constitutionality of gag orders in criminal cases. See San Antonio Express-

21 News, 861 S.W.2d at 268 (mandamus conditionally granted requiring trial court to

rescind unconstitutional order prohibiting relator, newspaper that claimed its state

constitutional rights had been violated, from publishing names of two witnesses).

The Tenth Court of Appeals gave the following reason for applying the Davenport

test in a criminal case,

The Court of Criminal Appeals often relies on the decisions of the Supreme Court of Texas when addressing matters of state constitutional law. See, e.g., Luquis v. State, 72 S.W.3d 355, 364-65 (Tex. Crim. App. 2002); Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App. 1996). The Supreme Court reciprocates. See Davenport, 834 S.W.2d at 14 ("We give thoughtful consideration to that court's analysis in part to avoid conflicting methods of constitutional interpretation in our unusual system of bifurcated highest courts of appeal."); see also Yanes v. Sowards, 996 S.W.2d 849, 852 (Tex. 1999) (per curiam). Therefore, we shall apply Davenport in this case.

Graves, 217 S.W.3d at 749.

Here, the Respondent Court did not have the authority or discretion to

completely skip hearing evidence and making findings supported by that evidence,

as Davenport requires. In fact, the Respondent Court applied no test, heard no

evidence, and made no findings at all. The court merely enacted a blanket

restriction on all communication, no matter how tenuous it might be in relation to

the case. This act unconstitutionally violates Relator’s free speech rights and that

of 40 other individuals.

Not only is the Respondent Court without authority or discretion to take

22 such action, but the court’s action affirmatively creates harm. Without the

protections that are embodied in the procedure laid out in Davenport, the harm that

can be done by a gag order spreads far and wide and subjects many individuals to

violations of a broad injunction without any notice. The findings are necessary to

put the 40 individuals, who were not all in court, on notice as to the specifics of

what they are barred from doing and justifies the bar. Without those findings,

those individuals are left without direction. See discussion infra Part II.E.

The gag order entered by the Respondent Court also fails the federal test

regarding prior restraints, similar to the Benton gag order. In In re Benton, the trial

court issued a gag order prohibiting a juvenile, her trial attorneys, and the

attorneys’ agents and employees from discussing the juvenile’s criminal case. See

Benton, 238 S.W.3d at 598. The Fourteenth Court of Appeals noted that “Texas

courts have consistently applied a higher standard when reviewing prior restraints

of speech.” Id. at 597. The Benton Court compared the more stringent Davenport

test and the federal test applied to prior restraints under the U.S. Constitution and

found that the gag order at issue there failed even the lower federal standards

articulated in U.S. v. Brown and Gentile v. State Bar of Nevada. See Benton, 238

S.W.3d at 597 (citing U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000) and Gentile v.

State Bar of Nevada, 501 U.S. 1030 (1991)). The Benton court concluded that it

did not need to do an analysis under the Davenport test because the gag order did

23 not meet the federal constitutional minimum requiring the order to be “narrowly-

tailored to avert a substantial likelihood of material prejudice.” Benton, 238

S.W.3d at 597.

Under the federal test applied in Benton, preclusion against all

communication as ordered by Respondent Court would certainly not be consistent

with a “narrowly tailored” order. Id. Here, the Respondent Court made no effort

to determine that all communications “regarding this case,” which the gag order

here prohibits, had the substantial likelihood to cause material prejudice to the

case.

The Respondent Court’s gag order is distinguishable from the gag order

examined in U.S. v. Brown that was ultimately upheld under federal law. Brown,

218 F.3d at 432. Unlike the Respondent Court’s “no comment” gag order on an

elected official, the sua sponte Brown gag order left various avenues of expression

accessible to the elected official, who was under indictment at the time. Id. at 418.

The various avenues of expression included assertions of innocence, general

statements about the nature of an allegation or defense, and statements of matters

of public record. Id. at 429-430. Additionally, the district court imposing the

order made special allowances for Brown’s re-election campaign by lifting most of

the order for the duration of the campaign. Id. at 430. The Brown court ultimately

found that the order provided sufficient guidance regarding the nature of the

24 prohibited comments to survive a constitutional challenge. Id.

In contrast, the Respondent Court in this case has failed to apply any test,

failed to conduct any analysis to narrowly tailor its order, failed to hear any

evidence before entering the order prepared by the defense, and failed to make any

findings justifying the gag order. The decision not to make any findings or

conduct any analysis to support a prior restraint on the free speech rights of an

elected official and more than 40 persons is either outside the Respondent Court’s

authority or is a clear abuse of discretion.

1. The gag order contains no specific findings that an imminent and irreparable harm will deprive litigants of a just resolution of their dispute

Under the first prong of Davenport, the trial court must make “specific

findings supported by evidence” that an imminent and irreparable harm to the

judicial process will deprive litigants of a just resolution of their dispute.

Davenport, 834 S.W.2d at 10. This first prong is based on the state constitutional

preference for post-speech remedies. Id. In Davenport, the Supreme Court

identified several shortcomings with the trial court’s order:

The orders fail to identify any miscommunication that the trial court may have perceived, does not indicate any specific, imminent harm to the litigation, and offers no explanation of why such harm could not be sufficiently cured by remedial action. For instance, had any miscommunication stemmed from improper statements by Relator, as implied by the court, the proper response may have been to sanction her conduct.

25 Id. at 11. Similar to the respondent in Davenport, the Respondent Court here failed

to make any “specific findings” detailing the nature or extent of the pretrial

publicity in the Real Party in Interest’s case or how the pretrial publicity would

adversely impact the right to a fair and impartial jury.

The Respondent Court did not have the authority or discretion to bypass an

examination of the relevant evidence and a determination of whether or not public

statements would cause imminent and irreparable harm to the litigants. Had the

gag order addressed the harm that might occur to the jury trial scheduled two

weeks after the State originally made its request, the Respondent Court would at

least have attempted to comply with the first prong of Davenport. Instead, the gag

order prepared by Defense Counsel and signed by the Respondent Court did not

even attempt to give the illusion that an analysis and finding had been made under

any test designed to protect free speech rights. If the Respondent Court fails to

determine what the harm will be under the first prong of the test, it is logically

impossible to determine the least restrictive means to prevent that harm, because

the harm to the judicial process is undefined. The Respondent Court acted outside

his authority or committed a clear abuse of discretion by issuing a gag order

without making specific findings to support a prior restraint on the parties’ rights to

free expression.

26 2. The gag order is not the least restrictive means to prevent the harm

Similar to the respondent in Davenport, the Respondent Court failed to make

any findings about how and why the gag order is the least restrictive means to

prevent any anticipated harm. Without those findings, the existing gag order is not

narrowly tailored and is comparable to the unconstitutional gag order in

Davenport. The written Davenport gag order summarily stated, in part: “Counsel

is ORDERED to refrain from any public comment, casual or otherwise concerning

the facts of this case or the conduct of counsel in this case other than in a court

hearing.” Davenport, 834 S.W.2d at 6. The Davenport court found, “By stopping

not only the purported miscommunications but any communications, the broadly

worded injunction certainly fails the second part of our test.” Id. at 11. Here, the

Respondent Court’s gag order is a blanket prohibition against communication with

the press or making public comments “regarding this case,” which is essentially

identical to the “any communications” prohibition found in Davenport. Id. There

is no substantive difference between the gag order in Davenport and the gag order

issued by the Respondent Court in the present case. The Respondent Court’s gag

order should be set aside because a blanket prohibition of all communication

necessarily fails the second part of the Davenport test. Id.

The Respondent Court’s gag order is the opposite of “least restrictive” in the

breadth of prior restraint that it places on more than 40 persons. As worded, the

27 gag order would preclude any communication that can be connected to the case in

any way, no matter how tenuous. For example, if opposing counsel made

unfounded allegations in subsequent pleadings in the Real Party in Interest’s cause

number against Relator or any other employee in the District Attorney’s office, the

broad unconstitutional gag order would prevent any public response to said

allegation, no matter how tenuous or far removed such allegations might be from

the facts or law of the underlying case. Thus, the Respondent Court’s gag order

would allow the damage caused by the unfounded but publicized allegations to

stand, causing harm to the elected District Attorney and potentially any other party

who is precluded from publicly responding to the false allegations. In addition, the

existing gag order is so broadly written that it could be construed as applying to

any communication about the contempt proceeding initiated against Relator. Thus,

any attempts by Relator to defend herself publicly or to the press regarding that

proceeding could subject Relator to further contempt proceedings by the

Respondent Court.

It is important to note that while ordering such an expansive gag order, the

Respondent Court failed to include restrictions it had orally mentioned during the

March 31, 2015 hearing, which would have placed specific restrictions on Defense

Counsel’s ability to communicate about their case through the Williamson County

Defense Attorney Association’s list-serve. See Exhibit 15 at 74. The State

28 requested such a restriction due to concerns about communications to the Defense

Association as a “backdoor” around the gag order. Id. at 74-75.

C. The State did not request or agree to the gag order signed by Respondent Court

There has been no request or agreement by the State in this case regarding

the existing gag order. It is uncontroverted that earlier in the process the State

made a general request that a gag order be entered; however, there was no

agreement regarding the necessary findings to be made, the appropriate language

to be used, or the specific gag order that was to be signed by the Respondent Court.

See Appendix 18 at 71-72. The State was not given a reasonable opportunity to be

heard once the gag order was drafted by Defense Counsel. Asking generally for a

gag order and agreeing to the specific terms of such an order are two different

things, because the specific terms of the order, including necessary findings, are

the heart and substance of the order. See discussion infra Part II.C.

Defense Counsel e-mailed the proposed gag order on April 9, 2015, to the

Respondent Court and First Assistant Mark Brunner, and the court signed the order

that same day. See Appendix 2. There was no hearing held on that day. It would

be an absurd result if “agreement” to the terms of a proposed order could be

established by emailing a party a proposed order and then immediately obtaining a

29 judge’s signature on that order without giving the other side a reasonable

opportunity to review the order.

Furthermore, Relator, Jana Duty, stated under oath that the proposed order

was never sent to her and that she was unaware of its existence. See Appendix 18

at 73. Not only was it not sent to her, but the Respondent Court did not send the

State any notice that the court had signed a written gag order.5 Relator further

testified that she believed that a valid gag order, even if it prohibited her from

discussing the facts of the case, would still allow her to respond to accusations that

she violated ethical rules and intentionally withheld evidence. Id. at 35-36.

Relator’s testimony demonstrates the fundamental lack of any agreement between

the parties with respect to the language of the gag order.

Equally telling, the absence of restrictions prohibiting Defense Counsel from

discussing the case with the local defense bar association’s listserv demonstrates

the lack of any agreement regarding the final written gag order. See Appendix 15

at 74-75. Nor does the existing gag order include the State’s proposed restriction

that the parties not discuss the case on social media. Id. at 74. Given this lack of

5 The Respondent Court has a history of not notifying the State of orders the Court has signed. In State of Texas v. Wachtendorf, No. 03-14-00633-CR, 2015 WL 894731 (Tex. App.—Austin Feb. 26, 2015) (pet. granted April 29, 2015, PD-0280-15), recently in the Third Court of Appeals and currently pending before this Court, the Respondent Court signed an order, dated it on the same day it was signed, and then waited to file it with the District Clerk until the time for appeal for the State had passed. Under binding case law at the time of this filing, the State is prevented from an appeal in this instance.

30 agreement as to numerous details, the present gag order should be treated as an ex

parte order or a sua sponte order and not as an agreed order to which both parties

have signed off on the terms.

This case is procedurally similar to Grigsby v. Coker, where one party

requested a gag order (authorized under the family code), but the court did not

enter a written gag order until seven weeks later. Grigsby, 904 S.W.2d at 621.

There, the Texas Supreme Court discussed the abuse of discretion procedurally:

“The faults in this gag order are likely a function of the procedure, or lack of

procedure, used in adopting it: no formal motion, no prior notice, and no formal

hearing or evidence. There is no indication that exigent circumstances warranted

an abbreviation in procedures authorized by section 11.11, when seven weeks

passed between the date the trial court stated it would issue a gag order and the

date the order was signed.” Id. at 621. In the present case, the Respondent Court

did not follow any procedure in entering the gag order, and, as discussed above,

was without authority or discretion to discard the procedure.

Thus, the State did not invite error because it did not request or agree to the

gag order that was signed by the Respondent Court. The fact that the State earlier

requested a different gag order does not constitute a request for this one. To hold

otherwise would be like holding that a general suggestion by the State of the need

for a definition of a term in a jury charge constitutes a request or agreement for a

31 specific, incorrect definition. That cannot be the law. Accordingly, the State has

not waived its right to challenge this gag order by inviting error.

Accordingly, the only way this Court could conclude that the State requested

or agreed to the specific gag order signed by the Respondent Court would be to

find that when 1st Assistant District Attorney Mark Brunner failed to respond

within a few hours to Defense Counsel’s e-mail, the State had thereby “agreed” to

the Order included in that e-mail. Such a conclusion would not only be unfair, it

would be inconsistent with the fact that the gag order drafted by Defense Counsel

and signed by the Respondent Court did not include the restrictions and terms the

State had requested in the preliminary hearings leading up to the order. And

finally, the failure of one of Relator’s employees to respond immediately to an e-

mail simply cannot waive the constitutional rights of Relator or the 40 individuals

affected by this gag order.

D. The gag order signed by the Respondent Court is void and therefore can be attacked by the State irrespective of any prior request or agreement

As explained above, there was never an agreement as to the specific terms or

scope of a gag order, and at no time did Relator, Jana Duty, invite error by

requesting or agreeing to the gag order that the Respondent Court signed and

entered. Even if there had been such a request or agreement, however, the State

would not be precluded from challenging the gag order here.

32 A court, like a public official, should not be permitted to take action contrary

to the constitution. In Ex parte Siebold, the Supreme Court articulated this

principle: “[I]f the laws are unconstitutional and void, the Circuit Court acquired

no jurisdiction of the causes. Its authority to indict and try the petitioners arose

solely upon these laws.” Ex parte Siebold, 100 U.S. 371, 377 (1879). This Court

has applied a similar principle to prior-restraint injunctions, holding: “[W]e

accordingly hold that the court had no power to prohibit the publication of the

testimony of the witnesses in the case, and that his act in punishing the relator for

contempt for violating that order was without jurisdiction, and was consequently

void.” Ex parte Foster, 71 S.W. at 596 (emphasis added). If a court does not have

the power to unconstitutionally enjoin someone, and is thus without jurisdiction to

enforce a gag order, then it must be that the court is without discretion to take

either action.

