WR-83,286-01,02
WR-83,286-0
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/14/2015 5:36:06 PM
Accepted 5/15/2015 10:47:17 AM
ABEL ACOSTA
DOCKET NO. __________ CLERK
IN THE RECEIVED
COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
5/15/2015
AT AUSTIN, TEXAS ABEL ACOSTA, CLERK
IN RE:
BRANDON JAY CARTER,
Relator
PETITION FOR WRIT OF MANDAMUS AND
FOR WRIT OF PROHIBITION
Trial Cause No. 12-DCR-061186
th
In the 240 Judicial District Court of Fort Bend County, Texas
Honorable Thomas R. Culver III, Presiding
D. Chris Hesse # 24049081
112 West 8th Avenue, Suite 301
Amarillo, Texas 79101
Tel: (806) 350-6785
Fax: (806) 350-6786
Chris@PanhandleCriminalDefense.Attorney
Attorney for Relator,
Brandon Jay Carter
Michael Mowla #24048680 L.T. “Butch” Bradt #02841600
445 E. FM 1382 #3-718 14015 Southwest Freeway, Suite 4
Cedar Hill, Texas 75104 Sugar Land, Texas 77478-3500
(972) 795-2401 (281) 201-0700
Fax: (972) 692-6636 Fax: (281) 201-1202
michael@mowlalaw.com ltbradt@flash.net
Of counsel to Relator Of counsel to Relator
IDENTITIES OF PARTIES AND COUNSEL
Relator: Brandon Jay Carter
Counsel for Relator:
David Christopher Hesse # 24049081
112 West 8TH Avenue, Suite 301
Amarillo, Texas 79101
Tel: (806) 350-6785
Fax: (806) 350-6786
Chris@PanhandleCriminalDefense.Attorney
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Michael Mowla #24048680
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
(972) 795-2401
Fax: (972) 692-6636
michael@mowlalaw.com
Respondent:
Honorable Thomas R. Culver, III
240TH Judicial District Court
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3E
Richmond, Texas 77469
(281) 341-8600
Becky.Fisher@fortbendcountytx.gov
i
Real Parties In Interest:
State of Texas
Counsel for the State of Texas:
Honorable John F. Healey, Jr., District Attorney
Gail Kikawa McConnell, Ass’t District Attorney
301 Jackson Street, Room 101
Richmond, TX 77469
(281) 238-3205
Fax: (281) 238-3340
Gail.McConnell@fortbendcountytx.gov
Harris S. Wood, Jr. #21894400
701 North Post Oak Road #425
Houston, Texas 77024
(281) 924-5876
Fax: (281) 579-1586
hwoodatty@yahoo.com
ii
TABLE OF CONTENTS
Page
IDENTITIES OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
QUESTION NO. ONE: Does the power of the trial court to appoint
counsel to represent indigent defendants carry with it the
concomitant power to remove counsel at the judge’s discretionary
whim, without a request from the defendant and without a
hearing? If not, will mandamus issue to cause Respondent to set
aside his order appointing Harris S. Wood, Jr. to represent Relator?
..................................................... 2
QUESTION NO. TWO: When a defendant is seeking mandamus relief to set
aside an order appointing new counsel, will a writ of prohibition issue
to stay proceedings in the trial court to thereby prevent interference
with the jurisdiction of the Court of Appeals?.. . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT AND AUTHORITY .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
QUESTION NO. ONE RESTATED: The power of the trial court to appoint
counsel to represent indigent defendants does not carry with it the
concomitant power to remove counsel at the judge’s discretionary whim
iii
and without a hearing. Mandamus should issue to cause the order
removing counsel to be vacated... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Entitlement to Writ of Mandamus:. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
QUESTION NO. TWO RESTATED: A Writ of Prohibition should issue to
prohibit Respondent from holding any hearings on the case until such
time as the application for writ of mandamus shall have been
determined... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Entitlement to Writ of Prohibition:. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
APPENDICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iv
TABLE OF AUTHORITIES
Page
Federal Cases
Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . . 8
State Cases
Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . 9
De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)
............................................................... 9
Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). . . . . . . . . . . . . . 6
Gaia Environmental, Inc. v. Galbraith, 451 S.W.3d 398 (Tex. App. –
Houston [14TH Dist.] 2014, review denied)... . . . . . . . . . . . . . . . . . . . . . . . . . 6
Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . 9
Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941 (Tex. App. – Dallas 1982,
orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
In re Kuntz, 124 S.W.3d 179 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984). . . . . . . . . . . . . . . . . . . 9
Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App.2003) (orig.
