Filed: 11/9/2015 6:57:16 PM

Andrea S. Thompson
District Clerk
Collin County, Texas
By Nina Cummins Deputy
Envelope ID: 7754245

NO. 416-81913-2015
NO. 416-82148-2015
NO. 416-82149-2015
THE STATE OF TEXAS
V.
WARREN KENNETH PAXTON JR.

IN THE DISTRICT COURT

COLLIN COUNTY, TEXAS
416TH JUDICIAL DISTRICT

STATES REPLY TO DEFENDANTS MOTION TO QUASH

INDICTMENTS BECAUSE OF ATTORNEY PRO TEMS1
DISCLOSURE OF GRAND JURY INFORMATION
AND VIOLATION OF GRAND JURY SECRECY
TO THE HONORABLE GEORGE GALLAGHER, PRESIDING JUDGE:
COMES NOW, THE STATE OF TEXAS, by and through its undersigned
Collin County District Attorneys Pro Tem, Brian Wice, Kent Schaffer, and Nicole
DeBorde, and files its Reply to Defendants Motion to Quash Indictments Because of
Attorney Pro Tems Disclosure of Grand Jury Information and Violation of Grand Jury
Secrecy [Motion]. The State challenges all factual assertions in this Motion and
submits the following factual account within its reply.
I. Introduction: Paxton Tries to Change the Conversation
In the wake of his two indictments for first-degree felony securities fraud and the
third-degree felony of failing to register as a financial investment advisor, Paxton has
taken a page from the play book of Don Draper, the Madison Avenue advertising
executive on MAD MEN, who told a colleague embroiled in a similar strait, If you
1

The correct plural possessive of Attorney Pro Tem is actually Attorneys Pro Tem.
1

dont like whats being said, then change the conversation.2

Thats exactly what Paxton has done in this motion.
Paxton labors to change the conversation from the crimes alleged in these
indictments by arguing, albeit without factual or legal support, that granting the Instant
Motion to Quash is the only appropriate remedy because the Special Prosecutors
violated grand jury secrecy and Rule 3.07 of the Texas Disciplinary Rules by talking to
the media.3 Motion at 15. Knowing that there is absolutely no legal authority for the
extraordinary pre-trial relief seeks, Paxtons sole reason for filing this pleading is to
cast the Special Prosecutors as the bad guys4 in the court of public opinion.5 As set
out below, Paxtons penchant for changing the conversation, and crafting an alternative
narrative that gratuitously piles on the Special Prosecutors is an artifice that falls far
short of meeting the Herculean burden imposed upon him in this pre-trial setting. See
Wheat v. State, 537 S.W.2d 20, 21 (Tex.Crim.App. 1976)(Paxton bears the burden of

MAD MEN, Love Among the Ruins, Season 3, Episode 2 (2009).

Paxton also claims that the Special Prosecutors comments to the media violated ABA
Model Rule 3.6. Motion at 12. This avowal is unavailing. Not only is the ABA Model Rule
not binding on Texas lawyers, it also creates the same haven for extrajudicial comments as
Rule 3.07 discussed below. See ABA Model Rule 3.6(b)(1-4).

Paxtons ploy, as any Google search of this case will readily reveal, is merely the latest in
a series of unwarranted personal attacks leveled against the Special Prosecutors in the media
by Paxtons spokesmen, public relations operatives, and political supporters.

Paxtons stratagem in casting the Special Prosecutors as the villains in this proceeding is as
predictable as it is unavailing. In another of his myriad motions to quash, Paxton has cast
Judge Chris Oldner, a respected and veteran Collin County District Judge, as the malefactor
responsible for Paxtons trio of indictments.
2

proof on his pre-trial motion to quash these indictments).

