June 18, 2016
IN THE
THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
JAMES ARTHUR BROWN, Defendant-APPELLANT
vs.
THE STATE OF TEXAS, Plaintiff-APPELLEE
ON APPEAL FROM THE 331ST JUDICIAL DISTRICT
OF TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NUMBER D-1-D-C-13.300630
THE HONORABLE DAVID CRAIN, PRESIDING JUDGE
APPELLANT’S RULE 68 PETITION FOR DISCRETIONARY REVIEW
Brian Bernard Tanisa Jeffers
Bernard & Associates Bernard & Associates
1203 Baylor St. 1203 Baylor St.
Austin, TX 78703 Austin, TX 78703
Phone: 512.478.5291 Phone: 512.478.3408
Fax: 512.478.9827 Fax: 512.478.9827
Email: attorneybernard@yahoo.com Email: tanisaL@hotmail.com
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED
-1-
IDENTITY OF PARTIES AND COUNSEL
Appellants: JAMES ARTHUR BROWN
Appellants’ Counsel:
Brian Y. Bernard
Tanisa Jeffers
Bernard & Associates
1203 Baylor St.
Austin, Texas 78703
(512) 478-5291
(512) 478-9827 Facsimile
Brian Y. Bernard
Tanisa Jeffers
attorneybernard@yahoo.com
tanisaL@hotmail.com
Appellee: TRAVIS COUNTY DISTRICT ATTORNEY’S OFFICE
Appellee’s Counsel:
Rosemary Lehmberg (c/o William G. Swaim III)
Office of the Travis County District Attorney
Appeal Division
P.O. Box 1748
Austin, Texas 78701
(512) 854-9400
(512) 854-9789 Facsimile
rosemary.lehmberg@traviscountytx.gov
Page 2 of 38-
REQUEST FOR ORAL ARGUMENT
JAMES ARTHUR BROWN, Defendant-Appellant, respectfully requests oral
argument. Oral discussion of the facts and the applicable precedent would benefit
the Court.
Page 3 of 38-
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL ....................................................................2.
REQUEST FOR ORAL ARGUMENT…………………………………………………………...3
TABLE OF
CONTENTS………………………………………………………………………………….4v
TABLE OF AUTHORITIES………………..…………………………………………………….5
STATEMENT OF JURISDICTION………………………………………………………………7
STATEMENT OF THE CASE………………………………..…………………………………..9
STATEMENT OF FACTS AND PROCEDURES……………..……………………………….11
STATEMENT OF ISSUES PRESENTED………………………………………………………8
1. Was there insufficient evidence to convict Appellant of Retaliation pursuant to Texas Penal
Code § 36.06?………..…………………………………………………………………….20
2. Did the trial court err when it overruled Appellant’s Motion to Quash Indictment? ………36
3. Was there ineffective assistance of counsel where trial counsel failed to withdraw and there
was no hearing on Appellant’s Motion for New Trial within the 75-day time period? ......36
4. Did the trial court err when it allowed Police Officer Pile to testify from the Assault Victim
Statement over Appellant’s objection in violation of the public records exception under
Texas Rules of Evidence 803(8)(b)………………………………………………………..25
SUMMARY OF ARGUMENT .....................................................................................................20
ARGUMENT AND AUTHORITIES............................................................................................20
1. Standard of Review. .............................................................................................................21
a. Legal Sufficiency………………………………………………………………………………...21
b. Factual Sufficiency...............................................................................................................23
i. Intentionally or Knowingly………………………..…………………………………….27
ii. Harms or Threatens to Harm…...……………………………………………………….28
iii.Unlawful Act.…………………………………………………………………………...29
iv. In Retaliation for or on Account of their Service as a Public Servant…..……….……30
c. The Video…………………………………………………………………………………..33
2. Quash Indictment……………………………………………………………………………35
3. Ineffective Assistance……………………………………………………………………….35
PRAYER FOR RELIEF.. .............................................................................................................41.
