Case Information

Volume I of I SUPPLEMENTAL TRANSCRIPT Trial Court No. D-1-DC-14-100139 In the 390TH Judicial District Court of Travis County, Texas, Honorable BERT RICHARDSON, Judge Presiding.

In the 390TH Judicial District Court of Travis County, Texas, Honorable BERT RICHARDSON, Judge Presiding.

In the 390TH Judicial District Court of Travis County, Texas, ADEI ACosta, Clerk

ABEI ACosta, Clerk

APPEALED to the Court of Appeals transmitted to the Court of Criminal Appeals for the State of Texas, at Austin, Texas.

Attorney for Applicant DAVID BOTSFORD 1307 WEST AVENUE

AUSTIN, TEXAS 78701 Telephone No.: (512) 479-8030 Fax No.: (512) 479-8040 State Bar No.: 02687950

Attorney for State:

MR. MICHAEL MCCRUM, District Attorney Pro Tem Travis County, Texas 700 N. Mary's St., Suite 1900 San Antonio, Texas 78205 Telephone No.: (210) 225-2285 Fax No.: (210) 225-7045

RECEIVED IN

COURT OF CRIMINAL APPEALS SEP 022015

Abel Acosta, Clerk

DELIVERED to the Court of Criminal Appeals for the State of Texas, at Austin, Texas, on the day of $S \in P ↓$ , 2015.

VELVA L. PRICE District Clerk, Travis County, Texas By: $◻$ HOLLI SILER, Deputy

Court of Criminal Appeals No.

FILED in the Court of Criminal Appeals for the State of Texas, at Austin, Texas, this day of .

ABEL ACOSTA, Clerk By: , Deputy

Index

CAPTION ..... 1 MOTION TO STAY PROCEEDINGS PENDING APPEAL ..... 2 AMENDED MOTION TO STAY PROCEEDINGS PENDING APPEAL ..... 10 CLERK'S RECORD CERTIFICATE ..... 18

CAPTION

THE STATE OF TEXAS

COUNTY OF TRAVIS

In the 390TH JUDICIAL DISTRICT COURT of Travis County, Texas, the Honorable BERT RICHARDSON, Judge Presiding, the following proceedings were held and the following instruments and other papers were filed in this cause, to-wit:

Trial Court Cause Number: D-1-DC-14-100139 THE STATE OF TEXAS VS.

JAMES RICHARD "RICK" PERRY

IN THE 390TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS

NO. D-1-DC-14-100139

STATE OF TEXAS vs JAMES RICHARD "RICK" PERRY

$§$

IN THE DISTRICT COURT

§ 390th DISTRICT COURT § $§$ TRAVIS COUNTY, TEXAS

MOTION TO STAY PROCEEDINGS PENDING APPEAL

TO THE HONORABLE JUDGE RICHARDSON:

Now COMES the State of Texas, by and through Michael McCrum, District Attorney Pro Tem, Travis County, Texas, and pursuant to Tex. Code CRIM. Proc. article 44.01(e) and Tex. R. App. P 25.2(g) presents this Motion.

I.

OVERVIEW The Grand Jury indicted Defendant on two counts: (1) Abuse of Official Capacity Statute, or Tex. PENAL CODE § 39.02(a)(2), which makes it an offense for a "public servant," "with intent to harm . . . another," to intentionally or knowingly "misuse government property . . . that has come into the pubic servant's custody or possession by virtue of the public servant's office or employment; (2) Coercion of Public Servant, or Tex. PENAL CODE § 36.03(a)(1) which makes it an offense for a person, "by means of coercion," to "influence" or attempt to "influence" a "public servant" to a specific end.

To date, the prosecution of both of these counts has proceeded under one indictment with one cause number and for resolution by one trial.

On July 24, 2014 the Third Court of Appeal issued an opinion effectively dividing the case into two separate actions:

Filed in The District Court of Travis County, Texas

AUG $312015 π$ $A t L Γ_{23} L_{2} M$ . Volva L. Price, District Cilerk

(1) The Court of Appeals affirmed this Court's rulings that Defendant's "as-applied" challenges may not be considered in pretrial habeas; and (2) The appellate court decided that the statute the Texas Legislature passed to combat public corruption is overbroad and unenforceable.

