ACCEPTED
01-15-00216-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/10/2015 4:08:16 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00216-CR
No. 01-15-00217-CR
FILED IN
1st COURT OF APPEALS
§ IN THE COURT OF APPEALS
HOUSTON, TEXAS
IN RE 3/10/2015 4:08:16 PM
§ FIRST JUDICIAL DISTRICT
CHRISTOPHER A. PRINE
Clerk
BRANDON JAY CARTER
§ HOUSTON, TEXAS
STATE’S RESPONSE
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
NOW COMES the State of Texas, by and through its District Attorney, 268th
Judicial District, Fort Bend County, and responds to this Court’s request for a
response from the real party in interest in the above referenced cases.
I.
Procedural Background
On August 30, 2012, a Fort Bend County 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. [Exhibit A, being a copy of the indictment]
On February 17, 2015, a jury trial commenced with the selection of a petit jury,
which was selected and sworn on February 18, 2015. The State rested and closed on
February 25, 2015, and the jury began its deliberations. February 26, 2015, the jury
reported that their differences were irreconcilable. The Court sent an Allen charge
to the jury, but the jury was still unable to reach a verdict. Relator’s motion for a
1
mistrial was granted and the jury 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]
On March 2, 2015, Hon. James Shoemake, Presiding Administrative Judge
entered an order appointing Harris S. Wood, Jr. to defend Relator. [Exhibit C, being
a copy of the order packet]
On March 6, 2015, this Court requested a response from the real party in
interest. The Court’s website reflects that the State of Texas is a real party in interest.
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 March
10, 2015 on Mr. Hesse. [Exhibit D, being a copy of the notice without attachments]
II.
The State is not a real party in interest
The crux of Relator’s petition for writs of mandamus and prohibition is to
reinstate David Christopher Hesse as Relator’s appointed attorney. Although Relator
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.1 More
1
The State’s only interest is that appointed counsel render effective
assistance.
2
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
3
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing State's response was served on
March 10, 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
4
Exhibit A
4 THE STATE OF TEXAS Amanda Bolin
30.02 (d)
22990007
VS
BRANDON JAY CARTER
D.O.B.: 04/25/1991 DA CONTROL NO: 12-006209
FELONY CHARGE: BURGLARY HABITATION INTEND ARREST DATE: Not arrested on this charge
SEX OFFENSE/ Fl _____
CAUSE NO: \i~Kd-ckm OFFENSE DATE: September 26, 2011
DISTRICT COURT NO AGENCY/AGENCY NO: FORT BEND COUNTY SHERIFF'S
; mi OFFICE/ 110025389
BAIL AMOUNT: * fyb ,c0 PRIOR CAUSE NO:
RELATED: CO-DEF:
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
The duly organized Grand Jury of Fort Bend County, Texas, presents in the
District Court of Fort Bend County, Texas, that in Fort Bend County,
Texas, BRANDON JAY CARTER, hereafter styled the Defendant, heretofore on
or about September 26, 2011, did then and there intentionally or knowingly
enter a habitation, without the effective consent of Larissa Treybig, the
owner thereof, and attempted to commit or committed the felony offense of
sexual assault;
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AGAINST THE PEACE AND DIGNITY OF THE STATE. U- «X
12-DCR-061186
INOI
Indictment
2039636
FOREMAN OF THE GRAND JURY
)ICTMENT (ORIGINAL/DA)
Exhibit B
CRIMINAL DOCKET
CAUSE NO: 12-DCR-061186
COURT NO. CASE TYPE FILED
STYLE OF CASE ATTORNEYS
240th Judicial Adult Felony - Filed by Indictment
DISTRICT ATTORNEY
District Court THE STATE OF TEXAS
VS STATE
DATE OF FILING OFFENSE
BRANDON JAY CARTER DEFENDANT BURGLARY HABITATION INTEND SEXOFFENSE (F1)
ORDERS OF COURT
BAIL SET AT^50,000
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_ _ _ _
CAUSE NO:
THE STATE OF TEXAS vs
DATE OF ORDERS
MONTH DAY YEAR ORDERS OF COURT
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Exhibit C
ORDER APPOINTING COUNSEL
Cause No. 12-DCR-061186
The State of Texas
Vs.
BRANDON JAY CARTER
Upon determination by the Court that this Defendant is indigent, HARRIS S.
WOOD, JR is hereby appointed to defend BRANDON JAY CARTER.