CERTIFICATE OF COMPLIANCE & SERVICE…………………..………………………….42
EXHIBIT A………………………………………………………………………………………43
Page 4 of 38-
TABLE OF AUTHORITIES
CASES:
Jackson v. State, 443 U.S. 307 (1979) ...........................................................................21
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ....................................21
Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002) ........................................21
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ..........................................21
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000) ...........................................21
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) ....................................21
In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999) ...........................................21, 22
Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App.1983) .........................................21
Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App.1993) ...................................22
Coward v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston 1996) ...............................22
Puckett v. State, 801 S.W.2d 188, 194 (Tex. App.-Houston 1990) ................................22
Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.-San Antonio 1996) ............................22
Santellan v. State,939 S.W.2d 155, 164 (Tex.Crim.App.1997)………...……………..24
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000)………………..……………24
Goodman v. State,66 S.W.3d 283, 285 (Tex.Crim.App.2001)…………………………….24
Zuniga v. State, 144 S.W.3d 477, (Tex.Crim.App.2004).……………………………………...24
Cada v. State, 334 S.W.3d 766, 770 (Tex.Crim.App.2011)………….………………..26
Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011)………………………….26
Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999)……………………….……….26
Beltran v. State, 593 5 S.W.2d 688, 689 (Tex. Crim. App. 1980)……….…………….…..27
Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston 2006)………….………………………...28
Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994)……………………...28
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)…………………29
United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987)……………...………..29
State v. Weippert, 237 N.W.2d 1 (N.D.1975)…….……….………………………………..29
Meyer v. State, 366 S.W.3d 728 (Tex. App. Texarkana 2012)………….………………………30
Wright v. State, 979 S.W.2d 868, 869 (Tex.App. Beaumont 1998)………………………31
Stafford v. State, 948 S.W.2d 921, 923-24 (Tex. App. Texarkana 1997)………………..31
McCoy v. State, 932 S.W.2d 720, 724 (Tex.App. Fort Worth 1996)…………………….31
Wilkins v. State, 279 S.W.3d 701 (Tex. App. Amarillo 2007)………………………….31
In re M.M.R., 932 S.W.2d 112, 115 (Tex. App. El Paso 1996)…………………………31
Wiggins v. State, 255 S.W.3d 766 (Tex. App. 2008)……………………………………33
Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008)…………………….…..34
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)………………….…..34
Mayes v. State, 8 S.W.3d 354, 358-61 (Tex. App. Amarillo 1999)………………….….34
Strickland v. Wasington, 466 U.S. 668, 692 (1984)………………………………….…36
5
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003)……………..………36
Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999)………………………….36
Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)……………………………..36
Smith v. Robbins, 528 U.S. 259 (2000)………………………………………………….37
Burdine v. Johnson, 262 F. 3d 336, 345 (5th Cir. 2001)…………………………………37
United States v. Cronic, 466 U.S. 648, 659 (1984)…………………..………………… 37
States v. Russell, 205 F.3d 768, 770-71 (5th Cir. 2000) ……………..………………….37
Cooks v. State, 240 S.W.3d 906, 911 (Tex.Crim.App. 2007) …………………………..38
Massingill v. State, 8 S.W.3d 733 (Tex.App.-Austin 1999) …………………………….39
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) ……………………………39
STATUTES:
Texas Penal Code § 6.03(a)…….…………………………………………………...27
Texas Penal Code § 36.06………….…..……………………………………….27, 28
Texas Penal Code § 1.07(48)…………………………………………………………….30
Tex. Penal Code Ann. § 2.01…………………………………………………………………30
Tex.R.App.P. 21.8(c)………………………………………………………………...….381
1Reference: Designation of record and transcript are as follows: RR=Reporter’s Record (or Trial
Transcript), CR=Clerk’s Record
6
STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under rules 4.03 and 4.04 of
Texas Code of Criminal Procedure as an appeal from a final conviction and
sentence in 331st Judicial District for the State of Texas. Notice of appeal
was timely filed in accordance with Rule 26.2 of the Texas Rules of
Appellate Procedure. The Third Court of Appeals issued judgment on May
12, 2015 via Memorandum Opinion before Justices Puryear, Pemberton and
Bourland affirming the trial court’s judgment of conviction. Jurisdiction of
this court is invoked under rule 68 of the Texas Rules of Appellate
Procedure regarding petitions for discretionary review.