Although the Third Court of Appeals rejected Defendant's legal arguments to dismiss Count I, he is seeking a petition for discretionary review with the Court of Criminal Appeals. And because the Third Court of Appeals invalidated a public law that protects all citizens from public corruption, the State Prosecutor's Office is seeking discretionary review regarding the statute at issue in Count Two.

It is unknown whether the Court of Criminal Appeals will grant review on either or both grounds.

II.
THE STATE'S POSITION

The State's interests are threefold: 1) to resolve this case in the most fair, expeditious and prompt manner possible; 2) to avoid duplicitous legal proceedings, thereby saving time and expense to the taxpayers of Travis County and the State of Texas; and 3) to defend a statute that was passed by the Texas Legislature specifically to protect the public from abuse of power by public officials. The issue before this Court is whether to address pending motions to dismiss the remaining count and/or proceed to trial on the remaining count. The State is concerned, however, that proceeding forward in the district court could give rise to an unnecessary, significant expenditure of resources, given the fact that the Court of Criminal Appeals has pending before it live pleadings affecting each of the counts of the indictment.

As this Court is aware, the opinion of the Third Court of Appeals in the instant case entitles both parties to seek further review in the Court of Criminal Appeals for a final determination of disputed legal issues as to each count of the indictment. From the State's

perspective, the court of appeals' decision affects Count II of the indictment, triggering the right of the State to appeal pursuant to Tex. Code Crim. Proc. § 44.01(a) and 44.01(h). See, e.g., State v. Richardson, 383 S.W.3d 544, 545 (Tex. Crim. App. 2012); State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011). Pursuant to Tex. Code Crim. Proc. § 44.01(e), the State may request a stay of all district court proceedings so that a final determination by the Court of Criminal Appeals may be made on the constitutionality of the public corruption statute in Count II.

The State is mindful that it could seek to proceed to trial on Count I and await the Court of Criminal Appeals' decision on Count II. But because the Court of Criminal Appeals has before it requested relief filed by both parties relative to both of the indictment counts, it does not appear prudent for the district court to make decisions relative to either of these counts and/or proceed to trial, where the Court of Criminal Appeals may make such moot or otherwise unnecessary. The State believes the more prudent path is to await direction from the Court of Criminal Appeals on the pending petitions for discretionary review.

III.
LEGAL SUPPORT

A. Article 44.01 of the Texas Code of Criminal Procedure

The State is entitled to a stay of all trial court proceedings pending resolution of the appeals concerning the $3^{rd}$ Court's dismissal of portions of Defendant's indictment. ^[1] Through its petition for discretionary review, the State is appealing the $3^{rd}$ Court's dismissal of a portion of the

indictment against Defendant. As this is plainly considered an appeal, the State is entitled to a stay of all lower proceedings "pending the disposition of the appeal." ^[2]

Under Article 44.01, the State is only allowed to appeal certain orders and judgments. One of the limited instances in which the State is allowed an appeal is when an order or judgment "dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." ^[3]

Here, the $3^{rd}$ Court's July 24, 2015 Order dismissed a portion of the indictment returned against Defendant, namely Count II of the Indictment, by finding one of the statutes under which Defendant was indicted was unconstitutional. Thus, the State's petition for discretionary review is a permitted appeal of the 3rd Court's order under Art. 44.01(a) of the Texas Code of Criminal Procedure.

Once the State appeals an order or judgment under Article 44.01(a), it is "entitled to a stay in the proceedings pending the disposition of [the] appeal" under Article 44.01(e). Upon request by the State, we respectfully submit the district court has no discretion.

Pursuant to that Article, and in the interest of justice, the State requests this Stay.

B. Rule 25.2 of the Texas Rules of Appellate Procedure

In fact, a stay in the trial proceedings in this Court should be automatic upon the Defendant's Third Court appeal and petition for discretionary review in the Court of Criminal Appeals (and now the State's PDR), due to Rule 25.2 of the Texas Rules of Appellate Procedure.

Subsection (a)(1) of that rule recognizes the State's right to appeal a court's order under $§$ 44.01 the Code of Criminal Procedure. ^[4] When such an appeal is undertaken by the State, rule 25.2(g) mandates that "all further proceedings in the trial court . . . will be suspended until the trial court receives the appellate-court mandate." ^[5]

As this Court has yet to receive the Court of Criminal Appeal's mandate related to the Third Court's order, all proceedings in this Court are suspended until that mandate is passed-down.

Thus, this motion only asks this Court to recognize a stay that is automatic under the Rules of Appellate Procedure.