The Respondent Court had no authority to enter the gag order under the facts

in this case. Not only are unconstitutional injunctions void, they are subject to

even stricter scrutiny than when a court is examining the constitutionality of

statutes. The Texas Supreme Court, in examining whether an injunction violated

free speech rights, summarized, “We are therefore persuaded, as the Supreme

Court has been, that injunctive restrictions must be judged more strictly than

legislative restrictions.” Operation Rescue-Nat’l, 975 S.W.2d at 559. This result

33 is only logical in that an injunction functions as a law would on the persons who

are enjoined. Any action an enjoined person takes in contravention of that

injunction would subject that person to consequences similar to the way that any

action taken in contravention of a statute would subject a person to consequences.

However, unlike a law that has gone through a democratic process to be put in

effect, an injunction is put in effect by one person. Therefore, when a single

government actor puts an injunction in place, and that injunction infringes or

violates the enjoined person’s constitutional rights, a court reviewing that

injunction should judge it more strictly than a legal restriction that was

democratically enacted. Id. at 559. Since Respondent Court had no power to enter

an unconstitutional order, that court should be prohibited from persisting in the

enforcement of an unconstitutional order.

The gag order is therefore void. Thus, even if there had been a specific

request or agreement by the State (which there was not), the gag order entered by

Respondent Court is still void, with no force or effect. If a gag order is

unconstitutional and void, then any agreement to enter that order is likewise void.

See In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, no pet.)

(“A void order has no force or effect and confers no rights; it is a mere nullity . . . .

Thus, a party who agrees to a void order has agreed to nothing.”).

34 Because a gag order is a type of injunction, In re Garza is persuasive. See

Conlin v. Haun, 419 S.W.3d 682, 687 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) ("Our sister court, the Fourteenth Court of Appeals, has followed In re

Garza …. We likewise find In re Garza persuasive and follow it and In re

Corcoran here. Accordingly, the Conlins are not estopped from complaining about

the ‘Agreed Temporary Injunction’ order's failure to comply with the mandatory

requirements of Rule 683.”). In re Garza held that a trial court abuses its

discretion in holding a litigant in contempt for violating a void injunction even

though the litigant had agreed to the specific terms of the injunction entered.

Garza, 126 S.W.3d at 273. That case involved a family business dispute between

Trevino and his cousin Garza. Id. at 269. The trial court entered a temporary

injunction preventing Garza from depleting his assets during litigation. Id. The

trial court ultimately signed a “Judgment of Contempt” after an evidentiary hearing

in which evidence showed Garza borrowed $112,000 against a homestead

protected by the injunction to pay for her legal fees. Id. at 270. The judgment

ordered Garza to effectuate a release of lien and pay Trevino’s attorney’s fees and

costs of the proceedings. Id.

When Garza challenged the validity of the injunction, Trevino argued that

Garza was barred from complaining that the injunction was erroneous because he

had agreed to its precise terms. Id. at 270-271. Trevino argued the general rule

35 that a party may not appeal from or attack a judgment to which he has agreed,

absent proof of fraud, collusion, or misrepresentation. Garza, 126 S.W.3d at 270-

271 (citing Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 720 (Tex.

App.—Corpus Christi 1999, pet. dism’d w.o.j.)). The Garza court determined that

Henke was distinguishable in that the underlying order in Henke was not void,

whereas the Garza injunction was found to be void. Id. at 271.

Stating that “a party who agrees to a void order has agreed to nothing,” the

Garza court held that Garza had not waived her right to attack the void order. Id.

In the present case, the Respondent Court’s void gag order should be treated the

same as the void injunction order in Garza. See Davenport, 834 S.W.2d at 11

(judicially imposed gag orders that are found to be unconstitutional are void). On

this additional basis, Relator has not waived her right to attack the gag order here.

E. Relator and the public are harmed by the unconstitutional gag order

Relator’s constitutional rights are harmed daily, as the gag order silences the

elected District Attorney from responding to allegations against her, regardless of

how false or tenuous they may be. Relator is not just an attorney in private

practice who is mostly outside the realm of public scrutiny. Relator is a

democratically elected official and holds a position in which all of her actions are

judged by the public and have an impact on community safety in Williamson

County. The Respondent Court has not just placed a prior restraint on an

36 individual; he has placed a prior restraint on the free speech rights of an elected

official, within a year of the coming primary election for the position of

Williamson County District Attorney.

Beyond the harm of not being able to defend herself against false

accusations, Relator suffers affirmative harm to her reputation from the void gag

order when the gag order is improperly used to attack her through the vehicle of

contempt. Furthermore, Relator is caught in a “catch-22” in that if she attempts to

respond to allegations against her regarding the void gag order, or responding to

any other allegation of wrongdoing whatsoever, she subjects herself to the

Respondent Court pursuing additional contempt proceedings for violating the void

The Respondent Court made clear his intent to hold Relator in contempt for

violating the gag order on May 8, 2015. See Appendix 17 at 10-11. The

Respondent Court now insists on having another hearing on July 23, 2015, in an

attempt to repeat what occurred on May 8, 2015. See Appendix 10. The mere

allegation of contempt causes damage to an attorney’s reputation. Allegations of

wrongdoing and misconduct against elected officials also cause damage, regardless

of the false nature of the allegations. The fact that the very gag order being used to

find Relator in contempt prevents Relator from responding to false allegations or

correcting misunderstandings in the press further compounds this injury. There is

37 no benefit to allowing the Respondent Court to continue to hold a void gag order

over Respondent’s head by attempting to hold her in contempt for alleged

violations of that order.

Finally, as Relator addressed at the beginning of this petition, the citizens of

Williamson County are harmed when they do not have both sides of the story as it

relates to allegations of wrongdoing against their elected District Attorney and her

staff. Our democracy is contingent upon an informed electorate, and when one of

our elected officials is summarily silenced by an unconstitutional gag order,

democracy suffers. Gentile, 501 U.S. at 1035-36.

PRAYER

The blanket gag order entered by the Respondent Court is unconstitutional

on its face, overly broad, and does not comply with the requirements, recognized in

Davenport, for specific findings and supporting evidence. The existence of such

findings and evidence are essential for the protection of the parties’ free speech

rights under the Federal and Texas Constitutions. For these reasons, Relator asks

this Court to declare the Respondent Court’s April 9, 2015 gag order

unconstitutional and void and order it withdrawn.

38 Respectfully submitted,

/s/ J. Woodfin Jones J. Woodfin Jones State Bar No. 10911700 ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701 Telephone: (512) 482-9300 Facsimile: (512) 482-9303 wjones@adjtlaw.com

/s/ Brent Webster_________________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas 405 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 bwebster@wilco.org

/s/ Eric Gutierrez__________ Eric Gutierrez State Bar No. 24089267 Special Prosecutor Williamson County, Texas 405 MLK Street, #1 Georgetown, Texas 78626

39 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

9, 313 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Brent Webster___________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas 405 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 bwebster@wilco.org

40 CERTIFICATE PURSUANT TO TEX. R. APP. P. 52.3(j)

I have reviewed the foregoing petition and state that the factual statements

therein are supported by competent evidence included in the appendix and/or filed

with the petition.

/s/ Brent Webster__________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas 405 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 bwebster@wilco.org

41 CERTIFICATE OF SERVICE

I hereby certify that on July 15, 2015, I electronically filed the foregoing

document with the clerk of the court for the Court of Criminal Appeals, using the

efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was

sent to the Respondent Court, Hon. Rick J. Kennon, 368th District Court, 405

M.L.K. Street, Georgetown, Texas 78626 at rkennon@wilco.org and to the Real

Party in Interest’s attorneys of record, Kristen Jernigan, 207 S. Austin Ave.,

Georgetown, Texas 78626 at kristen@txcrimapp.com, Ryan Deck, 107 N.

Lampasas, Round Rock, Texas 78664 at ryandecklaw@gmail.com, and R. Scott

Magee, 107 N. Lampasas, Round Rock, Texas 78664 at scott@mageefirm.net.

/s/ Brent Webster___________ Brent Webster State Bar No. 24053545 Assistant District Attorney Williamson County, Texas 405 MLK Street, #1 Georgetown, Texas 78626 Telephone: (512) 943-1234 Facsimile: (512) 943-1255 bwebster@wilco.org

42 No. - -___

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

IN RE JANA DUTY, RELATOR

IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE STATE OF TEXAS, WILLIAMSON COUNTY

APPENDIX AND MANDAMUS RECORD

TRIAL COURT CAUSE NUMBER 13-0826-K277 IN THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS HON. RICK J. KENNON

J. Woodfin Jones Brent Webster State Bar No. 10911700 State Bar No. 24053545 ALEXANDER DUBOSE Assistant District Attorney JEFFERSON & TOWNSEND LLP 405 MLK Street, #1 515 Congress Avenue, Suite 2350 Georgetown, Texas 78626 Austin, Texas 78701 Telephone: (512) 943-1234 Telephone: (512) 482-9300 Facsimile: (512) 943-1255 Facsimile: (512) 482-9303 bwebster@wilco.org wjones@adjtlaw.com APPENDIX AND MANDAMUS RECORD

Applicant’s Pre-Trial Motion for Writ of Habeas Corpus and Request for Hearing...............................................................................................................Tab 1

Gag Order...........................................................................................................Tab 2

State’s Motion to Rescind Unconstitutional Gag Order.....................................Tab 3

Response/Clarification to State’s Motion to Rescind Gag Order.......................Tab 4

State’s Motion to Enter a Constitutional Gag Order..........................................Tab 5

Order Denying State’s Motion to Void Gag Order............................................Tab 6

Notice of Hearing to Show Cause......................................................................Tab 7

Motion to Hold Jana Duty in Contempt.............................................................Tab 8

Affidavit of Judge Rick J. Kennon........................................................Tab 8.1

Jana Duty E-mail, “On-line AAS Story,” May 6, 2015........................Tab 8.2

Austin American Statesman Article, dated May 6, 2015......................Tab 8.3

E-mail Thread, “Re: Harmel,” May 7-8, 2015......................................Tab 8.4

Order to Show Cause..........................................................................................Tab 9

Amended Order to Show Cause.......................................................................Tab 10

Kennon E-mail to Parties, June 27, 2015.........................................................Tab 11

1st Memorandum Opinion, In re Jana Duty, 3rd Court of Appeals...................Tab 12

2nd Memorandum Opinion, In re Jana Duty, 3rd Court of Appeals..................Tab 13

Reporter’s Records Reporter’s Record, Status Hearing, March 20, 2015.......................................Tab 14 Reporter’s Record, Motion to Disqualify, March 31, 2015............................Tab 15

Reporter’s Record, Motion to Disqualify DA, April 8, 2015..........................Tab 16

Reporter’s Record, Contempt of Court, May 8, 2015......................................Tab 17

Reporter’s Record, Writ Hearing, May 29, 2015.............................................Tab 18

State Statutes Tex. Crim. Proc. Code art. 4.04………............................................................Tab 19

Tex. Crim. Proc. Code art. 44.01......................................................................Tab 20

Tex. R. App. P. Rule 72...................................................................................Tab 21

Constitutions Tex. Const. art. I, § 8........................................................................................Tab 22

Tex. Const. art. V, § 5......................................................................................Tab 23

U.S. Const. amend. I.........................................................................................Tab 24 15 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00320-CV

In re Jana Duty

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

M E M O R AN D U M O P I N I O N

PER CURIAM

The petition for writ of mandamus is denied and the emergency motion for temporary

relief is dismissed as moot. See Tex. R. App. P. 52.8(a).

Before Chief Justice Rose, Justices Goodwin and Field

Filed: May 28, 2015 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00360-CV

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

Filed: June 17, 2015 State v. Harmel 13-0826-K277 3/20/2015

Page 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 13-0826-K277 STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) WILLIAMSON COUNTY, TEXAS ) CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT

_____________________________________________ STATUS HEARING _____________________________________________

On the 20th day of March, 2015, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Rick J. Kennon, Judge Presiding, held in Georgetown, Williamson County, Texas. Proceedings reported by computerized stenotype machine.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

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

Page 2 1 APPEARANCES 2 Ms. Jana Duty 3 SBOT NO. 24000244 -and- 4 Mr. Mark Brunner SBOT NO. 24006917 5 -and- Mr. Brent Edward Webster 6 SBOT NO. 24053545 Williamson County District Attorney 7 405 Martin Luther King Suite 1 8 Georgetown, Texas 78626 Telephone: (512) 943-1234 9 COUNSEL FOR THE STATE 10 11 Ms. Kristen Jernigan SBOT NO. 90001898 12 Law Office of Kristen Jernigan 2007 South Austin Avenue 13 Georgetown, Texas 78626 Telephone: (512) 904-0123 14 E-mail: Kristen@txcrimapp.com COUNSEL FOR THE DEFENSE 15 16 Mr. Ryan Herbert Deck SBOT NO. 24040781 17 The Office of Ryan Deck 107 N. Lampasas Street 18 Round Rock, Texas 78664 Telephone: (512) 251-8920 19 E-mail: Ryandecklaw@gmail.com COUNSEL FOR THE DEFENSE 20 21 Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 22 R. Scott Magee, Attorney At Law 107 N. Lampasas Street 23 Round Rock, Texas 78664 Telephone: (512) 983-1675 24 E-mail: Scott@mageefirm.net COUNSEL FOR THE DEFENSE 25

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Page 3 1 VOLUME 1 2 Status Hearing 3 March 20, 2015 4 PAGE VOL. 5 Reporter's Certificate ...........................32 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 24 1 MR. BRUNNER: I just figured it's the same 2 issue on both sides, Your Honor. 3 THE COURT: I agree. 4 MR. BRUNNER: Last, Your Honor, and I'm 5 sure everyone is happy to hear me say that, as they 6 always are when I'm in court standing up, is the issue 7 of -- of the gag order. I think this is -- you know, we 8 had a motion filed by the State this week, and then, you 9 know, here it is 15 days before trial, they file a 10 motion, and then the first impulse is -- filing a 11 motion, wonderful. They are entitled to a defense. 12 Mr. Harmel is entitled to a defense -- a vigorous 13 defense. They're not required to lay over and let us 14 steamroll them; however, the first impulse being, right 15 after it's filed, let's call a press -- issue a press 16 release. 17 That is fraught with peril because it puts 18 us in this position of we either don't respond and let 19 it sit there or respond. If I over-respond or someone 20 else over-responds, then, you know, they may be 21 facing -- just talking hypothetically here, not talking 22 about this crew -- hypothetically, someone says the 23 wrong thing to the press, if they're the Defense, the 24 worst that can happen to them is maybe an ethical 25 violation and maybe a chewing out by the Judge.

