Burgess - District Clerk Harris County Envelope No. 98683562
By: Michael Robbins Filed: 3/20/2025 11:17 AM
CAUSE NO.: 1767513 1767514 1881218
1881219
THE STATE OF TEXAS § IN THE DISTRICT COURT OF
v.
HARRIS COUNTY, TEXAS
STEVEN F. HOTZE § 177th JUDICIAL DISTRICT
DEFENDANT STEVEN F. HOTZE’S MOTION TO DISMISS FOR DISCOVERY ABUSE
TO THE HONORABLE EMILY MUNOZ DETOTO:
For years, the Harris County District Attorney’s Office has trampled on Dr. Hotze’s rights. Because Dr. Hotze opposed her in elections and publicly stood for conservative values, former Harris County District Attorney Kim Ogg targeted Dr. Hotze by engaging in politically motivated prosecutions. In this Motion to Dismiss, Dr. Hotze requests relief from Ogg’s abuse of the discovery process and her failure to produce documents in violation of this Court’s orders and Texas Code of Criminal Procedure Article 39.14.
I. Background
In 2020, in his capacity as president of Liberty Center for God & Country (“Liberty”), Dr. Hotze was investigating vote fraud through a group of independent contractors hired by Liberty. One of the independent contractors, Mark Aguirre, (“Aguirre”), was involved in an automobile accident with David Lopez (“Lopez”). No one was injured in the accident and Dr. Hotze was not present. The vote fraud investigation uncovered information related to vote fraud in, among other things, the ballot by mail process, i.e., deceased individuals voting by mail. The information related to vote fraud was presented to the Harris County District Attorney’s Office (“DA’s Office”). The DA’s Office chose not to investigate.
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II.
Chronology of Key Events Related to Motion to Dismiss
October 19, 2020 Aguirre and Lopez were involved in an automobile accident.
March 30, 2021 Lopez sues Dr. Hotze for automobile accident in civil court-Lopez does not sue Aguirre. Lawyer who represents Democratic Party represents Plaintiff Lopez.
May 2021 Plaintiff Lopez’s civil attorney sends discovery to Dr. Hotze.
December 14, 2021 Aguirre, not Dr. Hotze, indicted for unlawful restraint and aggravated assault with a deadly weapon. (Discovery in civil case had been occurring for about a year. No target letter sent to Dr. Hotze.)
January 2022 Dr. Hotze’s deposition was taken by Plaintiff Lopez’s civil attorneys.
April 2, 2022 Dr. Hotze held an Election Integrity gala with over 500 in attendance at the Downtown Houston Hyatt Regency Hotel. Keynote speakers were Mike Lindell (My Pillow) and Texas Attorney General Ken Paxton.
April 20, 2022 Dr. Hotze indicted by a grand jury for Aggravated Assault with a Deadly Weapon and Unlawful Restraint Serious Bodily Injury.
May 23, 2022 Aguirre was added as a party to the civil suit by Lopez; over a year and a half after Aguirre was indicted.
July 12, 2022 After reviewing the voluminous files, counsel for Dr. Hotze discovers evidence missing.
October 11, 2022 Dr. Hotze files a second request to comply with article 39.14 and specifically outlined all documents and evidence sought. This request was filed under cause number 1767514.
UnofficialCopyOfficeofMarilynBurgessDistrictClerk
November 16, 2022 State refused to produce all emails, documents, correspondence, text messages, calendar entries, notes, written agreements, and/or other documents evidencing conversations between any employee of the Harris County District Attorney’s Office and Dickey Grigg and/or Scott Brazil between the period of January 1, 2020 to present day. The State notified defense counsel that it would produce other transcripts of phone calls of Valerie McGilvery and conversations
B. Texas Code of Criminal Procedure Article 39.14
In Texas, the process of discovery is governed by article 39.14 of the Code of Criminal Procedure. The code states that the State must allow a defendant to access any evidence that the State possesses that sheds light on the case. This is important because the State is forced to share evidence that might not necessarily be helpful to its case.