II. The Special Prosecutors Comments to the Media
Were Protected by Rule 3.07(c)(1-5) and Stern v. State
and Did Not Violate Grand Jury Secrecy
Rule 3.07(c) says that, A lawyer will ordinarily violate [this rule] by making an
extrajudicial statement ... when the lawyer merely states:
(1) the general nature of the claim or defense;
(2) the information contained in the public record;
(3) that an investigation of the matter is in progress, including the general scope of the
investigation, the offense, claim or defense involved;
(4) except when prohibited by law, the identity of the persons involved in the matter;
[and]
(5) the scheduling or result of any step in litigation.
In Stern v. State ex rel Ansel, 869 S.W.2d 614 (Tex.App. Houston [14th Dist.]
1994, writ dend), the Fourteenth Court of Appeals made it clear that the cloak of grand
jury secrecy does not create a blanket prohibition against prosecutors commenting on
grand jury proceedings:
In conclusion, we wish to point out that we are not holding
that prosecutors may never discuss, in general terms, grand
jury proceedings. In fact, most prosecutors discuss what
they expect to prove or plan to investigate.6 To pull such a
6

While Paxton points to Rule 3.09 (Special Responsibilities of a Prosecutor) in an attempt

to fortify his claim, Motion at 11-12, he fails to acknowledge that 1(a) precludes a prosecutor
from going forward on a charge the prosecutor knows is not supported by probable cause.
By telling the electronic media that he believed there was reason to present the result of the
Rangers investigation to the grand jury, the Special Prosecutor did no more than telling the
public that he was fulfilling his obligation under 1(a), a comment that, as recounted above, is
also protected by Rule 3.07(c)(3) & (5), and by the holding in Stern.
3

cloak of absolute secrecy about grand jury proceedings

would be futile in this era of mass communications where it
is easily known which witnesses are appearing before the
grand jury, the reason for their appearance, and even what
they are likely to discuss. The requirement of secrecy should
be imposed only to the extent that it contributes to the
effectiveness of the grand jury as that institution carries out
its investigative and screening functions. Beyond that,
however, the requirement of confidentiality serves no
purpose.
Id. at 624. (citation omitted)(emphasis added).
Viewed against this backdrop of authority, Paxtons assertion that the Special
Prosecutors comments to the electronic media violated Rule 3.07, Motion at 2-4,
crumbles. Every televised interview Paxton now carps about clearly fell within the
protected areas of extrajudicial speech in Rule 3.07(c)(1-5), as well as the holding in
Stern. 7

Tellingly, Paxton makes no attempt to favor this Court with any legal

reasoning or analysis to the contrary.8

Moreover, contrary to Paxtons protestations, the interview given to the New

Paxton argues that the Special Prosecutors persistently engage[d] in a series of grand jury
leaks. Motion at 14. Short of the New York Times interview, the only extrajudicial comment
that comes within a time zone of a grand jury leak, the remainder of the Special Prosecutors
remarks were clearly protected as recounted above. Paxtons use of the term series is simply
unsupported. See www.merriam-webster.com (defining series as a number of things or
events of the same class coming one after another in spatial or temporal succession)(last
visited November 5, 2015).
8

Indeed, while Paxton cites Stern, albeit with a nebulous see also reference, Motion at 13,
his inability or unwillingness to acknowledge, let alone distinguish that portion of its holding
that drives a stake through the heart of his contention, speaks volumes about the intrinsic lack
of merit to the contention itself.
4

York Times by the Special Prosecutor that confirmed that Paxton had been indicted, did
not violate Rule 3.07 because it revealed the result of any step in the litigation, which
was protected by (c)(5). While Paxton contends that this interview violated grand
jury secrecy by revealing the existence of sealed9 indictments in violation of Article
20.22(b) of the Code of Criminal Procedure, Motion at 8-9, his argument proves too
much. The Special Prosecutors interview with the Times revealing that Paxton had
been indicted did not violate the spirit and tenor of Article 20.22(b). The legislative
intent behind Article 20.22(b) is to keep a defendant who has been indicted from fleeing
jurisdiction before he can be arrested, see Rothschild v. State, 7 Tex.Ct.App. 519, 537
(1880)(grand jury secrecy is designed, inter alia, to prevent escape of defendants who
will be indicted), and the Special Prosecutors have never claimed Paxton was a flight
risk. To argue, as Paxton does, that confirming that he had been indicted some 48
hours before he was to voluntarily surrender violated both Rule 3.07 and Article
20.22(b), is to strain at a gnat and swallow a camel.10
9