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Page 25 1 The worst thing that can happen to the 2 State, if we start over-talking to the press, is a 3 mistrial with prejudice, prosecutorial misconduct. 4 That's basically a gun to our heads. 5 And so when talking to the press, the 6 press has a job to do, and they do headlines like they 7 had this week in court, quote, "Prosecutor lied about 8 evidence" 12 days before trial, you know -- 9 THE COURT: That was a headline in the 10 paper? 11 MR. BRUNNER: Yes, Your Honor. 12 THE COURT: American Statesman? 13 MR. BRUNNER: Yes, Your Honor. 14 MS. DUTY: Yes. 15 THE COURT: I saw you guys on TV I guess 16 two days ago -- or two nights ago, which tells me that 17 the press was notified pretty quickly, since they were 18 here, I think, within an hour of the time it was filed. 19 MR. BRUNNER: Your Honor, that's how I 20 heard about this, not from Defense counsel. Maybe they 21 sent me an e-mail and I wasn't watching, but I heard it 22 from the press first. 23 THE COURT: Okay. 24 MR. BRUNNER: And, Your Honor, it's just 25 we don't want to turn this into -- we can't control the

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Page 26 1 press. You can't control the press, we can't, Defense 2 can't. You can control our actions, but I don't want 3 this to turn into a dual of who can say what, snakily, 4 to the press. 5 We can have a situation where, you know, 6 someone walks up to, let's say, hypothetically, 7 Mr. Deck, or another member of the Defense team: Ryan, 8 do you like Slurpees? Do you prefer Slurpees, or do you 9 like -- do you like Icees? Slurpees or Icees? 10 Mr. Deck may say, You know what? I prefer 11 Icees. 12 To have someone overhear that -- 13 MR. MAGEE: Your Honor, I'm going to 14 object to this. We're having a hearing. 15 MR. BRUNNER: This is -- no. No. 16 THE COURT: Go ahead. Go ahead. 17 MR. BRUNNER: And they said, I heard 18 Mr. Deck said he likes ISIS. 19 And so the headline is -- they file an 20 affidavit and the headline is, quote, "? Defense 21 attorney supports Jihad terrorists?" 22 How is he going to respond to that? He's 23 going to pick up the phone and tell the media, That's 24 bunk. 25 Okay? Just as, you know, if -- my first

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

Page 27 1 impulse when the headline is "Prosecutor lies about 2 evidence" is to pick up the phone and say, That's wrong. 3 And if one of us says the wrong thing, we 4 are jeopardizing the flow of the trial. 5 So what I'm asking for, Your Honor, is if 6 we can just stop this -- 7 THE COURT: How restrictive of a gag order 8 do you want? 9 MR. MAGEE: Well, Your Honor, that's it; 10 is there a legal standard we're addressing here? 11 Because I've never heard -- I haven't heard anything. 12 What are we talking about? I mean, that's all very 13 entertaining. 14 MR. BRUNNER: I'm talking about a gag 15 order. 16 MR. MAGEE: That's all very entertaining 17 and comical, and I get that. But we sent out a press 18 release, and we take our queues from -- you know, the 19 State sends out press releases all the time. I don't 20 hear them complaining about press releases then. 21 So, you know, with us, we're just making 22 sure what we give out is very careful. That's why we 23 did a press release, because we wanted to be careful. 24 That's all very entertaining, but what legal standard 25 are we addressing here?

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Page 28 1 MR. BRUNNER: Your Honor, you have control 2 over the flow of information from this court, and you 3 have the authority to order the parties to not discuss 4 this case with the media, to not make any postings with 5 the media. I'm not looking for sanctions or ribbing 6 them, Your Honor, for doing what they did. 7 THE COURT: Okay. Let me do this. Looks 8 like we have another issue to take up on the 31st. But 9 what I can do between now and then is, let's not have 10 any discussions with the media until the 31st. And if 11 you want to present a whole big, giant issue about what 12 type of a gag order, how restrictive it needs to be, I'm 13 fine with dealing with that. 14 I can understand -- I have some problems 15 with that headline. That being said, I don't know where 16 the person got the headline. And, I agree, I know how 17 the media is, they're going to do whatever they can do 18 to sell newspapers or get on the news. 19 So I have some concerns with that 20 particular headline, if that's all it said. I mean, if 21 it said, "Defense claims based on the motion" -- I can 22 understand if they quoted something that was in the 23 motion that was filed. That's a little different than 24 "State withholds evidence." 25 And I think it's very important, and I

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Page 29 1 think we addressed this a little bit at the last 2 trial -- on the mistrial, is because of the history of 3 Williamson County, people are looking at this county I 4 guess much more severely than they might some other 5 counties just because of the things that have gone on 6 over the last several years. And so we do need to be 7 careful with that, and I don't think it's appropriate 8 that derogatory comments are made about other attorneys 9 involved in cases, including this one, but any case, to 10 tell you the truth. And so we need to make sure that 11 that's -- that everybody stays within those ethical 12 guidelines. 13 But at this point in time, let's not have 14 any conversations or discussions with the media, and on 15 the 31st of March, we will deal with that issue and see 16 if we need to have some kind of permanent order dealing 17 with that restriction. Anything else today? 18 MR. MAGEE: Not from the Defense, 19 Your Honor. 20 MR. BRUNNER: (Shakes head.) 21 THE COURT: Okay. Now, next question is, 22 based on all these new things that we have to deal with, 23 are we going to be able to do this in a day, or do we 24 need to go into the next day? And it doesn't matter if 25 we do.

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Page 30 1 MS. JERNIGAN: I still think we can 2 probably get it done in a day. 3 THE COURT: Okay. And my concern is, if 4 we don't, we will be into April Fools' Day. 5 Mr. Brunner, I know that's an issue. 6 MR. BRUNNER: Just another day for me, 7 Your Honor. It's not a Holy Day of Obligation or 8 anything, even in my household. Your Honor, it's -- no. 9 I'm very confident we can get this all resolved in one 10 day. 11 THE COURT: Okay. Good deal. 12 MR. BRUNNER: And I literally didn't see 13 in the red file -- in the -- sorry, not in the red file, 14 but in the clerk's summary on the computer that 15 Ms. Jernigan was appointed. Trust me, I looked for it. 16 It wasn't there, or at least I didn't see it. So I 17 wasn't trying to mischaracterize that she wasn't 18 appointed by the Court. 19 THE COURT: No. I'm fine with that. I 20 remembered that she was. 21 MR. MAGEE: It was an Ake motion, which is 22 permitted by law. And so now, here we are. It's under 23 Ake Motions of Oklahoma. 24 MR. BRUNNER: Okay. I just thought she 25 was volunteering out of the charity of her heart.

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Page 31 1 THE COURT: She's like that. 2 MR. BRUNNER: Yeah. That's fine. Good to 3 know. Okay. 4 THE COURT: Okay. Thank y'all. 5 MR. BRUNNER: Thank you, Your Honor. 6 THE COURT: Anything comes up between now 7 and then, let me know. 8 MR. MAGEE: Thank you, Your Honor. 9 (2:31 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 32 1 STATE OF TEXAS 2 COUNTY OF WILLIAMSON 3 I, SIMONE M. WRIGHT, Official Court Reporter in and 4 for the 368th District Court of Williamson County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court 11 or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $121.60 and was 17 paid/will be paid by Williamson County. 18 WITNESS MY OFFICIAL HAND on this, the 26th day of 19 May, 2015. 20 /s/Simone M. Wright___ 21 SIMONE M. WRIGHT, CSR Texas CSR 3266 22 Official Court Reporter 368th District Court 23 Williamson County, Texas 405 Martin Luther King, Box 8 24 Georgetown, Texas 78626 Telephone: (512) 943-1280 25 Job No. 161 Expiration: 12/31/2016

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Page 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 13-0826-K277 STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) WILLIAMSON COUNTY, TEXAS ) CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT

_____________________________________________ PRETRIAL HEARING Motion to Disqualify Defense Counsel Motion to Disqualify DA's Office Motion to Preserve Evidence _____________________________________________

On the 31st day of March, 2015, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Rick J. Kennon, Judge Presiding, held in Georgetown, Williamson County, Texas. Proceedings reported by computerized stenotype machine.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

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

Page 2 1 APPEARANCES 2 Ms. Jana Duty SBOT NO. 24000244 3 -and- Mr. Mark Brunner 4 SBOT NO. 24006917 Williamson County District Attorney 5 405 Martin Luther King Suite 1 6 Georgetown, Texas 78626 Telephone: (512) 943-1234 7 Counsel for the State 8 9 10 Ms. Kristen Jernigan SBOT NO. 90001898 11 Law Office of Kristen Jernigan 2007 South Austin Avenue 12 Georgetown, Texas 78626 Telephone: (512) 904-0123 13 E-mail: Kristen@txcrimapp.com COUNSEL FOR THE DEFENSE 14 15 Mr. Ryan Herbert Deck SBOT NO. 24040781 16 The Office of Ryan Deck 107 N. Lampasas Street 17 Round Rock, Texas 78664 Telephone: (512) 251-8920 18 E-mail: Ryandecklaw@gmail.com COUNSEL FOR THE DEFENSE 19 20 Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 21 R. Scott Magee, Attorney At Law 107 N. Lampasas Street 22 Round Rock, Texas 78664 Telephone: (512) 983-1675 23 E-mail: Scott@mageefirm.net COUNSEL FOR THE DEFENSE 24 25

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Page 3 1 VOLUME 1 2 Pretrial Hearing 3 March 31, 2015 4 PAGE VOL. 5 Announcements .....................................4 1 6 Ruling on Motion to Disqualify Defense Counsel 11 1 7 Ruling (RESERVED) on Motion to Disqualify DA .....67 1 8 Ruling on Motion to Preserve Evidence ............73 1 9 Gag Order Issued .................................74 1 10 Adjournment .....................................76 1 11 Reporter's Certificate ...........................77 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 74 1 bring it up on the 7th. 2 THE COURT: That's fine. Okay. If it 3 doesn't -- isn't a problem, then turn it over by 4 tomorrow. 5 MR. BRUNNER: Right, Your Honor. If 6 there's any problems, we'll come to you, all of us. 7 THE COURT: The next issue is the gag 8 order. Is anyone opposed to a gag order? 9 MS. JERNIGAN: We're not, Judge. 10 MS. DUTY: No. 11 MR. BRUNNER: Not at all. 12 THE COURT: Oh, good. That makes it easy. 13 Okay. So -- 14 MR. BRUNNER: We'll do one thing easy for 15 you, Your Honor. 16 THE COURT: That's true. At one point -- 17 so what we're doing from this point forward, then, 18 no one should talk to the media about this case for any 19 reason. That also means don't post anything on Facebook 20 or any of those other social media outlets. 21 MR. DECK: Judge, the one thing I would 22 say is sometimes we do post updates to our own Listserv, 23 the defense attorney Listserv, just do updates amongst 24 lawyers. We've done that. I assume that's not a 25 problem?

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Page 75 1 MR. BRUNNER: Your Honor, that's -- 2 THE COURT: And I'm assuming that's 3 accessible to the public in general? 4 MS. JERNIGAN: No. 5 MR. DECK: Just like what happened today, 6 what's in public, what everyone saw today, not every 7 lawyer was here, they ask for updates, and we say, Hey, 8 this is what happened. 9 MR. BRUNNER: Your Honor, that's -- 10 THE COURT: I'd rather not. 11 MR. BRUNNER: That's a backdoor way of 12 just getting information out. I'm not saying that 13 that's bad intent from State -- I mean, from Defense -- 14 old habits die hard; excuse me, gentlemen -- but just 15 it's spreading word that can just be dropped right out 16 to the world. 17 MR. MAGEE: Well, and, likewise, I don't 18 think you should be able to send your employees to go 19 talk to the media, either, you know. 20 THE COURT: Well, I agree. When I say 21 this, this applies to your employees, anyone else you 22 have hired, it applies to the DA's Office and anybody 23 that's hired or with the DA's Office. And that solves 24 the problem; nobody is talking to the media, then we 25 don't have to worry about it. Okay?