proceeding) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
v
Simon v. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989)... . . . . . . 7-9
Walker v. Packer, 827 S.W.2d 833 (Tex.1992). . . . . . . . . . . . . . . . . . . 8, 9
West v. Solito, 563 S.W.2d 240 (Tex. 1978). . . . . . . . . . . . . . . . . . . . . . . . 9
State Statutes
Art. 1, § 10, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
Article V, § 1, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Constitution
Amendment V, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
Amendment VI, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
Amendment XIV, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 8
vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Relator, Brandon Jay Carter, shows:
STATEMENT OF THE CASE
The underlying suit (Cause No. 12-DCR-061186 in the 240TH Judicial
District Court) is an indictment alleging burglary of a habitation with intention
to commit a sexual assault. On December 10, 2012, David Christopher Hesse
was appointed to represent Relator. Relator pleaded “not guilty,” and the first
trial of the case resulted in a hung jury. This hung jury caused a mistrial to be
declared by the trial court on February 26, 2015. Although Relator had not
expressed any dissatisfaction with or even any desire to have Hesse removed,
on March 2, 2015, Respondent sua sponte signed an order that removed
Hesse and appointed Harris S. Wood, Jr. to represent Relator. After the
Relator filed his Petition for Writ of Mandamus in the First Court of Appeals,
the Respondent signed an Amended Order removing David Christopher Hesse
and appointing Harris Wood, Jr..
The case is now set on the court’s docket for June 1, 2015 at 1:30 p.m..
STATEMENT OF JURISDICTION
This Petition is brought pursuant to, and this Court has jurisdiction of
this Petition pursuant to Article V, § 1, Texas Constitution.
1
This Petition is also brought under the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution. And this Petition is brought
under Art. 1, § 10, Texas Constitution.
QUESTIONS PRESENTED
QUESTION NO. ONE: Does the power of the trial court to appoint counsel
to represent indigent defendants carry with it the concomitant power to
remove counsel at the judge’s discretionary whim, without a request from the
defendant and without a hearing? If not, will mandamus issue to cause
Respondent to set aside his order appointing Harris S. Wood, Jr. to represent
Relator?
QUESTION NO. TWO: When a defendant is seeking mandamus relief to set
aside an order appointing new counsel, will a writ of prohibition issue to stay
proceedings in the trial court to thereby prevent interference with the
jurisdiction of the Court of Appeals?
STATEMENT OF FACTS
Relator was indicted for burglary of a habitation with intention to
commit sexual assault. A true and correct copy of that indictment is attached
hereto, marked Appendix 1, and incorporated by reference for all purposes.
Relator denies the allegations of that indictment. Relator denies the
2
allegations of that indictment.
On December 10, 2012, David Christopher Hesse was appointed to
represent Relator in Cause No. 12-DCR-061186 in the 240TH Judicial District
Court. A true and correct copy of that order is attached hereto, marked
Appendix 2, and incorporated by reference for all purposes.
Trial of this case was held from February 16, 2015 to February 26, 2015.
On February 26, 2015, because of a hung jury, a mistrial was declared. A true
and correct copy of the docket sheet is attached marked Appendix 3, and
incorporated by reference for all purposes.
