CAUSE NO.

2015-2222-C1

THE STATE OF TEXAS IN THE 19th DISTRICT

V. COURT OF

CODY LEDBETTER MCLENNAN COUNTY, TEXAS

DEFENDANTS RENEWED
MOTION TO RECALL DISCOVERY
AND
TO DISQUALIFY MCLENNAN COUNTY DISTRICT ATTORNEYS OFFICE

Comes now, Cody Ledbetter, by and through the undersigned counsel, and presents this

Renewed Motion to Recall Discovery and to Disqualify the McLennan County District Attorneys

Office. As will be shown below, illegal and outrageous government conduct in this case must be

remedied by recalling discovery, deleting electronic files, and removing the McLennan County

District Attorneys Office from further litigation in this matter under the Due Process and Due

Course of Law protections of the United States and Texas Constitutions, respectively:

1. VIOLATIONS OF TEXAS PENAL CODE SEC. 21.16 BY MCLENNAN COUNTY

DISTRICT ATTORNEYS OFFICE
Mr. Ledbetter had pictures and/or videos of himself and his wife engaging in consensual sexual

activity stored on his cellular telephone. These images were consensually taken by the couple, and

were not meant for anyone but the two of them to view. Following his arrest, his telephone was

searched and these images copied and inspected by law enforcement, even though they were

outside the scope of any warrant or other authorization as there was no reason to believe such

images had a scintilla of evidentiary value. Following this inspection, instead of deeming the

images irrelevant to any litigation and deleting them, the images were copied over one hundred
and fifty (150) times, and distributed to counsel and staff for all of the Twin Peaks Defendants

as part of discovery.

There is no rational or credible argument that these images have any relevance at all on

this (or any other) criminal case. These private and intimate images, intended to be seen only by

the Defendant and his wife, have been made available to hundreds if not thousands of people (when

other defendants, their attorneys, and the staff of those attorneys law firms and/or investigators,

are included.)1 This constitutes a gross violation of Sec. 21.16(b) of the Texas Penal Code:

Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL

MATERIAL
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally
discloses visual material depicting another person with the person's intimate parts
exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in
which the depicted person had a reasonable expectation that the visual material
would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in
any manner, including through:
(A) any accompanying or subsequent information or material related to the
visual material; or
(B) information or material provided by a third party in response to the
disclosure of the visual material.
The images distributed serve no legitimate law enforcement or litigation purposes, and can

only have been distributed to cause embarrassment and harm to Mr. Ledbetter and his wife. No

1
It was claimed by the State that the co-Defendants were not allowed to view discovery, and
therefore co-defendants could not have seen these images. However, that is not true. Under Art.
39.14(f), defendants may view, but not have copies of, any discovery provided to defense counsel.
legitimate purpose could have been served or intended by the dissemination of these images. It

cannot be maintained that the State did not know what they were distributing; the State took

extensive time to examine the contents of Mr. Ledbetters telephone before so widely distributing

these images. Distributing over one hundred and fifty copies of these intimate images, knowing

each copy could and likely would be seen by a number of people, without any legitimate belief

that they were somehow legitimately case-related, appears to be not merely an intentional and

particularly invasive tort, but an indefensible violation of criminal law as well. Each image released

constitutes a separate Class A Misdemeanor and each set of discovery contained numerous

images, constituting, in all, well over a thousand distinct and chargeable criminal offenses. Such

gratuitously and egregiously harmful conduct, aimed at both the accused and his completely

innocent wife, cannot be excused with a simple wink and a nod.

It is beyond cavil that the conduct by the McLennan County District Attorneys Office,

gratuitously, tortuously and criminally invading the privacy of both Mr. Ledbetter and his wife, is

outrageous. In fact, one can readily conclude that committing hundreds of criminal offenses

gratuitously or vindictively during a prosecution is as rare and egregious an example of

governmental misconduct as may be found. The unlawful and intentional or knowing disclosure

of intimate visual images belonging to the Defendant and his spouse, under the guise of disclosure,

is so outrageous that it violates the due process clause by denying fundamental fairness and is

shocking to any universal sense of justice. See, e.g., Reese v. State, 877S.W.2d 328, 333

(Tex.Crim.App. 1994).

