parties dispute presumption in Texas

2015We will assume without deciding that it does because Hill did not provide any direct proof of vindictiveness or sufficient circumstantial proof to warrant a presumption of vindictiveness. ″There is no presumption of vindictiveness if in the context of the entire proceedings ’any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision . . . was motivated by some purpose other than a vindictive desire to deter or punish . . . .’″ Saltzman, 537 F.3d at 360 (quoting United States v. Wells, 262 F.3d 455, 466-67 (5

2015We will assume without deciding that it does because Hill did not provide any direct proof of vindictiveness or sufficient circumstantial proof to warrant a presumption of vindictiveness. ″There is no presumption of vindictiveness if in the context of the entire proceedings ’any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision . . . was motivated by some purpose other than a vindictive desire to deter or punish . . . .’″ Saltzman, 537 F.3d at 360 (quoting United States v. Wells, 262 F.3d 455, 466-67 (5

2014Meyer, 810 F.2d at 1245 ; see also Neal, 150 S.W.3d at 173 ; United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before trial, the defendant “must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self- vindication.”). 11 11 The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn between pretrial

2014Meyer, 810 F.2d at 1245 ; see also Neal, 150 S.W.3d at 173 ; United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before trial, the defendant “must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self- vindication.”). 11 11 The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn between pretrial

2014Meyer, 810 F.2d at 1245 ; see also Neal, 150 S.W.3d at 173 ; United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before trial, the defendant “must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self- vindication.”). 11 11 The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn between pretrial

2014Meyer, 810 F.2d at 1245 ; see also Neal, 150 S.W.3d at 173 ; United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (To create doubt regarding prosecutorial motivations before trial, the defendant “must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self- vindication.”). 11 11 The parties dispute whether the presumption of vindictiveness applies at this stage in the case; they argue there is a distinction drawn between pretrial

2026See id. at 678 n.35; Schneider, 147 S.W.3d at 283.

2025“An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state.” Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim.

2021Facebook points to recent Supreme Court cases holding that if a “statute ‘contains an express pre-emption clause’” (as the CDA does), courts “do not invoke any presumption against pre-emption but instead ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre- emptive intent.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) (quoting Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 594 (2011)).

2021Facebook points to recent Supreme Court cases holding that if a “statute ‘contains an express pre-emption clause’” (as the CDA does), courts “do not invoke any presumption against pre-emption but instead ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre- emptive intent.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) (quoting Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 594 (2011)).

2020In restricted appeals, “[t]here are no presumptions in favor of valid issuance, service, and return of citation.” Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam).

2016Compare Priddy v. Rawson, 282 S.W.3d 588, 594 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that director immunity under different but similar section of business organizations code was not affirmative defense, based on statutory language requiring person “seeking to establish liability of a director to prove . . .” (emphasis added)), with Pardue, 186 S.W.3d at 8 (noting that charitable immunity is generally affirmative defense).

2016See Doctor v. Pardue, 186 S.W.3d 4, 8 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (noting that charitable immunity has been treated as affirmative defense that must be pleaded and proved by parties seeking its application); see also Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex. 1992) (stating that governmental immunity and charitable immunity can be waived by failure to assert them as affirmative defenses).

2016Compare Priddy v. Rawson, 282 S.W.3d 588, 594 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that director immunity under different but similar section of business organizations code was not affirmative defense, based on statutory language requiring person “seeking to establish liability of a director to prove . . .” (emphasis added)), with Pardue, 186 S.W.3d at 8 (noting that charitable immunity is generally affirmative defense).

2016See Doctor v. Pardue, 186 S.W.3d 4, 8 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (noting that charitable immunity has been treated as affirmative defense that must be pleaded and proved by parties seeking its application); see also Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex. 1992) (stating that governmental immunity and charitable immunity can be waived by failure to assert them as affirmative defenses).