7
No. 03-13-00760-CR
IN THE
THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
JAMES ARTHUR BROWN, Defendant-APPELLANT
vs.
THE STATE OF TEXAS, PLAINTIFF-APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:
JAMES ARTHUR BROWN, by and through the undersigned counsel, files this
petition for discretionary review in appeal of the affirming of his conviction by the Third
Court of Appeals, and in support, offers the following:
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I. Did the appellate court err when it determined there was legally sufficient evidence to
convict appellant for the offense of Retaliation pursuant to Texas Penal Code §36.06?
II. Did the appellate court err when it ruled Appellant’s Motion to Quash Indictment was
only an oral motion when a pro se written motion had also been filed?
III. Did the appellate court err when it overruled Appellant’s claim of ineffective
assistance of counsel?
IV. Did the appellate court err when it denied Appellant’s Motion for Abatement of
Appeal?
8
STATEMENT OF THE CASE
Appellant James Arthur Brown was charged with Retaliation, a third degree
felony, under cause number D-1-D-C-13-300630 on March 28, 2013. The warrant
was executed on April 5, 2013 (CR . 8). Brown was assigned court appointed
counsel on May 1, 2013.
On May 29, 2013 a Travis County Grand Jury returned an indictment
charging Brown with Obstructive Retaliation.
Appellant James Arthur Brown was arrested and charged with Retaliation
under cause number D-1-D-C-13-300630 on April 5, 2013. (CR p. 6). Brown was
assigned court appointed counsel on May 1, 2013. Due to the nature of the case
and the classification of the alleged victims as public servants, Special Prosecutor
Colby Holcomb was appointed to prosecute the case on April 5, 2013. (CR p. 10).
Prior to indictment Brown filed a series of motions. On May 15, 2013
Brown filed a pro se Motion Requesting Examining Trial (CR p. 13). Brown’s
Motion Requesting Examining Trial was not ruled upon by the trial court at that
time. (CR p. 15). On May 17, 2013 Brown filed a pro se Motion Requesting
Speedy Trial (CR p. 16). Brown’s Motion Requesting Speedy Trial was not ruled
upon by the trial judge at that time. (CR p. 18). On May 29, 2013 a Travis County
Grand Jury returned a three-count indictment charging Brown with Retaliation.
(CR p. 19). Thereafter, Brown filed a pro se Motion for Discovery (CR p. 21).
9
Brown was notified that the case was indicted on June 5, 2013. (CR p. 26).
Recognizing there would possibly be disputed issues of fact, Brown’s court
appointed counsel filed a Motion for the Appointment of an Investigator. Said
motion was granted by the trial court on May 30, 2013. (CR p. 27). Brown filed a
pro se Motion for Reduction of Bond and Motion to Suppress Evidence on July
12, 2013 (CR p. 28, 31). Brown’s pro se Motion for Reduction of Bond and
Motion to Suppress Evidence were not ruled upon by the trial court at that time.
(CR p. 30, 32). Brown waived his right to a jury trial at arraignment. (CR p. 33-
34).
Brown continued filing pro se motions, filing Motions to Quash Indictment
on September 4, 2013 and October 9, 2013. (CR p. 35, 42). Brown’s pro se
Motions to Quash Indictment were not ruled upon by the trial court at that time.