March 02, 2015
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Presiding Jucflge
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BRANDON JAY CARTER
802 Vestabend
Houston, Tx 77073
Home: 281-232-6744
ORDER AND NOTICE OF COURT APPOINTED ATTORNEY
Cause No. 12-DCR-061186
The State of Texas Vs. BRANDON JAY CARTER
You are hereby notified that HARRIS S. WOOD, JR, whose address and
telephone number appear below, is hereby appointed as your attorney. Such
representation will continue until this case is disposed, and appeals are
exhausted, or replaced by an attorney whom you choose to retain.
Your FIRST COURT DATE is as follows: April 06, 2015 at 1:30 PM at the
240th District Court.
IMPORTANT: If the Bail Bond you received at the jail gives you a different court
date than the one listed above for the bond cases, you MUST appear on the
earliest date to prevent your bond from being forfeited. It is your responsibility to
be present at all of your court dates.
You should arrive at the Court Room at least thirty (30) minutes prior to your
arraignment time to allow for parking and to meet your attorney. If you are late or
do not appear, a warrant will be issued for your arrest and your bond will be
forfeited.
-&-
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Presidi/ii Wftistr;&tive Judge
HARRIS S. WOOD, JR
2190 NORTH LOO'P WEST
STE 308
HOUSTON, TX 77018
281-924-5876
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ffict Court, rOft 3en^0*.,TX
12-DCR-061186
ORDER
Order
3454475
ORDER TO SUBSTITUTE COUNSEL
STATE OF TEXAS
VS
BRANDON JAY CARTER
Cause No. 12-DCR-061186
Upon determination by the Court that this defendant is indigent,
ATTORNEY HARRIS S. WOOD, JR. is hereby appointed to substitute
ATTORNEY CHRIS HESSE to defend BRANDON JAY CARTER.
Date: March 02, 2015
COURf ADMINISTRATION
COORDINATOR
-*&*
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Exhibit D
No. 12-DCR-061186
STATE OF TEXAS § IN THE 240TH JUDICIAL
VS. § DISTRICT COURT OF
BRANDON JAY CARTER, § FORT BEND COUNTY, TEXAS
Defendant
IN RE: DAVID CHRISTOPHER HESSE
NOTICE OF ALLEGATIONS OF CONTEMPT AND
ORDER SETTING SHOW CAUSE HEARING
Notice is hereby given to Respondent, David Christopher Hesse, that certain
conduct by you, more fully set forth hereinbelow, is considered by this Court to be
prima facie evidence of contempt of court. Attached hereto as Exhibit A, and
incorporated herein, is a copy of the Reporter's Record of the Court's Judgment of
Contempt and Commitment Order. Attached hereto as Exhibit B, and incorporated
herein, is a copy of the Reporter's Record of the Testimony of Detective
Thompson. Attached hereto as Exhibit C, and incorporated herein, is a copy of
the audio recording of the trial proceedings on February 24-26, 2015.
1. Factual Allegations
1.01 Respondent is the attorney of record for the Defendant in the above-entitled
and numbered cause.
FILED
'
12-DCR-061186
NOTF
Notice
3462745
CLERK St|TRtCT COURT v>
F0RTB8H0C0-TX
1.02 A jury trial commenced on February 17, 2015, with the selection of a petit
jury on February 18, 2015, which was sworn that day.
1.03 On February 18, 2015, the indictment was read, and the Defendant pleaded,
"Not Guilty." The State and Respondent for the defense presented opening
statements, after which the State's evidence began.
1.04 On February 24, 2015, defense witness Lloyd Malpess testified by
agreement of the parties out of order, before the State rested its case.
1.04 On February 24, 2015, Respondent argued with the Court's rulings.
1.05 On February 24, 2015, Respondent interrupted the Court as the Court spoke.
1.06 On February 24, 2015, Respondent pursued questioning on certain matters
after being instructed not to do so.
1.07 On February 24, 2015, The Court advised Respondent 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, and that he should proceed with
care and would be held in contempt if he persisted in such behavior.
1.08 On February 25, 2015, despite the Court's warnings the day before,
Respondent again persisted in disrupting the proceedings of the Court during
his cross-examination of the State's witness, Detective Tommy Thompson.