In 2013, the Michael Morton Act “revamped Article 39.14 and completel y “overhaul[ed]” discovery in Texas, and “[o]n the whole” made “disclosure the rule and nondisclosure the exception” in Texas. Watkins v. State, 619 S.W.3d at 277 (Tex. Crim. App. 2021).
“According to the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantees of due process.” Watkins, 619 S.W.3d at 291
“On the whole, the statutory changes [of Article 39.14] broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception.” Watkins, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021). Significantly, Article 39.14(h) places upon the State a freestanding duty to disclose all “exculpatory, impeaching, and mitigating” evidence to the defense that tends to negate guilt or reduce punishment. Id. The Legislature did not limit the applicability of Article 39.14(h) to “material” evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland. Id. (emphasis added). Subsection H blankets the exact type of exculpatory evidence at issue in the Michael
Page 5 of 12 promotes justice through the sharing of information. The idea of discovery is simple: it permits a defendant access to information or evidence about their case that they cannot acquire on their own. Any evidence that the State possesses that could help or hurt a defendant’s case must be shown to the defendant or the defendant’s attorney. This showing, or “discovery,” of evidence allows an attorney to better prepare a defense for their client.
Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not “material.” Watkins, 619 S.W.3d at 277.
Any evidence that does not fall under Article 39.14(h), that is, any evidence that does not tend to negate guilt or mitigate punishment, must be disclosed upon request without any showing of “good cause” or the need to secure a discretionary trial court order. Disclosure is mandatory and must occur “as soon as practicable.” Watkins at 277-278 (emphasis added).
C. Disclosure is the Rule, Non-Disclosure is the Exception
In Watkins, the Court of Criminal Appeals addressed the difference between “material” evidence disclosure pre-Michael Morton Act and a post-Michael Morton Act disclosure: “On the whole, the statutory changes [Michael Morton Act] broaden criminal discovery for defendants, making disclosures the rule and nondisclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. “Also the statute requires disclosure of evidence that merely ‘tends’ to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevance. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidenced. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is ‘material’ under Brady v. Maryland.” Watkins, 619 S.W.3d 265 (Tex. Crim. App. 2021).
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G. Discovery Abuse and Prosecutorial Misconduct
Prosecutorial misconduct includes, but is not limited to, discovery abuse. The misconduct and discovery abuse occur when the prosecution fails to disclose exculpatory evidence, suppresses evidence, or engages in other misconduct that violates the defendant's rights. 1 Discovery abuse occurs when someone misuses the process of gathering information in a legal case. This happens when someone uses the legal process to obstruct their opponent from receiving documents or other information they are entitled to under the law. It can also happen when someone does not respond properly to requests for information. Basically, it means not following the rules of the Code of Criminal Procedure or a court order when trying to get information for a case.
1. Sanctions for Discovery Abuse and Prosecutorial Misconduct
“The prosecutor has more control over life, liberty, and reputation than any other person in America.” 2 Prosecutorial misconduct occurs when a prosecutor deliberately engages in dishonest or fraudulent conduct calculated to produce an unjust result. “The prosecutor in a
1 Dr. Hotze has a Motion to Dismiss for Prosecutorial Misconduct pending on other grounds not necessarily included in this motion, including, but not limited to, the conspiracy between the Harris County District Attorney’s Office and the civil lawyers to violate Dr. Hotze’s Fifth Amendment rights.
2 Former U.S. Attorney General, U.S. Solicitor General, and Supreme Court Justice of the United States, Robert H. Jackson.
Page 9 of 12 would be relevant to this case. The evidence specifically relates to violations of, among other things, Dr. Hotze’s Fifth Amendment and Due Process rights under the United States and Texas Constitutions. Furthermore, the State did absolutely nothing to preserve the evidence. In Arizona v. Youngblood, 488 U.S. 51 (1988), the United States Supreme Court expanded Brady to include situations where the State fails to preserve exculpatory evidence. 488 U.S. at 57. As a result of the State allowing spoliation of evidence to occur, Dr. Hotze has been irreparably prejudiced by its conduct.