2. THE MICHAEL MORTON ACT

It has previously been asserted by the State, and accepted by this Honorable Court, that the

State was in some way obliged to disseminate these images under the Michael Morton Act,
Texas Code Crim.Proc. Art. 39.14. There is no merit to this assertion. In fact, the law is so clearly

opposed to this position that it is difficult to believe any attorney asserted it in good faith.

The Michael Morton act specifically provides for situations in which material that is not

germane to any legal manner is accumulated by the State. The Act clearly provides that it only

covers items not otherwise privileged that constitute or contain evidence material to any matter

involved in the action Art. 39.14(a). The State is not required to permit the inspection, or to

produce, material that does not constitute or contain evidence material to any matter involved in

the action, and the steps for the State to take when irrelevant material is obtained are clearly

spelled out. There is no justification for making public intimate images, in violation of Texas Penal

Code 21.16, merely in order to avoid following the requirements of the Morton Act, as spelled out

below:

(c) If only a portion of the applicable document, item, or information is subject to

discovery under this article, the state is not required to produce or permit the inspection of
the remaining portion that is not subject to discovery and may withhold or redact that
portion. The state shall inform the defendant that a portion of the document, item, or
information has been withheld or redacted. On request of the defendant, the court shall
conduct a hearing to determine whether withholding or redaction is justified under this
article or other law.

It cannot be claimed with a straight face that these intimate images constitute or contain

evidence material to any matter involved in the action. They are not discoverable under the

Michael Morton Act, Tex.Code Crim.Proc. Art. 39.14. The State was under no duty to turn these

images over, and, under Texas Penal Code 21.16, was forbidden to do so. Considering themselves

above the law, they persisted in doing so. Yet not even District Attorneys or their assistants are

entitled to break the law in Texas. These crimes against Mr. Ledbetter and his wife are real and

serious, and this Honorable Court cannot let them pass with a wink and a nod.
 3. RECALLING DISCOVERY

The first step that must be performed is that all discovery released in this case must be recalled.

The recipients must be ordered to also return any electronic or physical copies of discovery

produced. The McLennan County District Attorney must then be ordered to purge the discovery

of all intimate visual material unrelated to the litigation at hand, including any that they may have

retained. Whatever other relief is sought or granted, that purging of the intimate images must occur

immediately.

4. REMOVING THE DISTRICT ATTORNEYS OFFICE

This presents an unusual issue, in that it is thankfully extremely rare (if not unprecedented) for

a prosecutor to be in a position to prosecute the victims of their own criminal acts. In fact, even

cases dismissed for outrageous government conduct rarely involve actual crimes committed by the

State against the accused. However, herein we have a clear case of multiple crimes committed by

the State against not just Mr. Ledbetter but also his wife. This is truly beyond the pale, and is a

clear violation of due process and due course of law under the United States and Texas

Constitutions.

The Court of Criminal Appeals has held that Counsel may be disqualified under the

disciplinary rules when the opposing party can demonstrate actual prejudice resulting from

opposing counsel's service in the dual role of advocate-witness. Gonzalez v. State, 117 S.W.3d

831, 837 (Tex. Crim. App. 2003). The Gonzales Court further noted that [i]n determining whether

counsel should be disqualified because counsel is a potential witness, Texas courts use rule 3.08

of the Texas disciplinary rules of professional conduct as a guideline. Id.

A District Attorney may be disqualified if his continuing to serve on a particular case would

constitute a due-process violation. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim.
App. 1994). Due process violations are shown when the District Attorneys participation in the

case would constitute actual prejudice. In re State ex rel. Young, 236 S.W.3d 207, 212 n.23 (Tex.