IV.
RELIEF SOUGHT

Pursuant to the above, the State requests a stay of all trial court proceedings in this Court pending resolution of the current appeals of the Third Court's July 25, 2015 order in the Court of Criminal Appeals.

Respectfully Submitted:

Michael McCrum State Bar No. 13493200 District Attorney Pro Tem Travis County, Texas 700 N. St. Mary's St., Suite 1900 San Antonio, TX 78205 Telephone: (210) 225-2285 Facsimile: (210) 225-7045 michael@mccrumlegal.com

State Bar No. 24012711 Assistant District Attorney Pro Tem Travis County, Texas 206 East $9^{th}$ Street, Suite 1511 Austin, Texas 78701 Telephone: (512) 381-9955 Facsimile: (512) 485-3121 david@sg-llp.com

ATTORNEYS FOR THE STATE OF TEXAS

*10

CERTIFICATE OF SERVICE

This is to certify that on August 2015, a true and correct copy of this the State's Motion to Stay Proceedings Pending Appeal has been emailed to:

David L. Botsford Botsford &; Roark 1307 West Ave. Austin, TX 78701 (512) 479-8040 Facsimile dbotsford@aol.com Thomas R. Phillips Baker Botts, L.L.P. 98 San Jacinto Blvd., Ste. 1500 Austin, TX 78701 (512) 322-8363 Facsimile

Tom.phillips@bakerbotts.com Anthony G. Buzbee The Buzbee Law Firm 600 Travis St., Ste. 7300 Houston, TX 77002 (713) 223-5909 Facsimile tbuzbee@txattorneys.com

*11

NO. D-1-DC-14-100139

STATE OF TEXAS

vs

JAMES RICHARD PERRY

$§$

IN THE DISTRICT COURT § § 390th DISTRICT COURT § § TRAVIS COUNTY, TEXAS

ORDER

On this day came on to be considered the State's Motion to Stay Proceedings Pending Appeal.

IT IS HEREBY ORDERED that all trial court proceedings shall be stayed until all legal matters are resolved in the Court of Criminal Appeals.

SIGNED this day of 2015.

*12

NO. D-1-DC-14-100139

STATE OF TEXAS vs JAMES RICHARD "RICK" PERRY

$§$

IN THE DISTRICT COURT

$§$ 390th DISTRICT COURT § $§$ TRAVIS COUNTY, TEXAS

AMENDED MOTION TO STAY PROCEEDINGS PENDING APPEAL

TO THE HONORABLE JUDGE RICHARDSON:

Now COMES the State of Texas, by and through Michael McCrum, District Attorney Pro Tem, Travis County, Texas, and pursuant to Tex. Code CrIm. Proc. article 44.01(e) and Tex. R. App. P 25.2(g) presents this Motion.

$𝐋$

To date, the prosecution of both of these counts has proceeded under one indictment with one cause number and for resolution by one trial.

On July 24, 2015 the Third Court of Appeal issued an opinion effectively dividing the case into two separate actions:

*13

It is unknown whether the Court of Criminal Appeals will grant review on either or both grounds.

II.
THE STATE'S POSITION

*14

III.
LEGAL SUPPORT

A. Article 44.01 of the Texas Code of Criminal Procedure

*15

indictment against Defendant. As this is plainly considered an appeal, the State is entitled to a stay of all lower proceedings "pending the disposition of the appeal." ^[2]

Pursuant to that Article, and in the interest of justice, the State requests this Stay.

B. Rule 25.2 of the Texas Rules of Appellate Procedure

*16

As this Court has yet to receive the Court of Criminal Appeal's mandate related to the Third Court's order, all proceedings in this Court are suspended until that mandate is passed-down.

Thus, this motion only asks this Court to recognize a stay that is automatic under the Rules of Appellate Procedure.