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Page 76 1 Someone draft me an order. 2 MR. BRUNNER: Sounds good, Judge. 3 THE COURT: Ms. Jernigan, you draft that 4 order. 5 MS. JERNIGAN: I'll take care of that, 6 Your Honor. 7 THE COURT: Okay. And so at this point in 8 time, then, we'll come back on the 7th, I'll review all 9 the cases that have been presented and any briefs by 10 April 6th -- is that right? Yeah -- April 6th, and then 11 we'll be back here on the 7th at 9:00 to decide what 12 else is going to happen. 13 Okay. Thank y'all. 14 (Proceedings adjourned, 11:01 a.m.) 15 16 17 18 19 20 21 22 23 24 25

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Page 77 1 STATE OF TEXAS 2 COUNTY OF WILLIAMSON 3 I, SIMONE M. WRIGHT, Official Court Reporter in and 4 for the 368th District Court of Williamson County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court 11 or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $324.00 and was 17 paid/will be paid by The State. 18 WITNESS MY OFFICIAL HAND on this, the 4th day of 19 April, 2015. 20 /s/Simone M. Wright 21 SIMONE M. WRIGHT, CSR Texas CSR 3266 22 Official Court Reporter 368th District Court 23 Williamson County, Texas 405 Martin Luther King, Box 8 24 Georgetown, Texas 78626 Telephone: (512) 943-1280 25 Job No. 149 Expiration: 12/31/2016

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1801ae93-ae67-4241-b14b-9a101fe9167b State v. Harmel 13-0827-K277 4/8/2015

Page 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 13-0826-K277 STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) WILLIAMSON COUNTY, TEXAS ) CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT

_____________________________________________ PRETRIAL HEARING Motion to Disqualify District Attorney _____________________________________________

On the 8th day of April, 2015, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Rick J. Kennon, Judge Presiding, held in Georgetown, Williamson County, Texas. Proceedings reported by computerized stenotype machine.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

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

Page 2 1 APPEARANCES 2 Ms. Jana Duty 3 SBOT NO. 24000244 -and- 4 Mr. Mark Brunner SBOT NO. 24006917 5 -and- Mr. Brent Edward Webster 6 SBOT NO. 24053545 Williamson County District Attorney 7 405 Martin Luther King Suite 1 8 Georgetown, Texas 78626 Telephone: (512) 943-1234 9 COUNSEL FOR THE STATE 10 Ms. Kristen Jernigan 11 SBOT NO. 90001898 Law Office of Kristen Jernigan 12 2007 South Austin Avenue Georgetown, Texas 78626 13 Telephone: (512) 904-0123 E-mail: Kristen@txcrimapp.com 14 COUNSEL FOR THE DEFENSE 15 Mr. Ryan Herbert Deck 16 SBOT NO. 24040781 The Office of Ryan Deck 17 107 N. Lampasas Street Round Rock, Texas 78664 18 Telephone: (512) 251-8920 E-mail: Ryandecklaw@gmail.com 19 COUNSEL FOR THE DEFENSE 20 Mr. Randall Scott "Scott" Magee 21 SBOT NO. 24010204 R. Scott Magee, Attorney At Law 22 107 N. Lampasas Street Round Rock, Texas 78664 23 Telephone: (512) 983-1675 E-mail: Scott@mageefirm.net 24 COUNSEL FOR THE DEFENSE 25

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

Page 3 1 VOLUME 1 2 Pretrial Hearing 3 April 8, 2015 4 PAGE VOL. 5 Announcements .....................................4 1 6 Argument by Ms. Jernigan ..........................5 1 7 Argument by Mr. Brunner ..........................14 1 8 Argument by Mr. Webster ..........................28 1 9 Argument by Ms. Duty .............................54 1 10 Court's Ruling ...................................76 1 11 Instruction to John Prezas .......................89 1 12 Instruction that gag order remain in place .......89 1 13 Adjournment .....................................89 1 14 Reporter's Certificate ...........................90 1 15 16 17 18 19 20 21 22 23 24 25

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Page 89 1 From this point forward, I guess until the 2 13th, Mr. Prezas, you're still off this case. 3 MR. BRUNNER: Your Honor, the gag order is 4 still in effect? 5 THE COURT: Yes. 6 MR. BRUNNER: Thank you, Your Honor. 7 THE COURT: I never got an order. 8 MR. BRUNNER: You said it. 9 THE COURT: I know, but I don't have a 10 written order. 11 Thank y'all. 12 (Proceedings adjourned, 3:46 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25

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

Page 90 1 STATE OF TEXAS 2 COUNTY OF WILLIAMSON 3 I, SIMONE M. WRIGHT, Official Court Reporter in and 4 for the 368th District Court of Williamson County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court 11 or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $342.00 and was 17 paid/will be paid by Williamson County. 18 WITNESS MY OFFICIAL HAND on this, the 10th day of 19 April, 2015. 20 /s/Simone M. Wright 21 SIMONE M. WRIGHT, CSR Texas CSR 3266 22 Official Court Reporter 368th District Court 23 Williamson County, Texas 405 Martin Luther King, Box 8 24 Georgetown, Texas 78626 Telephone: (512) 943-1280 25 Job No. 150 Expiration: 12/31/2016

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340dd04f-b37a-42f8-9b5f-53e02b9b2f76 State v. Harmel 13-0826-K277 5/8/2015

Page 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 13-0826-K277 STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) WILLIAMSON COUNTY, TEXAS ) CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT

_____________________________________________ CONTEMPT OF COURT _____________________________________________

On the 8th day of May, 2015, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Rick J. Kennon, Judge Presiding, held in Georgetown, Williamson County, Texas. Proceedings reported by computerized stenotype machine.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

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

Page 2 1 APPEARANCES 2 Ms. Jana Duty (NOT PRESENT) 3 SBOT NO. 24000244 -and- 4 Mr. Mark Brunner SBOT NO. 24006917 5 -and- Mr. Brent Edward Webster 6 SBOT NO. 24053545 Williamson County District Attorney 7 405 Martin Luther King Suite 1 8 Georgetown, Texas 78626 Telephone: (512) 943-1234 9 COUNSEL FOR THE STATE 10 11 Ms. Kristen Jernigan SBOT NO. 90001898 12 Law Office of Kristen Jernigan 2007 South Austin Avenue 13 Georgetown, Texas 78626 Telephone: (512) 904-0123 14 E-mail: Kristen@txcrimapp.com COUNSEL FOR THE DEFENSE 15 16 Mr. Ryan Herbert Deck SBOT NO. 24040781 17 The Office of Ryan Deck 107 N. Lampasas Street 18 Round Rock, Texas 78664 Telephone: (512) 251-8920 19 E-mail: Ryandecklaw@gmail.com COUNSEL FOR THE DEFENSE 20 21 Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 22 R. Scott Magee, Attorney At Law 107 N. Lampasas Street 23 Round Rock, Texas 78664 Telephone: (512) 983-1675 24 E-mail: Scott@mageefirm.net COUNSEL FOR THE DEFENSE 25

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

Page 3 1 VOLUME 1 2 Contempt of Court 3 May 8, 2015 4 PAGE VOL. 5 Judge finds Ms. Duty in contempt of court ........11 1 6 Adjournment .....................................16 1 7 Reporter's Certificate ...........................17 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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

Page 4 1 (Open court, 10:41 a.m.) 2 THE COURT: Okay. I'm going to call this 3 under the Harmel case number only because I don't have 4 another case number to call it under right now. It's 5 Cause No. 13-0826-K277, State of Texas versus Crispin 6 Harmel. Where is Ms. Duty? 7 MR. BRUNNER: The State's here, 8 Your Honor. 9 THE COURT: Where is Ms. Duty? That's the 10 question I asked you. I need an answer. 11 MR. BRUNNER: I don't know. She's not -- 12 THE COURT: Really? Because she sent me 13 an e-mail yesterday that said she would clear her 14 schedule and be here at any time of the day that we 15 schedule it. I sent an e-mail to all counsel, including 16 Ms. Duty, to be here at 10:30. Where is she? 17 MR. BRUNNER: She's not in this room. 18 THE COURT: Okay. Then here's what we're 19 going to do. We're not going to have this little 20 proceeding right now. What we're going to do -- I have 21 two options: You can get ahold of her and you can get 22 her here, or I will issue a capias and I will get her 23 here. Which do you prefer? 24 MR. BRUNNER: I'll try to get ahold of 25 her, Your Honor.

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

Page 5 1 THE COURT: Get on it. 2 MR. BRUNNER: Can you tell me what this 3 hearing is for? 4 THE COURT: Do what? 5 MR. BRUNNER: Can you tell me what this 6 hearing is for? 7 THE COURT: You'll know when she shows up. 8 MR. BRUNNER: Okay. Thank you, Your 9 Honor. 10 (Recess from 10:42 to 11:09) 11 (Open court) 12 THE COURT: We're back on the record. 13 Mr. Brunner, were you able to contact Ms. Duty? 14 MR. BRUNNER: I was, Your Honor. 15 THE COURT: And? 16 MR. BRUNNER: I let her know what you said 17 earlier and that her presence was requested in court. 18 She said that she didn't -- she didn't think the e-mail 19 said that she would for sure be here, that she was 20 trying to clear her schedule, that she didn't know -- 21 not knowing what this hearing was about, she didn't -- 22 she said words to the effect of, you know, "If the Court 23 is not going to give me the respect to let me know what 24 this is about, there's no need to be there." The State 25 is going to be represented by us.

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

Page 6 1 THE COURT: So bottom line is, she's not 2 coming? 3 MR. BRUNNER: I don't know that, Judge. 4 THE COURT: Okay. Well, we're starting, 5 and she's not here. 6 MR. BRUNNER: Okay. 7 THE COURT: Okay. For the record, 8 yesterday afternoon, I sent an e-mail to all counsel -- 9 and sorry, Ms. Jernigan, you weren't involved with kind 10 of everything that was going on, and I forgot to put you 11 on the list, although I assumed that you would be 12 notified -- that indicated that I was trying to get 13 everyone to come in on Monday. However, I understood 14 that Ms. Duty was going to be out of town on Monday for 15 a funeral or something. And so I didn't want to wait 16 till the end of next week, and so I requested that we do 17 this today. 18 I received responses back. The defense 19 indicated they were available after 10:00. Ms. Duty 20 sent me an e-mail at 5:51 p.m. stating that she would be 21 glad to rearrange her schedule for today. However, she 22 would like some notice as to what it was about. 23 I indicated at the time that I didn't 24 think it would take more than 10 or 15 minutes for the 25 hearing -- that was in the first e-mail -- but it was

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

Page 7 1 pretty clear that I needed all counsel here today. 2 I responded to that e-mail, including 3 everyone, that said to meet in my courtroom at 4 10:30 a.m. this morning. 5 The reason that we were here today, and it 6 doesn't really have anything to do with the murder 7 trial, per se, as far as facts or discovery or forensics 8 or any of this other mess. What we're here today to do 9 is to address some issues that I think have come to a 10 head this week regarding the disrespect to fellow 11 attorneys and to the Court that I have observed. 12 When I started back in November of 2013, I 13 expected some testing, being a new judge. And 14 initially, there was some conduct that I felt was a 15 little over the line. But, unfortunately, it's gotten 16 worse since that point in time. 17 Now I think it's to the point that we need 18 to get something -- that we need to do something about 19 it. And I will tell you, this comes both from the DA's 20 office as well as from the criminal defense bar, and 21 also, to some extent, from the civil and the family law 22 bar, although not as much because they're really not in 23 court as much as the others. 24 I will tell you, Mr. Brunner -- and this 25 obviously needs to go to Ms. Duty, as well -- that

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

Page 8 1 respect flows downhill. In the DA's office, the 2 employees and the assistant DAs will follow the lead of 3 Ms. Duty as the elected DA and you as the first 4 assistant. If you don't show respect for the other 5 attorneys or the Court, then neither will your staff or 6 the other attorneys that work in your office. And I 7 don't want you to think I'm just picking on the DA's 8 office. Because even though it seems to be more 9 prevalent there, at least in the last months or so, 10 Mr. Magee, you were way out of line earlier this week in 11 the way that you dealt with Mr. Webster. I understand 12 that you have extended an apology to Mr. Webster, and 13 you also apologized to the Court. And I appreciate 14 that, but we never should have ever gotten to that 15 point. 16 To me, this case has gotten completely out 17 of hand. It seems that all the attorneys want to make 18 this some personal game among the lawyers, and that's 19 not what it is. This is a case about the DA trying to 20 put together evidence in their case to prosecute and 21 convict a guy that they believe committed murder. From 22 the defense side, it's about trying to get a fair trial 23 for Mr. Harmel and do whatever they can to present the 24 best defense possible and get an acquittal for their 25 client. That's what you're here to do. It's not about

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

Page 9 1 the lawyers. 2 The family and friends of the victim in 3 this case don't care if you like each other. The 4 defendant's family doesn't care if you like each other. 5 But they do care when the conduct jeopardizes the 6 integrity of the court proceedings and it takes away 7 from what this case is really about. 8 Everybody at some point in their career, 9 when they try cases, gets involved in a case that 10 becomes somewhat personal, for whatever reason that may 11 be. However, as attorneys, you can't let that dictate 12 how you deal with each other, you can't allow that to 13 cause you to act disrespectful to each other, and 14 definitely can't allow that to cause you to fail to 15 follow the proper protocol in court. 16 As attorneys, you are held to a higher 17 standard. Your clients expect it, the other lawyers 18 expect it, the State Bar expects it, and I expect it. 19 The main reason we ended up here today is, 20 back a few weeks ago, actually, on April 9th, 2015, when 21 we were here in court, Mr. Brunner, you asked and made a 22 request from the Court that a gag order be put in place, 23 and the defense actually agreed to it. I signed that 24 order on April 9th, 2015 that states, "The parties, 25 attorneys, and employees of the attorneys in this case

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

Page 10 1 are prohibited from communicating with the press/media 2 regarding this case or publicly commenting on this case 3 during the pendency of the proceedings." 4 Unfortunately, there's been a violation of 5 that court order. And Ms. Duty on Wednesday of this 6 week sent me an e-mail indicating that she intended to 7 violate that order by contacting the Austin 8 American-Statesman to, quote, "defend" herself regarding 9 an article that had something to do with the pleadings 10 that were filed by the defense in this case. 11 I kind of hoped that she would think a 12 little better of that and not follow through with it, 13 but yesterday I received a copy of an article by, I 14 think, Ms. Osborne with the American-Statesman that 15 appears to have several quotes from Ms. Duty about the 16 case and about the filings that were made by the 17 defense. 18 This is in direct violation of the order 19 that was put into place. And, unfortunately, it was put 20 in place at the State's request. And, yet, even though 21 they got what they wanted, they continued to violate 22 that order. 23 I generally probably wouldn't have thought 24 much of it, other than to admonish the attorneys to 25 comply with the court order, but it's not this one

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

Page 11 1 instance. In the last several months there's been 2 multiple incidences about disrespect to the Court, one 3 in particular about what appears to be a 4 misrepresentation to another district judge about the 5 status of contact with witnesses -- I'm sorry -- with 6 victims that may very well have affected the plea or the 7 sentence in that case. And now I've got a direct 8 violation of the court order from the elected DA. 9 So that's one of the reasons why I 10 needed -- or wanted Ms. Duty here. I don't think I 11 necessarily have to have her here, that's why we're 12 proceeding forward today. And so I believe that 13 Ms. Duty's conduct constitutes contempt of court, and 14 it's a direct violation of the Court's orders. 15 And my understanding -- I've looked at a 16 couple different things, and the procedure, I 17 understand, is a little different, depending on how you 18 look at it. One procedure is, Judge Stubblefield would 19 need to appoint a judge to review the contempt issue, a 20 special prosecutor would have to be appointed, and then 21 a hearing would be held to determine whether or not 22 Ms. Duty's conduct would be considered in contempt of 23 court, and then a punishment would be assessed. 24 The other option indicates that I would 25 need to go ahead and make a finding of contempt and