Crim. App. 2007). See House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997) ("[I]f a

defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State,

then he will not be entitled to relief . . . .") Clearly, in this case, prejudice is plain: Mr. Reyna, and

numerous other prosecutors in his office, have victimized Mr. Ledbetter and his wife. They have

shown no respect for his rights, and cannot justly prosecute their own victim.

Due Process has been simplistically defined as that process which is due. The words due

process suggest a concern with procedure, and that is how the Due Process Clause is usually

understood. However, the clause has been taken as a kind of proxy for other, unenumerated rights,

such as equal protection of the law and the right to contract. See, e.g., Lochner v. New York, 198

U.S. 405 (1905). The question we are confronted with herein is whether due process and due course

of law are offended by allowing a prosecutor to prosecute an individual when there exists probable

cause that he himself has victimized that individual hundreds of times, in fact. The Due Course

of Law provision of Article I, Sec. 19 of the Texas Constitution echo the wording of the Due

Process Clauses of the Fifth and Fourteenth Amendment, and achieve the same ends. As to

procedural due process relationships between the Fourteenth Amendment and Article I, 19, see

City of Sherman v. Henry, 928 S.W.2d 464, 472-73 & n.5 (Tex. 1996) (citing Univ. of Tex. Med.

Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)), and Mellinger v. City of Houston, 3 S.W. 249,

252-53 (Tex. 1887).

While the text of the due process clause is extremely general, the fact that it appears twice (the

Fourteenth and Fifth Amendments) makes it clear that Due Process is a central Constitutional

proposition. It echoes this country's Seventeenth Century struggles for political and legal
regularity, and the American colonies' strong insistence during the pre-Revolutionary period on

observance of regular legal order. The requirement that government function in accordance with

law is, in itself, ample basis for understanding the stress given these words. A commitment to

legality is at the heart of all mature legal systems, and the Due Process Clause is often thought to

embody that commitment. The Texas Due Course of Law provision serves the same purposes, and

carries the same weight.

There can be no argument as to whether the State violated the Defendants rights by

disseminating these images. The Texas Penal Code answers that question resoundingly by making

the distribution of such images, without consent, a criminal act. And there can be no question that

the States wrongful actions deprived the Defendant of procedural due process, violating his rights

in this matter without any procedures in place to protect them whatsoever.

In determining what types of procedures the due process clauses guarantee, an analysis made

by the late Judge Henry Friendly in his well-regarded article, "Some Kind of Hearing," generated

a list that remains highly influential, as to both content and relative priority:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.

See Judge H. Friendly, Some Kind of Hearing, 123 U.Penn L.Rev. 1267 (1975). Again, these

are simply the kinds of procedures that might be claimed in a "due process" argument, roughly in

order of their perceived importance, and not a list of procedures that will in fact be required in

every case. The dramatic point, however, is their relevance to Mr. Ledbetters prosecution. He and
his wife were provided no process, whatsoever, before his intimate private images were distributed

by the State. It was intentional, knowing, and vicious, and was clearly and plainly calculated to

harm an innocent man and his innocent wife.

The due process clause has also been used to protect certain substantive due process rights.

Substantive due process is a principle allowing courts to protect certain rights deemed fundamental

from government interference, even where procedural protections are present or where those rights

are not specifically mentioned in the constitution.2 Courts have identified the basis for such

protection from the due process clauses of the Fifth and Fourteenth Amendments to the

Constitution, which prohibit the federal and state governments, respectively, from depriving any

person of "life, liberty, or property, without due process of law." The question in these cases is

whether due process of law might be violated by certain actions taken by legislators, judges, or

other officials.3 It is asserted, herein, that by releasing these intimate visual images straight from

the marital bedroom without any legal justification for doing so, the State violated a

constitutionally based and fundamental right to privacy, grounded in the Ninth Amendment and in

both Common and statutory law.

