Carter, Brandon Jay

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~~:
~~:Yw@5~~
AGAINST THE PEACE AND DIGNITY OF THE STATE. -z~,,~~/~;~
/ / -
12-0CR-001181!
:l-Bl.,. ,,.,,. .. 11. B lllo ~ Ill
 ORDERS OF COURT

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 CRIMINAL DOCKET

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240th Judicial
District Court THE STATE OF TEXAS
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 CRIMINAL DOCKET

OURT NO. 1 STYLE OF CASE ATTORNEYS
240th Judicial
DISTRICT ATTORNEY
District Court THE STATE OF TEXAS
DATE OF FILING VS
MONTH DAY YEAR () . 1 f" __ _
0 RA-Nt:>ON ~71'..a..
I I

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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
\,\ ,

y '------
"'v/j

;i
/ /
/ /

:t
,/'¥·-~~""' <

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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