On March 2, 2015, Respondent removed David Christopher Hesse as
Relator’s attorney and appointed Harris S. Wood, Jr. to represent him. A true
and correct copy of that order is attached and marked Appendix 4, and
incorporated by reference for all purposes. No hearing was held before
Respondent signed the order removing David Christopher Hesse as counsel
for Relator.
Relator has not requested new counsel and, indeed, wishes for David
Christopher Hesse to continue to represent him. See Relator’s Declaration
which is attached and incorporated herein as Appendix 5.
David Christopher Hesse did not find out about the order removing him
3
until he received a call from Harris S. Wood, Jr. on March 4, 2015. See
Declaration of David Christopher Hesse attached hereto and incorporated
herein as Appendix 8.
On March 13, 2015, Respondent signed an Amended Order removing
David Christopher Hesse as Relator’s attorney and appointing Harris S. Wood,
Jr. to represent him. A true and correct copy of that order is attached and
marked Appendix 6, and incorporated by reference for all purposes. No
hearing was held before Respondent signed the amended order removing
David Christopher Hesse as counsel for Relator.
Relator sought mandamus relief from the First Court of Appeals, which
denied relief. See Appendix 7, attached hereto and incorporated herein. The
instant application results.
SUMMARY OF THE ARGUMENT
A trial judge acts without reference to guiding authority and violates the
defendant’s Due Process rights when, without a request from the defendant
and without a hearing, the judge removes appointed counsel from
representing an indigent defendant and appoints new counsel. Mandamus
will issue to require the trial judge to set aside that order. Mandamus relief is
available to address this abuse of discretion as Relator has no adequate
4
remedy by appeal and is entitled to mandamus relief.
A writ of prohibition should issue to prohibit Respondent from taking
any further action on the underlying case until this appellate proceeding is
concluded.
ARGUMENT AND AUTHORITY
QUESTION NO. ONE RESTATED: The power of the trial court to appoint
counsel to represent indigent defendants does not carry with it the
concomitant power to remove counsel at the judge’s discretionary whim
and without a hearing. Mandamus should issue to cause the order
removing counsel to be vacated.
Relator’s right to counsel implicates his rights under the under the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution. It also
implicates his rights under Art. 1, § 10, Texas Constitution.
Relator’s right to be heard before his appointed counsel is removed also
implicates his Due Process rights under the Fourteenth Amendment of the
United States Constitution.
As shown by his Declaration, Relator is not dissatisfied with his attorney
and has not requested new counsel to be appointed. As no request for new
counsel was made and since no hearing was held, it is clear that Respondent
issued the orders sua sponte.
The “reasons” that Respondent recites in the Amended Order (Appendix
5
6) do not afford grounds for removing appointed counsel without a hearing.
The amended order appears to be an “after-the-fact” attempt to justify the
unjustifiable.
The recitation in the amended order of Hesse’s request to be removed
from the case relates to what transpired during trial in front of the Honorable
Lee Duggan, Jr. and was necessitated by his failure to follow the procedure
that this Court established as relates to an attorney’s contempt.1
In Pink, this Court established the procedure to be used when an
attorney is to be held in contempt in a trial.2 When a trial judge does not follow
the procedure set forth in Pink and threatens to hold an attorney in contempt
during trial, that creates a conflict of interest for the attorney. This conflict is
between the attorney’s duty to zealously and aggressively represent his client3
and being able to afford only “tentative representation, not the zealous
representation that our profession rightly regards as an ideal and that the
public has a right to expect”4 because of the threat of being held in contempt.
1
Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). …
2
Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). …
3
Gaia Environmental, Inc. v. Galbraith, 451 S.W.3d 398, 407 (Tex. App. – Houston
[14TH
Dist.] 2014, review denied). …
4
Gaia, 451 S.W.3d at 403. …
6
Such a situation forces counsel to divide his loyalty between his duty to his
client and his concerns that he may illegally deprived of his liberty. It was
those concerns that prompted David Christopher Hesse to move for a mistrial
and to request being withdrawn during trial.