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

Page 12 1 issue a punishment and then, if Ms. Duty wanted to 2 contest that, then that process would go into place and 3 a judge and a special prosecutor would be appointed. 4 Because Ms. Duty is not here, that 5 probably doesn't matter. So at this point, what I'm 6 going to do is, I do find that her conduct was in 7 violation of -- direct violation of a court order by 8 violating the April 9th, 2015 order prohibiting contact 9 with the press or the media. And because of that, I 10 will submit an affidavit and I will talk to 11 Judge Stubblefield and we will get the proper procedure 12 started, and appropriate notice will be sent to everyone 13 involved. 14 It's unfortunate that we've come to this. 15 You know, I've been a judge for, what, a year and a 16 half, a little over that, and I really never thought 17 that there would be an issue to come up to where I would 18 have to deal with contempt of an attorney, especially an 19 elected official. But, unfortunately, I don't see any 20 other choice. The fact that she's not here today kind 21 of tells me that I'm doing the right thing because she 22 doesn't believe and doesn't respect the Court or the 23 other attorneys involved that I -- from what I can 24 tell -- although, I will say that a lot of -- she's 25 acted a little more civilly than a lot of people have in

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

Page 13 1 this case. But the fact that she's not here tells me 2 that she has no respect for this Court. And so she can 3 deal with that in another proceeding at another time. 4 I hope that people can learn a lesson, 5 that you guys can act respectfully to each other, 6 respectful to the Court, and just act like lawyers. 7 We're adjourned. 8 MR. BRUNNER: Your Honor, if I may, off 9 the record or on the record? 10 THE COURT: I don't really need a 11 response. But if you really think you have to, go 12 ahead. 13 MR. BRUNNER: Well, if I didn't think I 14 had to, I wouldn't be talking right now, Your Honor. 15 MR. MAGEE: Are we on the record? 16 THE COURT: Yes, we're on the record. 17 MR. BRUNNER: Just a clarification, 18 because I have to relay this to someone who is not in 19 the room right now. Was this a finding of contempt, 20 Your Honor? 21 THE COURT: That's the question. I've 22 found two different procedures: One indicated that I 23 need to submit an affidavit with a different judge to 24 review. If that judge felt that there was sufficient 25 grounds, I guess, to hold a hearing, that judge would

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

Page 14 1 then issue a show cause order -- 2 MR. BRUNNER: Correct. 3 THE COURT: -- and a hearing would be 4 held. 5 MR. BRUNNER: Correct. 6 THE COURT: I've also seen other 7 procedures where it says I actually need to make a 8 finding of contempt and issue a punishment. And then at 9 that point, if Ms. Duty wanted to appeal that or contest 10 that, then that procedure would go into place and a 11 judge would be appointed and a special prosecutor would 12 be appointed and they would go through that procedure at 13 that point in time. 14 MR. BRUNNER: Your Honor, I'm not trying 15 to say my research trumps yours, but based on my short 16 research on this issue, I think the first path may be 17 the more legally safer path. 18 THE COURT: And you may be correct. And 19 that's kind of what my plan is at this point in time, 20 primarily because Ms. Duty is not here. 21 MR. BRUNNER: Okay. 22 THE COURT: And I will prepare an 23 affidavit, I will talk to Judge Stubblefield, we'll get 24 a judge appointed, and then a hearing at some point in 25 time will be conducted and that judge can deal with it.

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

Page 15 1 It's not my issue at that point. 2 MR. BRUNNER: Your Honor, just while we've 3 got everybody here, I think the -- the spirit of the gag 4 order was to not just start leaking prejudicial 5 information all over the place and to -- I think 6 Ms. Duty's frustrations stem from the fact of using 7 pleadings as a de facto way to just kind of like -- 8 instead of file for a motion for continuance, it's yet 9 another: "Oh, my gosh, we've just uncovered yet another 10 vast conspiracy. Won't they please stop doing this. 11 P.S. We need a continuance." 12 And after a while that gets a little old, 13 and I understand her frustration. 14 THE COURT: And I understand her 15 frustration, as well. You know what the answer is? The 16 answer is, file a responsive pleading. Okay? 17 MR. BRUNNER: Agreed, Your Honor. 18 THE COURT: You file a responsive 19 pleading, she can say all the same stuff that she wants 20 to say to respond to whatever they've got there, and 21 then you're not in violation of the court order. 22 MR. BRUNNER: Gotcha, Your Honor. 23 THE COURT: It really seems pretty simple. 24 MR. BRUNNER: Great. Thank you, Your 25 Honor.

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Page 16 1 THE COURT: Okay. 2 (Proceedings adjourned, 11:21 a.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 17 1 STATE OF TEXAS 2 COUNTY OF WILLIAMSON 3 I, SIMONE M. WRIGHT, Official Court Reporter in and 4 for the 368th District Court of Williamson County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court 11 or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $75.00 and was 17 paid/will be paid by Williamson County. 18 WITNESS MY OFFICIAL HAND on this, the 15th day of 19 May, 2015. 20 /s/Simone M. Wright 21 SIMONE M. WRIGHT, CSR Texas CSR 3266 22 Official Court Reporter 368th District Court 23 Williamson County, Texas 405 Martin Luther King, Box 8 24 Georgetown, Texas 78626 Telephone: (512) 943-1280 25 Job No. 160 Expiration: 12/31/2016

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dc2526fa-e518-4c6c-9a88-334dfdcc01e1 State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 1 REPORTER'S RECORD VOLUME 1 OF 2 VOLUMES TRIAL COURT CAUSE NO. 13-0826-K277 STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) WILLIAMSON COUNTY, TEXAS ) CRISPIN JAMES HARMEL ) 368TH JUDICIAL DISTRICT

_____________________________________________ HEARING ON MOTION TO RECUSE/DISQUALIFY DA'S OFFICE AND HEARING ON WRIT OF HABEAS CORPUS/DOUBLE JEOPARDY _____________________________________________

On the 29th day of May, 2015, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Rick J. Kennon, Judge Presiding, held in Georgetown, Williamson County, Texas. Proceedings reported by computerized stenotype machine.

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5946e212-947b-4ffa-bb95-c71002d1e87c State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 2 1 APPEARANCES 2 Ms. Jana Duty 3 SBOT NO. 24000244 -and- 4 Mr. Mark Brunner SBOT NO. 24006917 5 -and- Mr. Brent Edward Webster 6 SBOT NO. 24053545 Williamson County District Attorney 7 405 Martin Luther King Suite 1 8 Georgetown, Texas 78626 Telephone: (512) 943-1234 9 COUNSEL FOR THE STATE 10 11 Ms. Kristen Jernigan SBOT NO. 90001898 12 Law Office of Kristen Jernigan 2007 South Austin Avenue 13 Georgetown, Texas 78626 Telephone: (512) 904-0123 14 E-mail: Kristen@txcrimapp.com COUNSEL FOR THE DEFENSE 15 16 Mr. Ryan Herbert Deck SBOT NO. 24040781 17 The Office of Ryan Deck 107 N. Lampasas Street 18 Round Rock, Texas 78664 Telephone: (512) 251-8920 19 E-mail: Ryandecklaw@gmail.com COUNSEL FOR THE DEFENSE 20 21 Mr. Randall Scott "Scott" Magee SBOT NO. 24010204 22 R. Scott Magee, Attorney At Law 107 N. Lampasas Street 23 Round Rock, Texas 78664 Telephone: (512) 983-1675 24 E-mail: Scott@mageefirm.net COUNSEL FOR THE DEFENSE 25

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5946e212-947b-4ffa-bb95-c71002d1e87c State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 3 1 VOLUME 1 2 Hearing on Motion to Recuse/Disqualify DA's Office and 3 Hearing on Writ of Habeas Corpus/Double Jeopardy 4 5 6 May 29, 2015 7 PAGE VOL. 8 Announcements .....................................6 1 9 Argument by Defense on Recusal/Disqualification ...7 1 10 Argument by State on Recusal/Disqualification ....12 1 11 Rule Invoked .....................................17 1 12 DEFENSE WITNESSES (ON RECUSAL/DISQUALIFICATION): 13 Jana Duty Direct Cross V.Dire By Mr. Deck 25 v1 14 By Mr. Brunner 66 v1 By Mr. Deck 75 v1 15 Defense rests on Recusal/Disqualification .......83 1 16 STATE'S WITNESSES (ON RECUSAL/DISQUALIFICATION): 17 Rod Henegar Direct Cross V.Dire 18 By Mr. Brunner 84 v1 By Mr. Magee 86 v1 19 State rests on Recusal/Disqualification .........89 1 20 Closings Wavied (on Recusal/Disqualification) ....90 1 21 Court's Ruling ...................................90 1 22 23 24 (continued) 25

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Page 4 1 Rule Invoked .....................................98 1 2 DEFENSE WITNESSES (ON DOUBLE JEOPARDY WRIT): 3 Jana Duty Direct Cross V.Dire By Mr. Deck 100 v1 4 By Mr. Brunner 178 v1 By Mr. Deck 217 v1 5 By Mr. Brunner 227 v1 6 Detective Pando Direct Cross V.Dire By Mr. Deck 232 v1 7 By Mr. Brunner 250 v1 By Mr. Deck 257 v1 8 By Mr. Brunner 262 v1 By Mr. Deck 264 v1 9 By Mr. Brunner 270 v1 10 Detective Bond Direct Cross V.Dire By Mr. Deck 271 v1 11 By Mr. Brunner 288 v1 By Mr. Deck 299 v1 12 Adjournment ....................................307 1 13 Reporter's Certificate ..........................308 1 14 15 16 17 18 19 20 21 22 23 24 25

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Page 5 1 ALPHABETICAL INDEX OF WITNESSES 2 Direct Cross V.Dire 3 Bond, Detective Larry 271 v1 288 v1 299 v1 4 Duty, Jana 25 v1 66 v1 5 75 v1 178 v1 6 Duty, Jana 100 v1 227 v1 217 v1 7 Henegar, Rodney Carroll 84 v1 86 v1 8 Pando, Detective Ricky 232 v1 250 v1 9 257 v1 262 v1 264 v1 270 v1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 6 1 EXHIBITS OFFERED BY THE STATE 2 EXHIBIT DESCRIPTION OFFERED ADMITTED 3 1 Handwritten notes by 187 v1 187 v1 Jana Duty 4 2 Victim/Suspect 263 v1 263 v1 5 Timeline created by Detective Pando 6 7 8 9 EXHIBITS OFFERED BY THE DEFENSE 10 EXHIBIT DESCRIPTION OFFERED ADMITTED 11 1 DVD - KXAN Video 24 v1 24 v1 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 27 1 A. Probably Brent and I spoke at some point, 2 maybe, about some issues. My husband -- 3 Q. (BY MR. DECK) Did you ever -- did you ever 4 speak to any of the detectives in this case regarding 5 your testimony? 6 A. As it relates to my computer and what was found 7 on my computer, yeah, we talked about that. 8 THE COURT: Before we keep going, the 9 testimony right now, my understanding, is going to be 10 limited just to the recusal issue, correct, the 11 disqualification? 12 MR. DECK: Correct. 13 THE COURT: Not the double jeopardy issue. 14 MR. DECK: Fair enough, Judge. I'll move 15 along. 16 MR. BRUNNER: Thank you, Your Honor. 17 Q. (BY MR. DECK) Ms. Duty, I'm going to ask you 18 about the alleged violation of the gag order. And I'm 19 sure you're aware of that, yes? 20 A. Yes. 21 Q. On April 9th of this year, the judge, 22 Judge Kennon, entered an order that -- 23 MR. BRUNNER: May we approach, Your Honor? 24 THE COURT: Yes. 25 (Bench conference on the record)

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Page 28 1 MR. BRUNNER: She is subject to criminal 2 contempt. 3 THE COURT: I know that. I was about to 4 do this -- 5 MR. BRUNNER: This is not proper. Sorry. 6 THE COURT: Well, they can ask, and you 7 can warn Ms. Duty about her right to testify or not to 8 testify and plead the Fifth Amendment. It's her 9 decision. 10 MR. BRUNNER: Okay. 11 THE COURT: I mean, I don't know what else 12 to do with that. 13 MR. DECK: That's fine. 14 MR. BRUNNER: I don't want to -- if that's 15 the one question that gets us there, but we don't need 16 five or ten of them. 17 THE COURT: Well, I kind of -- well, 18 actually, I think they can ask, and she has to plead the 19 Fifth on it every time. 20 MR. BRUNNER: We're wasting time, but -- 21 MS. JERNIGAN: But, Judge, I'll proffer to 22 the Court, if she's going to plead the Fifth as to that 23 kind of question, we'll move on, Judge. We can't force 24 her to testify about that issue. 25 THE COURT: Okay.

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Page 29 1 MR. BRUNNER: Well, on her behalf, 2 Your Honor, as to the -- as to the -- as to the alleged 3 violation of the gag order, I'll plead the Fifth for 4 her. 5 MS. JERNIGAN: No. Your Honor, under the 6 case law, she has to assert her right. 7 THE COURT: I understand that. Let's do 8 it on the record real quick. 9 MR. WEBSTER: This isn't civil. It has to 10 be all or nothing. If she pleads the Fifth -- for 11 civil, it's every question. Criminal, she pleads the 12 Fifth or not. So if that's the case, we're done here. 13 MS. JERNIGAN: Can we be included? 14 MR. WEBSTER: You walked away. 15 THE COURT: Well, that's why I wanted you 16 back up here. 17 MR. BRUNNER: Don't walk away. 18 THE COURT: Their argument is that if she 19 pleads the Fifth on any issue, her testimony is over 20 because it's criminal as opposed to civil. 21 MR. WEBSTER: As far as the proceeding 22 today. 23 MR. DECK: Well, that's just one issue. 24 MS. JERNIGAN: I mean, if they're going to 25 try and King's X us on developing a record for our

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Page 30 1 recusal motion, then we will have to, I guess, let the 2 contempt go first and then have our -- 3 MR. BRUNNER: Just ask the question. 4 That's fine. I'll withdraw my objection, Your Honor -- 5 or my approaching. Let's just pretend it didn't happen. 6 THE COURT: Okay. 7 (Bench conference ends) 8 Q. (BY MR. DECK) Ms. Duty, I'm going to ask you 9 some questions regarding the violation of the gag order. 10 Do you understand that? 11 A. The alleged, yes. 12 Q. Fair enough. The alleged violation of the gag 13 order. Do you understand? 14 A. Yes. 15 THE COURT: Before you do that, Ms. Duty, 16 I know you know this, and I think you probably talked to 17 Mr. Brunner about this -- 18 THE WITNESS: Right. I know that I'm 19 subject to -- 20 THE COURT: Okay. You have the right to 21 remain silent and not say anything. Do you understand 22 that? 23 THE WITNESS: Yes. Yeah. 24 THE COURT: Okay. Thank you. 25 Q. (BY MR. DECK) Do you choose to go forward and

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Page 31 1 answer questions here today regarding the alleged 2 violation of the gag order? 3 A. Yes. 4 Q. Going back to the question I had before, before 5 the approach, on April 9th, Judge Kennon entered an 6 order that prohibited the attorneys in the Harmel case 7 from communicating with the press or media regarding the 8 case or any public comments about the case. Do you 9 remember that order? 10 A. The written order? 11 Q. Yes. 12 A. I didn't know about the written order until 13 much later because it was never sent to me, so I never 14 knew it was offered to the judge for his signature and 15 then filed. So at that time, I did not know that a 16 written order had been put in place. 17 Q. And you know, of course, that -- at least now 18 you know that that written order was actually given to 19 your first assistant, Mark Brunner, yes? 20 A. It was sent to him on the same day that it was 21 signed, yes. 22 Q. That's correct. And it's not uncommon, right, 23 for you and Mr. Brunner to talk about these -- about 24 this case, right? 25 A. Right.

