WR-83,286-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/9/2015 5:03:42 PM
Accepted 6/10/2015 8:24:46 AM
ABEL ACOSTA
Nos. WR-83,286-01 & WR-83,286-02 CLERK
§ IN THE RECEIVED
COURT OF CRIMINAL APPEALS
IN RE 6/10/2015
§ ABEL ACOSTA,
COURT OF CRIMINAL APPEALS CLERK
BRANDON JAY CARTER
§ STATE OF TEXAS
STATE’S RESPONSE
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
NOW COMES the State of Texas, by and through its District Attorney, 268th
Judicial District, Fort Bend County, and responds to Relator’s request that this Court
issue writs of mandamus and prohibition to cause the district court to vacate its order
substituting appointed counsel.
I.
Procedural Background
On August 20, 2012, a grand jury indicted Relator, Brandon Jay Carter, for the
offense of burglary of a habitation with intent to commit a sexual assault, a first
degree felony, alleged to have been committed on or about September 26, 2011.
On February 17, 2015, a jury trial commenced with the selection of a petit jury,
which was selected and sworn on February 18, 2015. Assigned Judge Lee Duggan,
Jr. presided at the jury trial.
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On February 24, 2015, Relator’s appointed attorney, David Christopher Hesse,
argued with the trial court’s rulings, interrupted the trial court when it spoke, and
pursued questioning on certain matters after being instructed not to do so. [Exhibit
A, being a copy of the judgment of contempt and commitment order, at 1] The trial
court advised Mr. Hesse “outside the presence of the jury, that his conduct was
contemptuous, that he would not be held in contempt for what had occurred thus far,
that he should proceed with care and would be held in contempt if he persisted in
such behavior.” [Ex A at 1]
On February 25, 2015, Mr. Hesse “persisted in disrupting the proceedings of
the Court during his cross-examination of the State’s witness, Detective Tommy
Thompson, by arguing with the Court’s rulings, (2) continued to pursue questioning
on matters he was instructed not to pursue, and (3) interrupted the Court when the
Court spoke.” [Ex A at 1-2] The jury began deliberations the same day.
On February 26, 2015, the jury reported that their differences were
irreconcilable. The trial court gave an Allen charge, but the jury was still unable to
reach a verdict. Relator’s motion for a mistrial was granted and the jury was
discharged. The trial court then entered a Judgment of Contempt and Commitment
Order and released Relator’s defense counsel, David Christopher Hesse on a personal
recognizance bond. [Exhibit B, being a copy of the trial court’s docket sheet]
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On March 2, 2015, Hon. Thomas Culver, Presiding Judge, 240th District Court,
made a docket entry, “Atty. Hesse is removed from this case. Harris Wood is
appointed to replace Hesse. Ms. Levy to notify Mr. Wood of reset to 4-6-2015 @
1:30 p.m.” [Ex B] On March 2, 2015, Hon. James Shoemake, Presiding
Administrative Judge entered an order appointing Harris S. Wood, Jr. to defend
Relator, and Ms. Levy duly notified Mr. Wood of his appointment. [Exhibit C, being
a copy of the appointment packet]
On March 6, 2015, Relator filed petitions for writs of mandamus and
prohibition in the First Court of Appeals, which were summarily denied on May 7,
2015. In re Brandon Jay Carter, Nos. 01-15-00216-CR & 01-15-00217-CR (Tex.
App.--Houston [1st Dist.] May 7, 2015) (orig. proceedings, not designated for
publication).
On March 9, 2015, a Notice of Allegations of Contempt and Order Setting
Show Cause Hearing for March 23, 2015 was filed and personally served on Mr.
Hesse. [Exhibit D, being a copy of the notice without attachments] The show cause
hearing was reset to April 15, 2015.
On March 12, 2015, the trial court entered its Amended Order Substituting
Counsel in The State of Texas vs. Brandon Jay Carter, Cause No. 12-DCR-061186.
[Exhibit E, being a copy of the Amended Order] The Order recites Mr. Hesse’s
3
requests during Relator’s jury trial to be removed as counsel if he were to be held in
contempt. [Ex E at 2] When the trial court removed Mr. Hesse from Relator’s case,
Mr. Hesse been held in contempt and a show cause hearing before a different judge
was pending. [Exs A and D]
On April 15, 2015, the trial court convened the show cause hearing on Mr.
Hesse’s contempt during Relator’s jury trial. Mr. Hesse requested that his amended
special plea of double jeopardy be heard first. After the trial court denied relief, Mr.
Hesse asked the court to stay the proceedings to enable his appeal of the court’s
ruling. Mr. Hesse filed his notice of appeal on April 16, 2016, and filed his brief on
June 8, 2015. In re David Christopher Hesse, No. 01-15-00401-CR.