2. Remedy-Dismissal with Prejudice
The trial court has discretion to fashion a remedy it deems appropriate. State v. Heath, 696 S.W.3d 677, 708 (Tex. Crim. App. 2024). It is well settled law that a trial court may dismiss an indictment in response to prosecutorial misconduct-regardless of whether that misconduct is specific or enumerated in the Code of Criminal Procedure See State v. Frye, 846 S.W.2d 443, 448 (Tex. App.-Houston 1992); see also United States v. Garza-Juarez, 992 F.2d 896, 905 (9th Cir. 1993) (“A district court may exercise its supervisory powers to dismiss an indictment to remedy the violation of recognized rights to deter illegal conduct and ‘to preserve judicial
10 of 12 criminal case shall…refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel…[and] not initiate and encourage efforts to obtain from a unrepresented accused a waiver of important pre-trial, trial, or post-trial rights….” Tex. R. Disc. Prof’l. Cond. 3.09. “A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate.” Id. at Comment 1. “In addition, a prosecutor should not initiate or exploit any violation of a suspect’s right to counsel….” Id Texas law has long protected against unethical and unlawful prosecutorial conduct. Article 2.01 of the state’s Code of Criminal Procedure provides, among other things, that …[i]t shall be the primary duty of prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.” If the court finds that the prosecution has abused the discovery process, then it may impose sanctions, including dismissal of the case. Prosecutorial misconduct can justify dismissal with prejudice of a criminal case without the prosecutor's consent. State v. Fry, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995).
Here, the prosecutorial misconduct, and the underlying targeting of a political opponent, is so egregious it warrants dismissal of the indictments. To give effect to the Texas Disciplinary Rules of Professional Conduct, the Texas Code of Criminal Procedure, and the United States and Texas Constitutions, and in order to protect Dr. Hotze’s right to a fair trial, this Court should dismiss all the indictments against Dr. Hotze with prejudice.
IV. Conclusion
As observed on the national level, politically motivated prosecutions are inherently flawed in that the politically motivated prosecutor must manufacture or dispose of exculpatory evidence. In most cases, the goal of the politically motivated prosecutor is to hurt the reputation of her opponent and force him to spend large sums of money to defend himself, regardless of whether the prosecution is successful. Here, Kim Ogg’s attempt to prosecute her political opponent, Dr. Hotze, resulted in false allegations, unlawful coordination with civil lawyers, and the destruction of exculpatory evidence. This Court should stop this former rogue prosecutor from further waging her political vendetta against Dr. Hotze For all the reasons described above, this case should be dismissed with prejudice in the interest of justice.
11 of 12 integrity by ensuring that a conviction rests on appropriate considerations validly before the jury.’”)(quoting United States v. Hasting, 461 U.S. 499, 505 (1983)). A dismissal with prejudice means the case cannot be refiled. Examples of discovery abuse include failure to disclose exculpatory evidence (the prosecution has a duty to disclose evidence that could be used to exonerate the defendant), suppression of evidence (the prosecution cannot intentionally suppress or destroy evidence that is relevant to the case), and engaging in misconduct (the prosecution cannot engage in other misconduct that violates the defendant's rights, such as making improper arguments or eliciting inadmissible evidence)
Respectfully submitted, WOODFILL LAW FIRM, PC
/s/ Jared Woodfill___ Jared Woodfill
Tex. Bar No. 00788715
3 Riverway, Ste. 750
Houston, Texas 77056
Phone: 713.751.3080
E-Mail: jwoodfill@woofilllaw.com
CERTIFICATE OF SERVICE
This is to certify that on March 20, 2025, a true and correct copy of the above document was served on the Harris County District Attorney’s Office by email or electronic transmission.
/s/
Jared Woodfill
Jared Woodfill
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