That concern has passed in that nothing that David Christopher Hesse
does at this point can cause him to again be held in contempt for aggressively
and competently representing his client. Trial was before a visiting judge and
counsel presumes that Respondent or the next judge will properly follow the
procedure set forth in Pink.
The fact that there is a contempt proceeding pending against counsel
does not change that fact or afford grounds to remove counsel.
Respondent’s Right to Remove Counsel:
This Honorable Court has held “[T]hat the power of the trial court to
appoint counsel to represent indigent defendants does not carry with it the
concomitant power to remove counsel at his discretionary whim.”5 This Court
further noted that, “the trial court did not have the inherent power to validly
remove appointed counsel and doing so patently violated the relator’s right to
5
Stearnes v. Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989). … …
7
counsel.”6
But that is what the Respondent did.
Due Process Concerns:
The Supreme Court has held that the “fundamental requirement of due
process is the opportunity to be heard “at a meaningful time and in a
meaningful manner.”7
But Relator was denied the opportunity to even be heard before his
attorney was removed – originally or in the amended order.
Entitlement to Writ of Mandamus:
This Court has mandamus jurisdiction in criminal-law matters.8
Mandamus is an extraordinary remedy. Mandamus will issue only to
correct a clear abuse of discretion or the violation of a duty imposed by law.
Mandamus relief is available if the trial court violates a duty imposed by law.9
A writ of mandamus will issue to correct trial court actions when there has
been a clear abuse of discretion, particularly where the remedy by appeal is
6
Stearnes, 780 S.W.2d at 223. …
7
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). …
8
Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex. Crim. App. 2003) (orig. proceeding)
(per curiam). …
9
Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). …
8
inadequate.10 A trial court abuses its discretion if it acts without reference to
any guiding rules and principles or if the trial court’s act is arbitrary or
unreasonable.11 “A trial court has no discretion in determining what the law
is or applying the law to the facts.”12 The “trial court’s erroneous legal
conclusion, even in an unsettled area of law, is an abuse of discretion.”13
A writ of mandamus will issue to correct trial court actions when there
has been a clear abuse of discretion, particularly where the remedy by appeal
is inadequate.14 This Court has previously held that the remedy by appeal in
a situation such as this is inadequate.15
But that is exactly what Respondent has done. He has violated the law
as laid down by this Court in Stearnes v. Clinton,16 by removing appointed
10
In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003); Ayres v. Canales, 790 S.W.2d 554,
556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d
240, 244 (Tex. 1978); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992); Jampole v. Touchy, 673
S.W.2d 569, 572 (Tex. 1984). …
11
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). …
12
Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996)(citing Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992)). …
13
Id. …
14
Ayres v. Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d
343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978). …
15
Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989). …
16
Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989). …
9
counsel without a hearing and on his whim. And in so doing, he has acted
directly in contravention of controlling precedent to interfere with the
attorney-client relationship that exists between Relator and David Christopher
Hesse. Mandamus should issue to set aside this order.
QUESTION NO. TWO RESTATED: A Writ of Prohibition should issue to
prohibit Respondent from holding any hearings on the case until such
time as the application for writ of mandamus shall have been
determined.
Respondent has set the case on the trial court’s docket on June 1, 2015,
at 1:30 p.m.. As it presently stands, David Christopher Hesse has been
removed as Relator’s attorney and has no right to represent Relator at that
hearing. Relator does not know whether this Court can rule on this application
before that time.
Entitlement to Writ of Prohibition:
The writ of prohibition is an extraordinary judicial writ that may be
issued by a Court of Appeals, as a court of superior jurisdiction, directed to a
court of inferior jurisdiction. Its purpose may be to prevent an inferior
tribunal from exercising a jurisdiction that it has no lawful right to exercise.