On May 15, 2015, Relator filed the instant applications for writ of mandamus
and writ of prohibition in this Court. On June 1, 2015, after receiving Relator’s
emergency motion for stay, this Court ordered the Judge of the 240th District Court
to file a response with this Court, and permitted the Fort Bend County District
Attorney’s Office to also submit a response.
II.
The State is not a real party in interest
The crux of Relator’s applications for writs of mandamus and prohibition is to
reinstate David Christopher Hesse as Relator’s appointed attorney. Although Relator
4
names District Attorney, John F. Healey, Jr., as a real party in interest, the State of
Texas has no interest in which competent attorney represents Relator. More
importantly, the State believes that it may be an ethical violation for its attorneys to
express an opinion in this matter and as a result, in all likelihood, interfere with the
attorney-client relationship.
Respectfully submitted,
John F. Healey, Jr.
SBOT # 09328300
District Attorney, 268th Judicial District
Fort Bend County, Texas
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
SBOT # 11395400
Assistant District Attorney
301 Jackson Street, Room 101
Richmond, Texas 77469
(281) 238-3205/(281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing State's response was served on
June 9, 2015, the electronic filing manager or by email on the following persons:
David Christopher Hesse, Attorney for Relator
Hesse@HoustonCriminalJustice.com
Harris S. Wood, Jr., Appointed Attorney for Relator in Cause No. 12-DCR-061186
hwoodatty@yahoo.com
Hon. Thomas R. Culver, III, Presiding Judge, 240th District Court
c/o Becky.Fisher@fortbendcountytx.gov
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
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Nos. WR-83,286-01 & WR-83,286-02
§ IN THE
IN RE
§ COURT OF CRIMINAL APPEALS
BRANDON JAY CARTER
§ STATE OF TEXAS
EXHIBITS
Exhibit A: Copy of the Judgment of Contempt and Commitment Order
Exhibit B: Copy of the trial court’s docket sheet
Exhibit C: Copy of the appointment packet
Exhibit D: Copy of the Notice of Allegations of Contempt and Order Setting Show
Cause Hearing
Exhibit E: Copy of the Amended Order Substituting Counsel
Exhibit A
Exhibit B
Exhibit C
Exhibit D
6th
Exhibit E
12-DCR-061186
ORDER
Order
3471820
No. 12-DCR-061186
THE STATE OF TEXAS § IN THE 240TH JUDICIAL
vs § DISTRICT COURT OF
BRANDON JAY CARTER § FORT BEND COUNTY, TEXAS
AMENDED ORDER TO SUBSTITUTE APPOINTED COUNSEL
On March 2, 2015, the Presiding Administrative Judge, James H. Shoemake,
upon the request of Thomas R. Culver, III, the elected judge of the 240th District
Court, entered an Order appointing Harris S. Wood, Jr. to defend Defendant,
Brandon Jay Carter. In accordance with this Court's docket entry, the Court
Administration Coordinator issued a notice substituting Mr. Wood for appointed
attorney Chris Hesse. This amended order is now entered to memorialize good
cause for the substitution of counsel.
Mr. Hesse represented Defendant in ajury trial, commencing February 17,
2015, with the selection of a petit jury, which was empaneled and sworn on
February 18, 2015. The jury could not come to a unanimous decision, and
Defendant's motion for a mistrial was granted on February 26, 2015. After the
jury was released from service, Mr. Hesse was found in contempt of court by the
Hon. Lee Duggan, Jr., sitting by assignment. Mr. Hesse sentenced to a$500 fine,
and released on a personal recognizance bond. Attached hereto, without
attachments, is a copy of the Notice of Allegations of Contempt and Order Setting
Show Cause Hearing set for March 23, 2015. [Exhibit 1]
In addition to the allegations of contempt, the reporter's record reflects
several exchanges between Mr. Hesse and the trial court wherein Mr. Hesse
expressed his concern about being held in contempt and "asked to be removed
from this case because my interests are adverse to my client's at this very
moment." [Exhibit 2, RR-Feb. 24, 2015 at 5] And again, "I ask that I be
withdrawn as attorney of record...." [Exhibit 3, RR-Feb 25, 2015 at 57]
Because Mr. Hesse is subject to a show cause hearing for contempt and had
asked to be removed from this case because he might be held in contempt, this
Court hereby finds good cause to remove David Christopher Hesse as the
appointed attorney in this cuase and to substitute Harris S. Wood, Jr. to defend
Brandon Jay Carter.
In addition, on March 3, 2015, the Indigent Defense Coordinator has notified
the Court that Mr. Hesse asked to be removed from all appointment lists because
he is moving to Amarillo in May 2015. [Exhibit 4, being the affidavit of Raquel
Levy]
Signed on March 12, 2015.
Thomas R. Culver, III
p/K Presiding Judge, 240th District Court
MAR Um2015 P
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