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Page 32 1 Q. In fact, if Mr. Brunner had that in his e-mail 2 in-box and he saw it, you would expect him to tell you, 3 I assume? 4 MR. BRUNNER: Objection, Your Honor. 5 That's speculative and it's work product. She would 6 expect me that, if I saw something, I would tell her 7 about it? 8 THE COURT: Overruled. 9 Q. (BY MR. DECK) You would expect your first 10 assistant, with whom you've worked many, many, many 11 months with, that if he found -- if he saw something in 12 his in-box regarding a written order, he would tell you 13 about it, wouldn't he? 14 A. If it was something worthy of telling me about 15 and if he saw it, yes. 16 Q. Is a violation of a gag order worthy? 17 MR. BRUNNER: Objection -- 18 Q. (BY MR. DECK) Excuse me. Is a gag order 19 worthy? 20 MR. BRUNNER: Objection, speculative. 21 MR. DECK: I'm asking her opinion. 22 THE COURT: Overruled. 23 A. If Mr. Brunner had seen the gag order and 24 wanted to come discuss it with me to say, Hey, I've 25 gotten this, let's talk about it -- I mean, yeah,

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Page 33 1 generally that's how it happens. But he never came to 2 talk to me about it, so as far as I know, he didn't see 3 it. 4 Q. (BY MR. DECK) And, of course, you were in court 5 when the judge verbally said those things, that we were 6 not to talk to the media anyway? You were in court, 7 were you not? 8 A. Where we all agreed, in theory, that there was 9 going to be a gag order put in place? Yes. 10 Q. No, no. Actually, it wasn't in theory. We 11 actually agreed, did we not? 12 A. That a gag order was going to be put in place, 13 yes. 14 Q. In fact, if I remember correctly, the judge did 15 order it, and then he asked for a written order later, 16 and I believe your first assistant, Mark Brunner, said, 17 "Judge, you just said it," as in: You just ordered it. 18 Do you remember that? 19 A. Uh-huh. There were several -- several things 20 that we specified -- or somebody specified that needed 21 to be in the order, and those things weren't in the 22 order, either. 23 Q. So, Ms. Duty, I have a question: If the 24 very -- if later this afternoon, after what Mister -- 25 excuse me -- Judge Kennon had ordered orally, if I

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Page 34 1 went -- immediately went and called KXAN, would you have 2 felt -- honestly, would you have felt that I violated 3 Judge Kennon's order? 4 A. I think it depends on what you say. Because 5 most gag orders that I have seen are very specific about 6 what is prohibited and what is not prohibited. And so I 7 guess it depends on what you were saying to the media of 8 whether or not it would fall within the parameters of 9 being a violation. 10 Q. So just so we're real clear, under oath, what 11 your testimony is today in front of this court and 12 everybody here, you're saying that if that afternoon I 13 went and called Austin American-Statesman and started 14 making comments about the Harmel case -- any comments, 15 Ms. Duty, any -- you're telling me that may not have 16 been a violation of the order that Judge Kennon gave us 17 in front of you? That's what you're saying under oath? 18 A. No. I think if you made comments about the 19 case, that would probably fall within the parameters of 20 being a violation of the order. 21 Q. And it would have angered you, would it not, if 22 I would have done that? 23 MR. BRUNNER: Objection, speculative. 24 THE COURT: No. That's overruled. That's 25 not speculative.

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Page 35 1 MR. BRUNNER: About angry? What her 2 emotional state would be to something hypothetically 3 that he says, Your Honor? 4 THE COURT: I think based on the 5 circumstances in this case, she can probably answer that 6 question. 7 MR. BRUNNER: Okay. 8 A. Generally, in most gag orders that are -- that 9 are very specific, which is how they're supposed to be 10 written, talking about the facts of a case are what 11 is -- that's generally what's prohibited in a gag order. 12 So if you called the Statesman and you 13 were talking about the facts of the case, that, I would 14 think, would fall within the parameters of being a 15 violation. 16 Q. (BY MR. DECK) And by the way, I mean, if we're 17 going to call the Statesman about the Harmel case, 18 wouldn't we not be talking about the facts of the case? 19 I mean, isn't that why you would talk to the Statesman, 20 or any news outlet, for that matter? 21 A. No. No. When you're talking to the Statesman, 22 you can be talking about a lot of things. For example, 23 accusations that are being made against me, that I 24 violated some, you know, ethical rule or that I've -- 25 you know, I'm withholding evidence in a case, that has

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Page 36 1 nothing to do with the facts of the Harmel case, that 2 has to do with an attack on me. 3 And so the -- the ethical rules and -- I 4 believe most gag orders, the way they're written, they 5 allow you to defend yourself. 6 Q. Is it your testimony -- is it your sworn 7 testimony, Ms. Duty, that when you spoke to the Austin 8 American-Statesman, you did not believe that there was 9 an order in place for the attorneys of the Harmel case 10 to not speak to the news media in any way regarding the 11 Harmel case? Is that your sworn testimony this morning? 12 A. I knew that we had agreed in court that we 13 would put a gag order in place. I did not know that 14 there was a written order in place because I never saw 15 it; it was never sent to me. And I would assume that if 16 a written order was in place, that it would have been a 17 proper order. 18 Q. Now, you know, like we've talked about, it was 19 certainly spoken about, was it not? 20 A. Yes. 21 Q. Okay. And, in fact, it was spoken about 22 roughly three weeks before you spoke to the Austin 23 American-Statesman; is that fair enough? 24 A. Probably. That's about right. 25 Q. Now, the fact that it was spoken about and

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Page 37 1 three weeks have gone by -- and you know, of course -- 2 you would agree with me, right, the judge did ask for a 3 written order, did he not? 4 A. Yes. 5 Q. Okay. You certainly could have gone down to 6 the clerk's office, said, "Hey, do you mind if I look at 7 the file," and verified that, in fact, there was a 8 written gag order? You could have done that, could you 9 not? 10 A. Yes. 11 Q. You did not, did you? 12 A. No. 13 Q. In three weeks, you could have, couldn't you 14 have? 15 A. I don't know that it was in place for three 16 weeks, but -- 17 Q. Roughly? 18 A. -- yeah, sure. Okay. 19 Q. Okay. And you know, of course, that you 20 guys -- excuse me -- the State has filed, yesterday or a 21 couple days ago, an emergency motion to stay these 22 proceedings? 23 MR. BRUNNER: Objection. That's not 24 relevant, Your Honor. That's a separate issue. 25 THE COURT: That's sustained.

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Page 38 1 Q. (BY MR. DECK) On May 6th, which is almost a 2 month after April 9th, which is when the Judge entered 3 the order, you sent an e-mail to the judge, did you not? 4 A. I'm assuming that date is correct. 5 Q. If at any point, Ms. Duty -- honestly, you know 6 I'm not going to try to trick you. I don't do it that 7 way. If at any point you would like me to show you 8 something to jog your memory, I certainly will do that. 9 What I'm representing to you is that, 10 based on this e-mail that I'm looking at, you sent an 11 e-mail on May 6th to the judge. Does that sound about 12 right? 13 A. Yes. 14 Q. Now, you agree, of course, that -- and, 15 in fact, the State has argued in this very case that 16 ex parte communications are frowned upon, aren't they? 17 A. Yes. 18 Q. You don't like it if a defense attorney has 19 ex parte communications regarding any aspect of a case, 20 do you? 21 A. No. 22 Q. Now, you knew our e-mail address, didn't you? 23 A. Yes. 24 Q. You certainly -- and, in fact, you've actually 25 sent e-mails to the judge, cc'd every single lawyer in

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Page 39 1 this case; you've done that before, haven't you? 2 A. Yes. 3 Q. But on May 6th, Ms. Duty, you did not, did you? 4 A. Not that I recall. 5 Q. And, Ms. Duty, you would agree with me that 6 that is an ex parte communication, is it not? 7 A. Well, ex parte communications are about the 8 facts of the case. 9 Q. Okay. So your testimony -- your sworn 10 testimony is that you don't believe that that 11 communication to the judge was ex parte communications? 12 Is that your sworn testimony, Ms. Duty? 13 A. Yes. I do not believe that that was an 14 ex parte communication because it had nothing to do with 15 the facts of the case. 16 Q. Is there any particular reason why you did not 17 cc the defense team, when you cc'd the defense team 18 almost every other time that I know of you've e-mailed 19 the judge? 20 A. I guess because it wasn't about the facts of 21 the case. 22 Q. So that's the reason that you did not cc the 23 defense team on your communication with the judge via 24 e-mail on May 6th? 25 A. Yeah, or I just didn't think about it.

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Page 40 1 Q. It never entered your mind -- 2 A. No. 3 Q. -- that we might -- if you don't mind, I've got 4 to make this clear for the record. 5 It never entered your mind that it might 6 be something we'd like to know that you're talking about 7 the judge -- you're talking to the judge about speaking 8 to a news outlet, knowing that we were in court when the 9 judge said we were not to speak to the news outlets? 10 A. It's not about the facts of the case, so, 11 therefore, I didn't think that it was relevant to you. 12 Q. Does it surprise you to know, Ms. Duty, that we 13 would be very interested in a communication like that? 14 Does that surprise you to know that right now? 15 A. Well, of course you would be. 16 Q. Right. So you knew that we would want to know 17 about that communication, but you actively did not 18 include us -- 19 A. No, I didn't -- 20 Q. Ms. Duty. Excuse me. You actively did not 21 include us in that communication; isn't that fair to 22 say? 23 A. I didn't think that through. 24 MR. BRUNNER: Your Honor, that's been 25 asked and answered about three times.

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Page 41 1 A. I didn't think it through about how interested 2 you would be in me talking to the Statesman reporter 3 about defending myself against all of your ridiculous 4 allegations. No, I did not think that through. 5 Q. (BY MR. DECK) And on May 7th, the very next 6 day, the Austin American-Statesman, in fact, had an 7 article, did it not? 8 A. Yes. 9 Q. And in that article, there are quotes from you; 10 isn't that true? 11 A. Yes. 12 Q. And the reason why there are quotes from you is 13 that you contacted a reporter with the Austin 14 American-Statesman and you gave that reporter quotes, 15 did you not? 16 A. Yes. 17 Q. And the very next day -- excuse me -- the same 18 day that article came out, Judge Kennon sent an e-mail 19 to all counsel, including you, to meet the very next 20 morning, that Friday morning; isn't that true? 21 A. I'm assuming your dates are right. 22 Q. Fair enough. 23 A. I could have sworn the article came out on 24 Wednesday. Is that right? The article came out on 25 Wednesday?

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Page 42 1 I don't recall how close in time 2 everything happened, but, yes, I did get an e-mail from 3 the judge. 4 Q. It came out May 7th; is that fair to say? I 5 can jog your memory if you'd like. 6 A. Is that a Wednesday or a Thursday. 7 Q. I don't know that, Ms. Duty. I'm not -- 8 Thursday. 9 A. All right. Then, yes. 10 Q. Okay. So it comes out on Thursday with your 11 quotes, and the very -- the very same day, the judge 12 sends an e-mail to all counsel, making it very clear 13 that he wanted to meet us the very next morning; is that 14 fair to say? 15 A. Yes. 16 Q. Now, is it your sworn testimony, Ms. Duty -- 17 THE COURT: Before you go on, Counsel, can 18 you approach? 19 (Bench conference on the record) 20 THE COURT: I kind of know where you're 21 going with all this, but what does it have to do with 22 disqualification or recusal? 23 MS. JERNIGAN: Violations of the court 24 order and multiple professional conducts are what we're 25 talking about now, Judge. Because if you're going to

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Page 43 1 rule that we can't recuse her, we've got to build a 2 record to show those violations. We have to show her 3 willful disdain for the rules of the court and our 4 client's rights. 5 MR. BRUNNER: "Our client's rights" and 6 the "rules of the court" are two different things, 7 Your Honor. Mr. Harmel wasn't even at the meeting that 8 we were all summoned to, Your Honor. This was a 9 lawyers-only meeting. We'll proffer she wasn't here on 10 Friday, the 8th. We'll proffer that. 11 THE COURT: Okay. I understand what 12 you're saying, but I agree that Friday 13 conference/meeting, whatever you want to call it, 14 really -- and I think I said it on the record -- didn't 15 really have to do with, quote, "the facts or the issues 16 in the Harmel case, it had to do with the violation of 17 that court order." 18 MS. JERNIGAN: Well, I realize that, 19 Your Honor. But prior to Your Honor taking the bench, I 20 asked your bailiff if our client was going to be here, 21 because I do think that behavior and conduct of this 22 nature shows that she has personal animosity and has 23 thrown all the rules out the window with respect to 24 prosecuting my client. 25 MR. BRUNNER: So because she didn't like

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Page 44 1 Mr. Harmel, she didn't show up for court? I think 2 that's a stretch, Your Honor. 3 THE COURT: Let's do it quick. 4 MR. DECK: Okay. Gotcha. 5 THE COURT: To me, that's like a one- or 6 two-question deal. 7 MR. DECK: I get it. I can. 8 THE COURT: Okay. 9 (Bench conference ends) 10 THE COURT: Go ahead, Mr. Deck. 11 MR. DECK: Thank you, Judge. 12 Q. (BY MR. DECK) The fact of the matter is, the 13 judge set a hearing the very next morning; isn't that 14 correct -- excuse me -- a meeting, I should say, at 15 least, on May 8th? 16 A. Yes. 17 Q. Okay. And, of course, you weren't there? 18 A. Correct. 19 Q. And isn't it true that later on May 8th you 20 sent an e-mail to the judge? 21 A. Yes. 22 Q. And in that e-mail, you did cc all counsel in 23 this case? 24 A. I didn't? 25 Q. No. You did.