The writ of prohibition as used in Texas has three principal functions: (1)
preventing interference with the higher courts in deciding a pending appeal;
10
(2) preventing an inferior court from entertaining suits which will relitigate
controversies which have already been settled by the issuing court; and (3)
prohibiting a trial court’s action when it affirmatively appears that the court
lacks jurisdiction.17
Mandamus and prohibition are available in a criminal proceeding if the
relator shows that: (1) the act he seeks to compel or prohibit does not involve
a discretionary or judicial decision; and (2) he has no adequate remedy at law
to redress the harm that he alleges will ensue.18 The first prong requires the
relator to show that he has a clear right to the relief sought, meaning that the
facts and circumstances dictate only one rational decision under unequivocal,
well-settled, and clearly controlling legal principles.19 When a relator seeks
extraordinary relief that amounts to the undoing of an accomplished judicial
act, that relief is more in the nature of mandamus than prohibition.20
Any attempt by Respondent to force the underlying case to hearings or
17
Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941, 943 (Tex. App. – Dallas 1982, orig.
proceeding). …
18
Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding);
see also In re State ex rel. Weeks, 391 S.W.3d 117, 122–23 (Tex. Crim. App. 2013) (orig.
proceeding); De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding). …
19
Simon, 306 S.W.3d at 320. …
20
Id. at 320 n. 2. …
11
to trial will interfere with this Court’s jurisdiction and will deprive Relator of
the right to have the impropriety of the challenged order removing David
Christopher Hesse determined before he is subjected to hearings or a trial
hereunder.
A writ of prohibition should issue to prevent the Respondent from
taking any action to proceed to hold hearings or to proceed to trial on the
indictment against Respondent.
CONCLUSION
This Court should hold that Respondent abused his discretion when,
without a hearing, he removed David Christopher Hesse as Relator’s attorney
and appointed Harris S. Wood, Jr. to represent Relator. This Court should
further hold that a writ of prohibition is necessary to prevent the Respondent
from proceeding to trial on the indictment against Relator. This Court should
thereafter issue its writs of mandamus and prohibition in conformity with the
allegations of this Petition and the Court’s findings. This Court should grant
Relator general relief.
12
Respectfully submitted,
/s/ D. Chris Hesse
David Christopher Hesse
S.B.O.T. # 24049081
112 West 8th Avenue, Suite 301
Amarillo, Texas 79101
Tel: (806) 350-6785
Fax: (806) 350-6786
Chris@PanhandleCriminalDefense.Attorney
Attorney for Relator, Brandon Jay Carter
Of Counsel:
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Michael Mowla #24048680
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
(972) 795-2401
Fax: (972) 692-6636
michael@mowlalaw.com
13
CERTIFICATE OF SERVICE
I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Petition was delivered to:
Honorable Thomas R. Culver, III
240TH Judicial District Court
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3E
Richmond, Texas 77469
Becky.Fisher@fortbendcountytx.gov
John F. Healey, Jr., District Attorney
Gail Kikawa McConnell, Ass’t District Attorney
1422 Eugene Heimann Circle
Richmond, TX 77469
Gail.McConnell@fortbendcountytx.gov
Harris S. Wood, Jr.
701 North Post Oak Road #425
Houston, Texas 77024
Fax: (281) 579-1586
hwoodatty@yahoo.com
On May 14, 2015.
/s/ D. Chris Hesse
D. Chris Hesse
14
CERTIFICATE OF COMPLIANCE
This is to certify that, using the word count feature of WordPerfect X7,
the total number of words in the Petition is 2138, except in the following
sections: caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of questions presented, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix. This
document also complies with the typeface requirements because it has been
prepared in a proportionally-spaced typeface in 14-point Georgia and the
footnotes are in a proportionally-spaced typeface in 12-point Times New
Roman.