The use of the term sealed is misleading inasmuch as Texas, unlike the federal courts, has
no provision expressly authorizing the sealing of an indictment by court order. In other
words, there is a critical distinction between an indictment that is sealed by court order, and
one, as here, that is returned before the defendant is arrested or surrenders. Moreover, it is
uncontradicted that these indictments remained unsealed for some 90 minutes after they were
handed up on July 28, 2015.
10

Paxton cites a report from NBCDFW, Channel 5, that two people close to the case
confirmed that Paxton had been indicted on two charges of first-degree securities fraud and
one count of failure to register as an investment advisor and would surrender the following
Monday. Motion at 6. While Paxtons incessant use of italics implies that the two people
were the Special Prosecutors when, in fact, neither Special Prosecutor ever spoke with Scott
Gordon, who reported the story for NBCDFW. Moreover, Paxton fails to acknowledge this
report makes no mention of who the sources were, nor does he recognize that the NBCDFW
5

Finally, even assuming that any extrajudicial comment the Special Prosecutors
made may have violated Rule 3.07, Paxton ignores the tenet that the violation of a
disciplinary rule does not entitle him to the pre-trial windfall he seeks unless he can
show the violation affected his substantial rights or deprived him of a fair trial.
Armstrong v. State, 897 S.W.2d 361, 366 n. 5 (Tex.Crim.App. 1995)(A violation of a
disciplinary rule by the prosecutor, in and of itself, would not mandate a reversal of
appellants conviction.); Pannell v. State, 666 S.W.2d 96, 98 (Tex.Crim.App. 1984)
([W]e now hold that the disciplinary rules of the Code of Professional Responsibility
are not laws of the State of Texas).
III. Paxton Offers No Controlling Case Law that
Supports the Extraordinary Pre-Trial Windfall He Seeks
and Cannot Come Close to Demonstrating Prejudice or Harm
Aside from his passing see also reference to Stern, a case he does not, because
he cannot, distinguish, the only case Paxton cites is Ray v. State, 561 S.W.2d 480, 481
(Tex.Crim.App. 1977), for the proposition that, Violation of grand jury secrecy may
be grounds for quashing an indictment when the defendant can show harm from those
disclosures. Motion at 14. But Paxton misconstrues the holding in Ray, even as he
fails to provide the Court with its factual underpinnings that eviscerate his argument.
In Ray, the court did no more than restate the longstanding rule that when the
evidence shows that unauthorized persons were present during the deliberations of the

report ran well before the Times interview was posted online during mid-afternoon on August
1, 2015.
6

grand jury the indictment must be invalidated and a new trial ordered. Id. Paxtons
attempt to force the square peg of Rays reasoning the presence of unauthorized
persons in the grand jury room during deliberations into the round hole of his
groundless complaint the Special Prosecutors commented on matters clearly protected
by Rule 3.07(c)(1-5) and Stern is not merely counterintuitive, it is wholly without
merit. Cf. SEC v. Chenery Corp., 332 U.S. 194, 214 (1947)(Jackson, J.,
dissenting)(Now I realize what Mark Twain meant when he said, The more you
explain it, the more I dont understand it.).
Paxtons bold attempt at making the requisite showing of harm, one bereft of
supporting evidence, that the Special Prosecutors remarks were clearly timed and
calculated to taint the North Texas jury pool, Motion at 14, is as untenable as it is
unwarranted on multiple levels. First, this case will not likely be tried for another year,
more than enough time for any potential juror to recall what anyone said about this
proceeding in the summer of 2015. Second, if the North Texas jury pool Paxton
alludes to means Collin, Dallas, and Tarrant Counties, and this Court can take judicial
notice that the combined populations of these three counties totals well in excess of six
million people, it is wholly likely that twelve citizens can be found who were unfazed
and unaffected by any comments the Special Prosecutors made a year before.