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Page 45 1 A. Okay. Okay. 2 Q. Is that fair to say? 3 A. I'm assuming so, yes. 4 Q. Okay. And also in that e-mail, you stated that 5 you didn't show up because you were not given enough 6 respect from the Court, and so therefore, you would not 7 give respect to the Court by showing up to the hearing. 8 Do you remember something to that effect? 9 A. Something to that effect, yeah. 10 Q. So it wasn't because your child was sick or 11 anything like that, you didn't show up as a show of 12 disrespect to the Court? 13 A. No. Actually, I had plans for that day. I had 14 that day off because I had family in town. 15 And so I said, I will attempt to rearrange 16 my schedule if this is something important that I need 17 to be there for. 18 And when I saw that it was going to be a 19 10-to-15-minute meeting, I thought, okay, well, it must 20 not be something major if it's going to be so short. 21 And the fact that the judge didn't tell me what it was 22 about, I thought, well, I will send my co-counsel 23 because I have plans for the day, and I'm not going to 24 come up to the courthouse for 10 to 15 minutes if my 25 co-counsel can be there.

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Page 46 1 Q. And that's all fine and well, Ms. Duty, but I 2 want to ask you about a specific sentence in your 3 e-mail. 4 A. Yes. 5 Q. Okay. "If you don't respect me enough to give 6 me the information I requested, I will not give you" -- 7 "you" being Judge Kennon; is that fair to say? 8 A. Yes. 9 Q. -- "I will not give you respect and show up." 10 Isn't that what you wrote? 11 A. Well, that's part. 12 Q. Is that what you wrote, Ms. Duty? 13 A. Yes, but that's only part of it. The other 14 part was that there -- it's one of two things: One is, 15 it wasn't important enough for me to be there -- 16 Q. Ms. Duty, unfortunately that's not my question, 17 and your answer at this point is nonresponsive. I just 18 need you to answer my question, if you don't mind. 19 Okay? 20 A. Uh-huh. 21 Q. One of the other lines in your e-mail -- and 22 I'm going to quote you, and if for any reason you need 23 to read your e-mail, of course, I have it -- quote, "But 24 making a public spectacle out of punishing me just hurts 25 everyone. No one will come out unscathed."

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Page 47 1 Did you write that Ms. Duty? 2 A. Yes. 3 Q. What did you mean by that? 4 A. Well, when we have a battle, everybody -- 5 everybody gets wounded. 6 Q. Now, when I read that, Ms. Duty, I read that as 7 a threat. Was it a threat? 8 A. No. It's just the truth. When public 9 officials fight, it's -- it's ugliness, it's always in 10 the media, and everybody ends up looking bad. 11 Q. Isn't it true, Ms. Duty, that we -- and by "we" 12 I mean all the counsel in this case, including the 13 judge, including the court reporter -- we met on May 5th 14 in the grand jury room, which is in your office; isn't 15 that fair to say? 16 A. Yes. 17 Q. And isn't it also fair to say, Ms. Duty, that 18 at that time, you had in your possession -- you had read 19 the Defense's motion for continuance; isn't that fair to 20 say? 21 A. I'm sure I had it in my possession, but I 22 probably hadn't read it. 23 Q. Well, I mean -- let's talk about that for a 24 moment. I mean, because I know we had some discussions 25 in Judge's chambers, and I remember you being very, very

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Page 48 1 upset about the allegation, according to you, that not 2 all evidence was given to us from Detective Acevedo. I 3 mean, obviously, did someone tell you that, or did you 4 read it for yourself? 5 A. I don't know how I knew that that was the 6 allegation. Maybe I read it or maybe Mark and I talked 7 about it and he said, you know, The allegation is that 8 all the information is not on here. And that was the 9 first that I had heard of it. Because I didn't actually 10 look at the discs, so I didn't know what was on there. 11 Q. So it's fair to say, then, one way or the 12 other, you knew what was being asserted in that motion 13 for continuance, roughly, at least; is that fair to say? 14 A. Yes. 15 Q. Okay. Now, you also, I assume, would agree 16 with me that nothing -- nothing was going to stop you -- 17 nothing could have stopped you, I should say, between 18 bringing it up to the judge while we're there in the 19 grand jury room, "Hey, Judge, I would like to speak to 20 the news outlet," despite the fact of what you said in 21 open court? You could have done that in that grand jury 22 room, could you not have? 23 A. At that time, it was not public -- I mean, it 24 wasn't being reported on. 25 Q. But you were certainly angry about it?

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Page 49 1 A. Yeah. 2 Q. And you know, of course, that anything filed 3 with the clerk is public? 4 A. Well, since you guys immediately sent it to the 5 media, yeah. 6 Q. That did not happen, Ms. Duty, but let's move 7 on. Okay? 8 I just want to make sure we're clear. You 9 knew that that motion for continuance was essentially in 10 the public because it was in the clerk's office, did you 11 not? 12 A. But it had not been reported on. 13 Q. But you knew it was -- it was free for the 14 public to look at -- 15 A. Yes. 16 Q. -- didn't you? 17 A. Yes. 18 Q. Okay. Yet, you did not bring up to the judge 19 at that point in time, with us present, that you might 20 want to speak to any news outlets, did you? 21 I just need you to answer the question. 22 Did you or did you not bring it up to the judge? 23 A. At that time, no. 24 Q. Ms. Duty, we know you contacted the Austin 25 American-Statesman after the gag order was issued. Did

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Page 50 1 you contact any other news or media outlets? 2 A. No. They're the only ones that did a story. 3 Q. Okay. So you didn't contact KXAN? 4 A. No. 5 Q. KEYE? 6 A. No. 7 Q. KVUE? 8 A. No. 9 Q. Excuse me. Georgetown Advocate? 10 A. No. 11 Q. Ms. Duty, I would like to now kind of switch 12 gears and talk about the video. Okay? 13 And, of course, you wrote a State's 14 response to Defense's supplemental motion to 15 recuse/disqualify the District Attorney's Office, and in 16 that response, you address a video. So we know what 17 video we're talking about, right? 18 A. Yes. 19 Q. Did you play any part in the production of that 20 video? 21 A. No. 22 Q. You knew nothing about the video until it was 23 completed and given to you by your husband, Daniel 24 Hunsicker; is that correct? 25 A. That's correct.

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Page 71 1 A. Yes. 2 Q. And have things been said in staff meetings in 3 the privacy of our own office that maybe sometimes are a 4 little unprofessional? 5 A. Yes. 6 Q. Things we wouldn't want to see in the newspaper 7 the next day, correct? 8 A. Yes. 9 Q. But we say it anyway? 10 A. Yes. 11 Q. Talking about newspapers, let's talk about this 12 gag order. 13 When we -- when you asked the Court for an 14 order, do you assume that the Court is going to issue a 15 valid order? 16 A. Yes. 17 Q. Do you assume the Court is going to issue a 18 constitutional order? 19 A. Yes. 20 Q. When we asked the Court in this case to issue a 21 gag order to prevent talking to the media, did we also 22 ask for the -- to limit, let's say, the Defense from 23 posting to an e-mail LISTSERV and trying to use that as 24 a proxy to get information out that way? 25 A. Yes.

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Page 72 1 Q. And did the judge agree to that? 2 A. Yes. 3 Q. Was that other part of our request and the 4 judge's order to have the Defense not post things to the 5 LISTSERV, did that make it to the written order that he 6 signed -- the judge signed? 7 A. No. 8 Q. So that was said in open court to everybody 9 here, correct? 10 A. Correct. 11 Q. The judge asked Defense counsel, Ms. Jernigan, 12 to write the order, correct? 13 A. Correct. 14 Q. And she didn't write the entire order, did she? 15 A. No. 16 Q. Or at least everything the judge said? 17 A. Correct. 18 Q. He asked for more things, and there was only: 19 No one can talk to the media. Right? 20 A. Yes. 21 Q. There was nothing about a LISTSERV in there, 22 was there? 23 A. No. 24 Q. Did we sit down and let the judge know that we 25 agreed with the proposed order that Ms. Jernigan

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Page 73 1 proffered to the court? 2 A. No. I never saw it. 3 Q. Was the order signed the same day as it was 4 e-mailed out to us? 5 A. Well, it wasn't e-mailed to me, but, yes. 6 Q. And was it e-mailed only to me? 7 A. Yes. As far as -- as far as I know. 8 Q. So, again, could have been cc'd to you -- 9 you're the district attorney, correct? 10 A. Yes. 11 Q. Are you also the first chair attorney in this 12 trial? 13 A. Yes. 14 Q. Also, we have an appellate attorney that's 15 helping us out, Mr. Webster? 16 A. Yes. 17 Q. Was he cc'd on that gag order? 18 A. No. 19 Q. The wisdom of going against the gag order and 20 reaching out to Claire Osborn from the Austin 21 American-Statesman, was that stemming from a desire to 22 deprive this gentleman down on my far right, Mr. Harmel, 23 a fair trial? 24 A. Absolutely not. 25 Q. Was it in a sense of any animosity towards

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Page 74 1 Mr. Harmel? 2 A. No. 3 Q. Was it in a sense of any animosity towards the 4 judge? 5 A. No. 6 Q. Were you fed up with the accusations of 7 withholding evidence? 8 A. Yes. That's -- 9 Q. Did that get a little old? 10 A. -- an understatement. Yes. 11 Q. Did you feel at that time you had had enough? 12 A. Yes. 13 Q. And maybe that's not an explanation -- a good 14 excuse for possibly violating the gag order, but that's 15 the explanation, isn't it? 16 A. It is. 17 Q. Didn't call a press conference? 18 A. No. 19 Q. Didn't go down your rolodex and call everybody 20 else, right? 21 A. No. 22 Q. One reporter wrote a story, and you contacted 23 that one reporter, didn't you? 24 A. Yes. 25 Q. Ms. Duty, are prosecutors allowed to believe

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Page 75 1 that the Defendant committed a crime? 2 A. Yes. 3 Q. If a defense attorney believes that his client 4 committed a crime, is a defense attorney still allowed 5 to defend that person? 6 A. Yes. 7 Q. If a judge believes that someone committed a 8 crime, are they still -- if they keep it to themselves, 9 at least, are they still able to judge the case and 10 listen to the evidence and weigh it fairly? 11 A. Yes. 12 Q. In fact, are we the only ones in that equation 13 between defense attorney, judge, and State, we're the 14 only ones that have to believe that the Defendant did 15 it, correct? 16 A. Yes. 17 Q. If we didn't believe that someone did it, we'd 18 have to dismiss the case, wouldn't we? 19 A. Yes. 20 Q. So the fact that you have said things either in 21 public or privately that you believe Mr. Harmel is 22 guilty, well, that's why we're all here, correct? 23 A. Yes. 24 Q. If you didn't believe that, you wouldn't be 25 first chair, and we wouldn't be prosecuting this case,

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Page 76 1 would we? 2 A. Correct. 3 MR. BRUNNER: I'll pass the witness. 4 THE COURT: Mr. Deck? 5 MR. DECK: Thank you, Judge. 6 REDIRECT EXAMINATION 7 BY MR. DECK: 8 Q. Ms. Duty, I want to talk about the ideal way 9 that a lawyer would handle the gag order situation. 10 Okay? 11 MR. BRUNNER: Your Honor, this is not 12 relevant. We're now getting into a CLE lecture here. 13 This is -- 14 THE COURT: You brought it up, 15 Mr. Brunner, in your questioning. I'm going to allow a 16 little bit of it, but not a lot. 17 MR. BRUNNER: Those are the magic words, 18 Your Honor. Thank you. I'll settle for that. 19 Q. (BY MR. DECK) Ms. Duty, what a lawyer could do 20 in that situation, the situation you found yourself in, 21 a lawyer could go down to the clerk's office and verify 22 whether or not there is a written gag order issued by 23 the judge. Couldn't a lawyer do that? 24 A. Yes. 25 Q. And if she did and she found that there was a

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Page 77 1 gag order and she found that that gag order, for 2 whatever reason, was unconstitutional, couldn't that 3 lawyer then file a motion stating that the gag order was 4 unconstitutional? Could she do that? 5 A. Yes. 6 Q. Could that lawyer then set that motion for a 7 hearing in front of Judge Kennon, the judge who issued 8 the order, and have him hear it to determine whether or 9 not that order was constitutional? 10 A. Yes. 11 Q. And if that judge found that the order was, 12 indeed, constitutional [sic], and turns out you're 13 allowed to speak to the media and then you do, wouldn't 14 that be the most ideal, the most legal way of handling a 15 gag order situation? 16 A. If I knew it was there, I would have gone down 17 that direction, yes. 18 Q. Ms. Duty, we're going to go back to the first 19 question. Could a lawyer go down to the clerk's office 20 and check? 21 A. Yes. Yes. 22 Q. But you didn't do any of those things, did you, 23 Ms. Duty? 24 A. I don't even have to go to the clerk's office. 25 I can just pull it up on my computer.

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Page 78 1 Q. Even better. You didn't even do that, 2 Ms. Duty, did you? 3 A. I did not look to see if there was an order in 4 place. 5 Q. And as the judge mentioned in the hearing -- I 6 think it was the one that you weren't there for -- the 7 other thing a lawyer could do is she could file a 8 responsive pleading, taking issue with the assertions 9 made in the Defendant's pleading. Could a lawyer not do 10 that? 11 A. Yes. I did. 12 Q. A lawyer could do that instead of talking to a 13 news outlet, without verifying whether or not there's an 14 order. Couldn't a lawyer do that? 15 A. I -- yeah. I did file a responsive pleading, 16 yes. 17 Q. You did, Ms. Duty. But isn't it true that you 18 did it after you spoke to a news media outlet, in direct 19 contradiction of what Judge Kennon said in open court? 20 A. What he said in open court was that there was 21 going to be an order put in place. 22 Q. Okay. So -- 23 A. And as far as I knew, there was not yet an 24 order put in place, a written order, to my knowledge -- 25 Q. Fair enough.