/s/ D. Chris Hesse
David Christopher Hesse
15
APPENDICES
16
APPENDIX 1
THE STATE OF TEXAS Amanda Bolin
30.02 {d}
22990007
vs
BRANDON JAY~~ER
,_/ //
D.O.B.: CONTROL NO: 12-006209
FELONY 7ION INTEND ARREST DATB: Not arrested on this charge
OPPBNSE DATE: September 26, 2011
AGBNCY/AGBN'CY NO: FORT BEND COUNTY SHERIFF'S
OFFICE/ 110025389
BAJ'.L AMOmrl': PRJ'.OR CAUSE NO;
TED: / CO-DEF:
[/ ' _,/' ~
IN THE NAME AND BY ~'Uf'Ho(r7YOF,~ STATE OF TEXAS:
The duly organized Grand ~ury of /tojt /~en/;~unty, Texas, presents in the
District Court of Fort B~n~~· T~x'a'S, ~tn t in Fort Bend County,
Texas, BRANDON JAY CARTER~··'11~ter ./sixlfd Defendant, heretofore on
or about September 26, 2011, did t;i:re~~n)sl~h~ntentionally or knowingly
enter a habitation, without the~:Y=(ctive)con~t\of Larissa Treybig, the
owner thereof, and attempted tb'-96mmit 9r
c?\~itf:j~~:
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AGAINST THE PEACE AND DIGNITY OF THE STATE. -z~,,~~/~;~
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12-0CR-001181!
:l-Bl.,. ,,.,,. .. 11. B lllo ~ Ill
ORDERS OF COURT
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District Court THE STATE OF TEXAS
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APPENDIX 4
12-0Cll-061186
OllOEll
Order
345U'15
~II !Ill
/
\ \\ R TO SUBSTITUTE COUNSEL
~ 2 ___
YI"L~"-... '\
\
l ) \
BRAND~NJ~~
\~2~86
Upon determination by the Court t t~~igent,
7-- ~--~y-;v
/'\
Date: March 02, 2015
( )l <)
~~
/\ r; ~\
>~
From: levy, Raquel
Sent / Monday, March 02, 2015 3:55 PM
To: / 'hwoodatty@yahoo.com'
Subject / / FELONY APPOINTMENT - CERTIFICATE OF CONTACT
Attachmen • / CERTIFICATE OF CONTACT.doc
I! /'
DearCou~I~~
You have been represent:
~)
Name:
DOB:
04/25/1991 ~~
Address: 802 Vestabe~ I /~
Houston, Tx 77073 / ) \
Phone: 281-232-6744
~L)) ~
Charge: Burglary Habitation Intend 5exoif(nse #1 - ~
Court Date: 4-6-15@ 1:30 PM IN THE 240TH CT COUR /\. \, ·~
/' / '-> 'v>
If the defendant has made bond, they may be reached af'th~dress ~ne otherwise they will be in the Fort Bend
County Jail. As you are aware it is your responsibility to ~e eve ~b~ effort to contact the defendant by the
end of the next working day after today. Failure to comply w· thi 'fesp 1 1tY ay result in your replacement as
counsel for the defendant pursuant to Art. 26.04(1<} of the Co f Cri ma~i>\
( ( .
Please reply to this email IMMEDIATELY and acknowledge your rece~t ~receiving.()
\. ~ ,../")
Raquel Levy ~- //
Administrative Court Services / / \
Indigent Defense Coordinator / , ~
301 Jackson St. \,/ /~~\)
Richmond, Tx77469 ( /\ ' )
/>
2s1-341-31so
FAX #281-238-3224
Raguel.Lev~@fortbendcountvtx.gov
\,\ ,
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1
APPENDIX 5
UNSWORN DECLARATION
CPRC § 132.001
"My name is Brandon Jay Carter, my date of birth is April 25 111 , 1991, and my address is
1410 Ransom Road, Richmond, Texas 77469. l declare under penalty of perjury that the
following is true and correct
I want Attorney David Christopher Hesse to remain as my court appointed attorney in
Cause# 12DCR61186 in the 240 111 District Court, Fort Bend County, Texas. I never asked for
another counsel in this matter."
EXECUTED in Fort Bend County, State of Texas on the 4th day of March, 2015.
Declarant
APPENDIX 6
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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