Third,

given the high-profile nature of this case, with the accused being Texas top law
enforcement official, and the nature of the 24-hour news cycle, the Internet, and social
media, it is difficult to take Paxtons claim of prejudice seriously. Fourth, Paxtons
7

avowal that, the Attorney Pro Tems disclosures ... was calculated to instruct potential
grand and District Court jurors that they should indict and later convict Paxton, Motion
at 14 (sic in passim), is not merely unfounded, it ignores the well settled tenet that grand
and petit jurors are presumed to follow the trial courts instructions not to be swayed by
passion, prejudice or by what they might have been seen, heard, or watched in the
media. See e.g., Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998)([W]e
presume [the jury] followed the courts instructionsin reaching their verdict.).
Even viewing the meager facts Paxton can marshal in the light most favorable to
him, the exact opposite of the burden he must bear, Paxtons conclusory, unsupported,
and unsupportable averments fail to show any misconduct by the Special Prosecutors
calling into question the integrity of these indictments, let alone any discrete prejudice
or harm, and most important of all, a single case authorizing this Court to award Paxton
the extraordinary pre-trial windfall he seeks.

Accordingly, Court will not, indeed,

cannot abuse its discretion in denying Paxtons motion to quash.11

11

See e.g., State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005)(trial courts decision
is not an abuse of discretion so long as it is not arbitrary or unreasonable); Weatherred v. State,
15 S.W.3d 540, 542 (Tex.Crim.App. 2000)(trial courts decision is not an abuse of discretion
unless it is outside the zone of reasonable disagreement); McDonald v. State, 911 S.W.2d 798,
800 (Tex.App. San Antonio 1995, pet. dismd)(trial court abuses its discretion only when
[its] decision was so clearly wrong as to lie outside the zone within which reasonable persons
might disagree). Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.
1985)(The mere fact that a trial judge may decide a matter within his discretionary authority
in a different manner than an appellate judge in a similar circumstance does not demonstrate
that an abuse of discretion has occurred.).
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IV. Prayer for Relief

The State asks that this Court deny Paxtons motion to quash.
Respectfully submitted,
/s/ Kent A. Schaffer
KENT A. SCHAFFER
712 Main, Suite 2400
Houston, Texas 77002
(713) 228-8500 PHONE
(713) 228-0034 FAX
Bar No. 17724300
kentschaffer@gmail.com
BRIAN W. WICE
The Lyric Centre
440 Louisiana, Suite 900
Houston, Texas 77002
(713) 524-9922
PHONE
(713) 236-7768 FAX
Bar No. 21417800
wicelaw@att.net
NICOLE DEBORDE
712 Main, Suite 2400
Houston, Texas 77002
(713) 228-8500 PHONE
(713) 228-0034 FAX
Bar No. 00787344
nicole@bsdlawfirm.com
ATTORNEYS PRO TEM
THE STATE OF TEXAS

CERTIFICATE OF SERVICE
Pursuant to TEX.R.APP.P. 9.5(d), I hereby certify that a true and correct copy of
the above and foregoing reply was served via e-mail delivery through eFile.TXCourts.gov
on November 9, 2015 to all defense counsel listed below:
Dan Cogdell
William Mateja
Terri Moore
Heather Barbieri
Paul Creech
Q. Williams
Stephanie McGuire
J. Mitchell Little
Sunida Mejia
/s/ Kent A. Schaffer
KENT A. SCHAFFER

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