IV.
RELIEF SOUGHT

Respectfully Submitted:

Michael MCCrum State Bar No. 13493200 District Attorney Pro Tem Travis County, Texas 700 N. St. Mary's St., Suite 1900 San Antonio, TX 78205 Telephone: (210) 225-2285 Facsimile: (210) 225-7045 michael@mccrumlegal.com

*17

TYMOT3

DAVID M. GONZALEZ State Bar No. 24012711 Assistant District Attorney Pro Tem Travis County, Texas 206 East $9^{th}$ Street, Suite 1511 Austin, Texas 78701 Telephone: (512) 381-9955 Facsimile: (512) 485-3121 david@sg-llp.com

ATTORNEYS FOR THE STATE OF TEXAS

*18

CERTIFICATE OF SERVICE

This is to certify that on September 1, 2015 a true and correct copy of this the State's Amended Motion to Stay Proceedings Pending Appeal has been emailed to:

Tom.phillips@bakerbotts.com Anthony G. Buzbee The Buzbee Law Firm 600 Travis St., Ste. 7300 Houston, TX 77002 (713) 223-5909 Facsimile tbuzbee@txattorneys.com David M. Gonzalez

*19

NO. D-1-DC-14-100139

STATE OF TEXAS vs JAMES RICHARD PERRY

$§$

IN THE DISTRICT COURT

§ § §

TRAVIS COUNTY, TEXAS

ORDER

On this day came on to be considered the State's Amended Motion to Stay Proceedings Pending Appeal.

IT IS HEREBY ORDERED that all trial court proceedings shall be stayed until all legal matters are resolved in the Court of Criminal Appeals.

SIGNED this day of 2015.

*20

(

CLERK'S RECORD CERTIFICATE

THE STATE OF TEXAS COUNTY OF TRAVIS

I, VELVA L. PRICE, Clerk of the District Courts of Travis County, Texas, do hereby certify that the documents contained in this record to which this certifications is attached are al of the documents specified by Texas Rule of Appellate Procedure 34.5 (a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5 (b).

GIVEN UNDER MY HAND AND SEAL of said Court at Office in Austin, Travis County, Texas, this the $\frac{1}{1}$ day of $\frac{5}{1}$ p t , 2015 .

VELVA L. PRICE
District Clerk, Travis County, Texas

NOTES

$^{1}$ See Tex. Code Crim. Proc. arts. 44.01(a) and (e).

$^{2}$ See Tex. Code Crim. Proc. art. 44.01(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").

$^{3}$ See Tex. Code Crim. Proc. arts. 44.01(a)

$^{4}$ Tex. R. App. P. 25.2(a)(1). As discussed above, Tex. Code Crim. Proc. § 44.01(a) allows the State to appeal a court order which effectively dismisses a portion of the indictment-as is the case in the Third Court's July 24, 2015 order.

$^{5}$ Tex. R. App. P. 25.2(g) (emphasis added).

$^{1}$ See Tex. Code Crim. Proc. arts. 44.01(a) and (e).

$^{2}$ See Tex. Code Crim. Proc. art. 44.01(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").

$^{3}$ See Tex. Code Crim. Proc. arts. 44.01(a)

$^{5}$ Tex. R. App. P. 25.2(g) (emphasis added).

TO THE HONORABLE JUDGE RICHARDSON:

I.

II. THE STATE'S POSITION

III. LEGAL SUPPORT

A. Article 44.01 of the Texas Code of Criminal Procedure

B. Rule 25.2 of the Texas Rules of Appellate Procedure

IV. RELIEF SOUGHT

ATTORNEYS FOR THE STATE OF TEXAS

CERTIFICATE OF SERVICE

NO. D-1-DC-14-100139

STATE OF TEXAS

vs

§

ORDER

NO. D-1-DC-14-100139

§

IN THE DISTRICT COURT

AMENDED MOTION TO STAY PROCEEDINGS PENDING APPEAL

TO THE HONORABLE JUDGE RICHARDSON:

𝐋

II. THE STATE'S POSITION

III. LEGAL SUPPORT

A. Article 44.01 of the Texas Code of Criminal Procedure

B. Rule 25.2 of the Texas Rules of Appellate Procedure

IV. RELIEF SOUGHT

TYMOT3

ATTORNEYS FOR THE STATE OF TEXAS

CERTIFICATE OF SERVICE

§

IN THE DISTRICT COURT

(

CLERK'S RECORD CERTIFICATE

THE STATE OF TEXAS COUNTY OF TRAVIS

VELVA L. PRICE District Clerk, Travis County, Texas

NOTES

II.
THE STATE'S POSITION

III.
LEGAL SUPPORT

IV.
RELIEF SOUGHT

$§$

$§$

$𝐋$

II.
THE STATE'S POSITION

III.
LEGAL SUPPORT

IV.
RELIEF SOUGHT

$§$

VELVA L. PRICE
District Clerk, Travis County, Texas