1.081 Respondent argued with the Court's rulings, including "I want to
know more about this DeMarcus Hawthorne" [Ex A at 54]; "I have a
right to confront, sir" [Ex A at 56]; "I object to being denied--" [Ex A
at 80-81]; "I can put my objection, now, sir. My objection-" [Ex A at
81]; "My objection is I~" [Ex A at 81]; "My client is being denied—
my client is being denied-" [Ex A at 81]; "And I want to put it on the
record, sir. I want to put it on the record--" [Ex A at 81]; "I object
that my client is being denied his right to confront--" [Ex A at 81];
"Every time you talk over me, sir, I'm not getting on the record. I
object-" [Ex A at 82]; "I'd like to make an offer of proof now, sir"
[Ex A at 82]
1.082 Respondent refused to give an estimate of how long Respondent
intended to cross-examine the witness, "As long as I see fit, sir," "I
don't know," "I'll determine that," "You can deal with that when it
comes sir," and when the Court asked for Respondent's best estimate,
Respondent twice answered, "No, sir." [Ex A at 58-62]
1.082 Respondent four times continued to pursue questioning about bad
acts or convictions of DeMarcus Cortez Hawthorne after the State's
object to relevance was sustained, and the Court had instructed
counsel to move on to another topic. [Ex A at 43-45, 80]
1.083 Respondent twice continuedto pursue questioning about latent
prints after the State's objection was sustained, and the Court had
instructed Respondent to move on to new material. [Ex A at 55-56]
1.084 Respondent interrupted the Court when the Court spoke:
The Court: You have the usual pathway of objections—
Respondent: And I want to put it on the record, sir. I want to put it on
the record—
The Court: And do not talk over the Judge.
[Ex A at 81]
1.09 On February 25, 2015, the State rested after Det. Thompson's testimony, the
defense rested, and the evidence was closed. The Court's charge was read,
closing arguments were made, and the jury was retired to deliberate on guilt-
innocence. The jury was allowed to separate at about 6:50 p.m. on the
agreement of the parties.
1.10 On February 26, 2015, the jury resumed deliberating, but sent out a written
note stating "our differences are irreconcilable." The Court prepared an
Allen charge that was approved by the parties and which was sent to the
jury. However, at about noon, the jury was returned to the courtroom,
Defendant's motion for mistrial was granted, and the jury was discharged.
1.11 On February 26, 2015, after the jury had been discharged, the Court entered
a Judgment of Contempt and Commitment Order after finding Respondent
in contempt and authorized Respondent to make a personal appearance bond
as an officer of the Court.
2. Allegations of Contempt
2.01 The conduct of the Respondent, as described hereinabove, is contumacious
for the reason that it significantly disrupts the orderly proceedings of the
court and the proper and effective administration of justice by causing
unnecessary delay and the waste ofjudicial resources.
3. Legal Principles
3.01 In determining whether or not the Respondent is in contempt, this Court is
cognizant of and guided by the principle that the essence of contempt is not
an offense against a particular judge's personal sensibilities, but is instead an
affront to the authority, justice or dignity of the court, which conduct
obstructs the proper and effective administration ofjustice. Brown v. United
States, 386 U.S. 148(1958).
3.02 Contempt has been defined as an act which is reasonably calculated to
impede, embarrass, or obstruct the court in the lawful discharge of its duties.
Ex parte Soape, 347 S.W.2d 621 (Tex. 1961).
4. Range ofPunishment
4.01 The range of punishment for contempt is a fine of not more than $500.00, or
confinement in the county jail for a period of not more than six months, or
by both a fine and a period of confinement.
5. Assigned Judge
5.01 Pursuant to Section 21.002(d) of the Government Code, the Honorable Olen
Underwood, presiding judge of this administrative region, has appointed the
Honorable Michael Seiler, to determine the guilt or innocence of the
Respondent.
Signed March 6, 2015.
Hon. Lee Duggan^
Judge Presiding by Assignment
240th District Court
Fort Bend County, Texas
SHOW CA USE ORDER
IT IS HEREBY ORDERED that the Respondent, David Christopher Hesse,
appear before this Court at 10:00 a.m. on March 23, 2015, to show cause why he
should notbe held in contempt ofcourt and punished accordingly.
NOTICE OF SHOW CAUSE ORDER
IT IS FURTHER ORDERED that the Clerk of this Court shall cause a
NOTICE OF SHOW CAUSE ORDER to be served on Respondent in person on
March 9, 2015, upon his appearance at 10:30 a.m. in this Court as Respondent
swore he would when released on a personal recognizance bail bond. A copy of
this notice and order shall also be provided to the Honorable Olen Underwood,
Administrative Judge; the Honorable Michael Seiler, Presiding Judge by
assignment; and the Honorable Thomas Culver, Presiding Judge of the 240th
District Court.
Signed March 6th0,^j\
;haei Seller
Judge Presiding by Assignment
240th District Court
Fort Bend County, Texas