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Page 79 1 A. -- at that time. 2 Q. So just you felt like anyone could speak to the 3 media after that day in court? Anyone could have spoken 4 to the media right up to the point that a written order 5 was signed by the judge? Is that your interpretation of 6 what happened that day, Ms. Duty? 7 A. Very limited circumstances of what you could 8 talk about, yes. 9 MR. DECK: One moment, Judge, please. 10 Q. (BY MR. DECK) Ms. Duty, you were in court on 11 April 8th regarding this case, were you not? 12 A. I'm assuming so. 13 Q. Right. Because you were in court for 14 everything regarding this case except for one time; 15 isn't that fair to say? 16 A. Probably, yes. 17 Q. And, again, if you need your memory refreshed, 18 of course, we have the transcript. 19 Mr. Brunner said near the end of that -- 20 near the end of the hearing on April 8th, "Your Honor, 21 the gag order is still in effect?" 22 That was a question. 23 The Court said, "Yes." 24 Mr. Brunner said, "Thank you, Your Honor." 25 So is it your sworn testimony here today,

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Page 80 1 Ms. Duty, that there was not an order in effect, even 2 though your first assistant asked that exact question in 3 front of you to this judge? Is it your sworn testimony, 4 Ms. Duty, that it was not in effect? 5 A. Well, if it's a valid gag order and it's in 6 effect, then that allows you to still do certain things. 7 Q. Ms. Duty -- 8 A. So I'm assuming that if the judge is saying, 9 "Yes, there's a gag order in place," that it's a valid 10 gag order. And a valid gag order is very specific. 11 It's not one sentence. It's usually about a page long, 12 and it talks about what's restricted and what is not. 13 And under most gag orders that I have seen, being able 14 to defend yourself is excluded. You can do that. You 15 just can't talk about the facts of the case. 16 Q. Ms. Duty, you've never felt like you 17 couldn't -- in these hearings, you've never felt like 18 you couldn't speak up to the judge in these hearings, 19 right? I mean, you've always been able to speak up to 20 the judge if you wanted to, right? 21 A. Yes. 22 Q. And so if Mr. Brunner asks, "Your Honor, the 23 gag order is still in effect?" and he response, "Yes," 24 and your first assistance says, "Thank you, Your Honor," 25 could you not have said, "Judge, hold up. Let's talk

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Page 81 1 about that order. What exactly does it entail?" Could 2 you not have done that? 3 A. I was assuming that Ms. Jernigan -- 4 Q. I'm asking you -- no, no. I'll be very clear. 5 A. Yes. Could I have done that? Yes. 6 Q. And, of course, you did not? 7 A. No, I didn't. 8 Q. And isn't it true that your office challenged 9 the gag order at the Court of Appeals just this week, 10 and your petition was denied? 11 MR. BRUNNER: Objection, Your Honor. This 12 is not relevant. 13 THE COURT: Actually, Ms. Duty has made it 14 relevant. 15 So go ahead and ask the question. 16 MR. BRUNNER: How is that, Your Honor? 17 THE COURT: Because her whole point is 18 it's not a valid order. 19 MR. BRUNNER: Okay. 20 Q. (BY MR. DECK) So isn't it true, Ms. Duty, that 21 your office filed with the Court of Appeals a challenge 22 to the gag order? Isn't that true? That just happened 23 this week? 24 A. Yes. 25 Q. And isn't it also true that we found out very

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Page 82 1 late yesterday that your petition was denied? Isn't 2 that true? 3 A. On procedural grounds, yes. So it will be 4 refiled. 5 Q. But that's not -- wait. Just so we're clear, 6 that's not what it said, though, right? It didn't 7 say -- 8 A. It -- 9 Q. Wait a minute. Let me be very clear. 10 Did it say it's denied on procedural 11 grounds? Because I don't remember hearing -- seeing 12 that. Is that what it said? 13 A. It cites a specific statute section, and that's 14 what that section stands for. 15 THE COURT: Have you read the order? 16 Because, no, it doesn't. 17 THE WITNESS: It cites a specific statute. 18 MR. BRUNNER: Your Honor, we're talking 19 about legal conclusions here, and we're going to have 20 lawyers arguing about what other lawyers -- 21 THE COURT: Pull the order. If you want 22 to read the order, read the order. 23 MS. JERNIGAN: If I could just have a 24 moment to pull it up, Your Honor? 25 Q. (BY MR. DECK) While she's pulling it up,

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Page 83 1 Ms. Duty, I mean, if you don't remember, you don't 2 remember, and that's totally fine. 3 THE COURT: I have it, if you need it. 4 MR. DECK: Okay. Do you mind if we 5 approach, Judge? 6 THE COURT: Sure. 7 Q. (BY MR. DECK) Ms. Duty, I assume that if I 8 showed you the actual order, it would jog your memory? 9 A. Well, I haven't seen it. 10 THE COURT: It does cite a rule, just so 11 you know. 12 Q. (BY MR. DECK) Okay. But you haven't seen it, 13 Ms. Duty? 14 A. No. 15 Q. Ms. Duty, did you -- just one question. You 16 haven't seen it, Ms. Duty? 17 A. I have not actually physically seen it. 18 Q. Okay. Fair enough. 19 And you just -- under sworn testimony, you 20 said that it actually states something. Where did you 21 get that information, Ms. Duty? 22 A. Mr. Webster called me yesterday afternoon -- 23 yesterday afternoon when he got notice of that. 24 Q. Okay. So your impression is -- when it says, 25 "The emergency temporary relief is dismissed as moot,"

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Page 84 1 your impression is that it was dismissed solely on 2 procedural grounds? 3 A. The specific rule that is cited implies that it 4 is -- there was, like, something, a box not checked or 5 something missed or something not, you know, attached; 6 that it's not an actual -- it's not -- it's not a ruling 7 on the merits. 8 MR. BRUNNER: Your Honor, it's been 9 denied. It's been denied. We know that. And so what 10 her interpretation of it is -- 11 MS. JERNIGAN: She gets to be impeached. 12 THE COURT: Well, I'm not sure why -- 13 where she's getting the information that she's getting, 14 but I've seen the order, and it doesn't say anything 15 like that. 16 That being said, I'm not sure why it has 17 anything to do with this at this point in time, anyway. 18 MR. BRUNNER: Thank you. I renew my 19 relevance objection, Your Honor. 20 THE COURT: That's sustained. 21 MR. DECK: Pass the witness. 22 MR. BRUNNER: No further questions. 23 THE COURT: Thank you, Ms. Duty. 24 MR. DECK: Judge, we rest. 25 THE COURT: Do you have any witnesses on

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Page 94 1 for murder, and I don't expect her to think he's a great 2 guy and say great things about him. 3 So I understand that, especially in the 4 motion that's been filed by the State on the motion 5 to -- I mean, sorry -- by the Defense on the motion to 6 recuse and disqualify has a long list of allegations 7 that the Defense believes are violations of the Texas 8 Rules of Professional Conduct by Ms. Duty with regard to 9 this case and how it affects Mr. Harmel and due process 10 violations. 11 That being said, looking at -- I still 12 think under the case law, unless the Court of Criminal 13 Appeals gives us another opinion that expands that, I 14 don't think I have authority to disqualify her in this 15 case, except under very, very limited circumstances. 16 And violations, even if I believe that they were 17 violations of the Rules of Professional Conduct, I don't 18 think that gives me authority to disqualify her. 19 So I'm going to deny the Defense's motion 20 to disqualify the District Attorney's Office in this 21 case. 22 Are y'all ready to start the double 23 jeopardy issue? Okay. Let's -- go ahead, Mr. Brunner. 24 MR. BRUNNER: You saw me move, Judge. 25 We can start that. Just some procedural

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Page 95 1 matters real quick, Your Honor, about some other filings 2 that we had made that I would seek rulings on, but that 3 would be very fast. 4 THE COURT: Okay. Well, let's take a 5 15-minute break. Let's start back at 11:00. 6 MR. BRUNNER: 11:00, Your Honor. 7 Thank you. 8 (Recess from 10:42 to 11:04) 9 (Open court, Defendant present) 10 THE COURT: Okay. We're back on the 11 record in Cause No. 13-0826-K277, State versus 12 Crispin Harmel. 13 We're ready to proceed on the Defense's 14 pretrial motion for writ; is that correct? 15 MR. DECK: Sure are, Judge. 16 MR. WEBSTER: Judge? 17 THE COURT: Yes. 18 MR. WEBSTER: If I can interject, prior to 19 this I filed a motion asking the Court to void the gag 20 order, and I wanted to ask the Court to either grant or 21 deny that motion. 22 THE COURT: That's denied. 23 MR. WEBSTER: That's denied? Thank you, 24 Judge. 25 THE COURT: Are you talking about voiding

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Page 96 1 the one that's there or enter the new one that you 2 wanted? 3 MR. WEBSTER: My request is that you 4 void -- the first motion was to void the gag order that 5 is currently present. 6 THE COURT: Okay. And on what grounds? 7 MR. WEBSTER: I would just reassert my 8 argument that was made in that motion that was filed 9 with the Court and the Defense. 10 THE COURT: Based on you think it's 11 unconstitutional? 12 MR. WEBSTER: Yes, Your Honor. 13 THE COURT: I'm assuming you're aware of 14 the Doctrine of Estoppel? 15 MR. WEBSTER: I'm just asserting my 16 motion. 17 THE COURT: I'm assuming you're aware of 18 the Doctrine of Estoppel? 19 MR. WEBSTER: I don't believe it applies 20 in this case, Your Honor. 21 THE COURT: Really? One of the cases that 22 you gave me clearly said that you can't object to an 23 order that you agreed to be entered. 24 MR. WEBSTER: At this time we're objecting 25 to it, and we're asking you to declare it void.

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Page 97 1 THE COURT: Okay. I'm going to deny that 2 motion. And my reason for denying that motion is the 3 State requested the motion; the Defense did not object 4 to that motion; I said on the record what my ruling was; 5 Mr. Brunner said, "That's great, Your Honor," agreeing 6 to the language of the order; and there was no objection 7 to it. 8 And so if y'all want to agree to vacate 9 that order, if you guys want to go yell at the media all 10 day long, you can if you want to. The only reason I 11 entered this is because that's what you wanted, and 12 nobody objected to it. 13 If you want to enter a different gag 14 order, then you need to put on evidence that meets all 15 the criteria that you wanted in the proposed gag order 16 that you filed in your other motion. But you would have 17 to present evidence that would justify those findings in 18 order to enter that particular type of order. 19 MR. WEBSTER: For the record, then, Judge, 20 I would at least like to, in a similar fashion, object 21 to your ruling and take exception to your ruling on the 22 unconstitutionality of the current gag order. 23 THE COURT: Sure. 24 MS. JERNIGAN: May I state something just 25 for the record, Judge?

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Page 98 1 THE COURT: Sure. 2 MS. JERNIGAN: There's been a lot of 3 discussion about the fact that I drafted the order that 4 was at the Court's request. And just so the record is 5 clear, I didn't come up with that language on my own, 6 that's language that I found in a case that ratified a 7 gag order using that exact same language. 8 So just so the Court is clear, I didn't 9 come up with the language for the gag order. I modeled 10 it after what Your Honor asked and after reviewing case 11 law to determine the proper language. 12 THE COURT: Okay. Thank you. 13 Anything else? 14 MR. WEBSTER: Just so I'm clear, it's an 15 expressed denial of our request to void the gag order? 16 THE COURT: That is correct. If you have 17 an order that you want me to sign, I'll be glad to sign 18 it. 19 MR. WEBSTER: Thank you, Judge. 20 MR. BRUNNER: Thank you, Your Honor. We 21 have no more particular motions at this time. 22 THE COURT: Okay. 23 MR. DECK: The Defense calls Jana Duty, 24 Judge. 25 And, of course, Judge, we're going to

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

5946e212-947b-4ffa-bb95-c71002d1e87c State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 229 1 A. Yes. 2 Q. When Mr. Harris was still working with us, 3 correct? 4 A. Yes. 5 Q. And at that time, when you were kind of 6 wrapping your brain around the case, you may or may not 7 have been using, quote, the "proper player," correct? 8 A. Correct. 9 Q. You don't recall exactly, do you? 10 A. I don't. 11 Q. When you were in trial mode and preparing 12 discrete exhibits, prepping your trial team -- which did 13 not include Mr. Harris at the time, correct, did it? 14 A. That's correct. 15 Q. When you were in trial mode, as you say, were 16 you using the correct player? 17 A. No. 18 Q. When you were in trial mode, did that 19 correspond when Mr. Deck was kind of in trial mode and 20 was really ramping up his request for, quote, "the 21 copies with the time-stamps"? 22 A. I'd say that's right. 23 Q. And at that time, you were not using the right 24 player, were you? 25 A. I was not.

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

5946e212-947b-4ffa-bb95-c71002d1e87c State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 230 1 Q. And all along, they had, quote, "the copy with 2 the time-stamps," right? 3 A. Yes. 4 Q. To the extent that anything is encrypted, 5 hidden, whatever, on these videos, time-stamps are not 6 obvious, you didn't make them not obvious, right? 7 A. No. 8 Q. That's just how it came to us, correct? 9 A. Yes. 10 Q. And we had the same technical problem they had 11 for weeks, correct? 12 A. A lot longer than weeks. I mean, the whole 13 time that we had this case, yes. 14 Q. Persisting into the start of the trial, 15 correct? 16 A. Yes. 17 Q. To prevail on a double jeopardy motion against 18 the State, Defense has to prove that the State was 19 trying to cause -- intentionally cause a mistrial. 20 Were you intentionally trying to cause a 21 mistrial through any of your actions in this case? 22 A. Absolutely not. 23 Q. To legally prevail, they have to prove that we 24 were trying to prevent an acquittal. Were we trying to 25 prevent an acquittal, Ms. Duty? Were you at any time in

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

5946e212-947b-4ffa-bb95-c71002d1e87c State of Texas v. Harmel 13-0826-K277 5/29/2015

Page 309 1 STATE OF TEXAS 2 COUNTY OF WILLIAMSON 3 I, SIMONE M. WRIGHT, Official Court Reporter in and 4 for the 368th District Court of Williamson County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court 11 or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $ and 17 was paid/will be paid by Williamson County. 18 WITNESS MY OFFICIAL HAND on this, the 8th day of 19 June, 2015. 20 /s/Simone M. Wright 21 SIMONE M. WRIGHT, CSR Texas CSR 3266 22 Official Court Reporter 368th District Court 23 Williamson County, Texas 405 Martin Luther King, Box 8 24 Georgetown, Texas 78626 Telephone: (512) 943-1280 25 Job No. 164 Expiration: 12/31/2016

(512) 943-1280 SIMONE M. WRIGHT, CSR 368th District Court simonewrightcourtreporter@gmail.com

5946e212-947b-4ffa-bb95-c71002d1e87c 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

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.