The Supreme Court usually looks first to see whether there is a fundamental right by examining

whether the right can be found deeply rooted in American history and traditions. Clearly, American

history and tradition protect the right of a married couple not to have what they do in the privacy

of their own bedroom made available for general view. This right to privacy is as fundamental as

2
It has been persuasively argued that the Ninth Amendment is a better vehicle for protection of
such rights. See Randy E. Barnett, The Ninth Amendment: It Means what it Says, 85 Tex. L. Rev. 1 (2006).
However, Ninth Amendment jurisprudence, nearly a quarter of a millennium since the founding, is still
sorely undeveloped.
3
See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965), Shapiro v. Thompson, 394 U.S. 618
(1969), and Roe v. Wade, 410 U.S. 113 (1973).
the right to marriage itself. Because this right is beyond cavil a fundamental one, the Courts are to

apply strict scrutiny in determining whether its violation is of constitutional dimension. Strict

scrutiny asks whether the governmental action was justified by a compelling state interest and

whether the state action is narrowly tailored to address the state interest. No such state interests

exist. In fact, the existence of a law criminalizing the action of releasing these images without

consent shows that there is a legitimate government purpose in protecting the rights of the

Ledbetters to their privacy in these images.

However, even if the right to privacy in the marital bedroom is not deemed to be a fundamental

right, the courts must then apply a rational basis test: if the violation of the right can be rationally

related to a legitimate government purpose, then the law or government action is held valid. No

government purpose whatsoever was served by the release of these images. They are not even

tangentially related to any issue involved in any of the Twin Peaks cases. The only interests any

litigant would have to viewing these images would be prurient and/or salacious. The only interests

the State could have had in releasing them would have been vindictiveness. Thus, there was no

rational basis for their release.

Any prosecutor willing to actively commit crimes against Mr. Ledbetter (and his wife) cannot

be trusted to comply with Morton, Brady, or the other requirements of Texas criminal procedure

in his case. It is unprecedented for a District Attorneys office to engage in what can only be

described as acts of revenge porn against Mr. Ledbetter and his wife, depriving them of due

process and due course of law in the process. Justice, and the appearance of justice, are destroyed

by such a prosecution. Any prosecutor who would willfully distribute numerous intimate images

belonging to the Defendant to hundreds of viewers with no legitimate law enforcement purpose is

in violation of numerous portions of the Texas Disciplinary Rules of Professional Conduct, and
the ABA Criminal Justice Standards for the Prosecution Function. Mr. Ledbetter has a due process

right to a prosecutor in this case who will not in turn criminally victimize him, and therefore, a

new prosecutor must be appointed.

Respectfully submitted,

By: __________________________
PAUL C. LOONEY
State Bar No. 12555900
CLAY S. CONRAD
State Bar No. 00795301
LOONEY & CONRAD, P.C.
11767 Katy Freeway, Suite 740
Houston, Texas 77079
Ph. No. (281) 597-8818
Fax No. (281) 597-8284
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the foregoing Defendants Renewed
Motion to Recall Discovery and to Disqualify the McLennan County District Attorneys Office
(sealed) was mailed, postage prepaid, or Hand Delivered to an Assistant District Attorney of
McLennan County, Texas, on October ___, 2017.

Clay S. Conrad
 CAUSE NO. 2015-2222-C1

THE STATE OF TEXAS IN THE 19th DISTRICT

V. COURT OF

CODY LEDBETTER MCLENNAN COUNTY, TEXAS

ORDER SETTING HEARING

ON DEFENDANTS RENEWED
MOTION TO RECALL DISCOVERY
AND TO
DISQUALIFY THE MCLENNAN COUNTY DISTRICT ATTORNEYS OFFICE

The Defendants Motion to Recall Discovery and to Disqualify the McLennan

County District Attorneys Office shall be heard before the 19th District Court, McLennan County,

Texas on ______________________, 2017 at ____ A.M.

______________________________________
Judge Presiding