(CR p. 39, 46). Brown’s court appointed counsel filed a Motion to Have the
Defendant Examined by a Psychiatrist on September 4, 2013. (CR p. 40). Said
motion was granted by the trial court. (CR p. 41). After having waived his right to
a jury trial, a trial before the court began on October 23, 2014. Brown was found
guilty and sentenced to 15 years in the Texas Department of Correction. (CR p.
52).
The Third Court of Appeals issued judgment on May 12, 2015 via
Memorandum Opinion before Justices Puryear, Pemberton and Bourland
affirming the trial court’s judgment of conviction. Jurisdiction of this court is
10
invoked under rule 68 of the Texas Rules of Appellate Procedure regarding
petitions for discretionary review.
STATEMENT OF PROCEDURAL HISTORY
On April 5, 2013 Brown was arrested for Retaliation stemming from an
incident occurring after his parental rights were terminated as to his eldest
daughter, three-year-old Layla. (CR p. 6). Once the jury returned a verdict
terminating his parental rights, it was alleged that Brown “stormed” out the
courtroom Id. As he waited at the elevator he allegedly hurled threats at 1. Jannice
Joseph, the Assistant District Attorney who prosecuted the case; 2. Sara Laney, the
CPS caseworker; and 3. Cynthia Dyar, the Attorney ad litem for the child. Id.
A trial before the court was commenced on October 23, 2013. The court
overruled all pretrial motions at that time. The state called Attorney ad Litem
Cynthia Dyar as its first witness (RR p. 10, line 22). Ms Dyar testified that after
the verdict was read Mr. Brown “stormed” out the courtroom with his mother
before the entire verdict was read. (RR p. 16, lines 3-8). Ms. Dyar testified that
once she, Ms. Joseph and Ms. Laney left the courtroom and entered the hallway
that Mr. Brown started “screaming” at us “I’ll get the electric chair for what I do.”
(RR p.17, lines 4-6; RR p. 21, line24). Ms. Dyar testified that as Sheriff’s deputies
stood between both she, the other ladies and Mr. Brown that Mr. Brown said “I
know where you live” on more than one occasion, that “his life was over” and that
the state “would not get his other daughter.” (RR p. 22, lines 1-5). Ms. Dyar
11
testified that the courthouse security video gives only “partial angles,” but that Mr.
Brown was “agitated, pacing back and forth” in front of the elevator and then got
on the elevator once it opened. (RR p. 27, lines 2-6). On cross examination, Ms
Dyar admitted that Mr. Brown did not threaten the three ladies specifically, that he
never said “I’m coming--” and that he was expressing his grief, but she still felt
threatened (RR p. 30. lines 24-25; RR p. 31, lines 1-2); RR p. 31, lines 14-15 &
23-25).
Sara Laney, CPS caseworker testified that Mr. Brown appeared agitated as
he waited for the elevator with sheriff’s deputies standing between her and the
other ladies and began making threats that appeared to be directed at the three
ladies because he “was looking directly at us” (RR p. 38, lines 24-25; RR p. 39,
lines 1-3). Ms. Laney testified that he repeated “I don’t care if I get the electric
chair, I know where you live, let them arrest me.” (RR p. 39, lines 13-19). On
cross examination, Ms. Laney admitted that Mr. Brown called her right before trial
and said “take my baby, see what happens” which also made her “uncomfortable.”
(RR p. p. 42, lines 14-16). Ms. Laney admitted that her back was to him when he
started yelling and that he was closer to the sheriff’s deputies than he was to she
and the other two alleged victims. (RR p. 46, lines 10-12: RR p. 48, lines 22-25).
Ms. Laney also testified that Mr. Brown said something to the extent of “they’ve
taken my babies, my life is over.” (RR p. 49, lines 18-21).
Assistant District Attorney Jannice Joseph testified that Mr. Brown’s
behavior was “up and down” during the trial, that sometimes he was “fine” and
12
that he made some outbursts during the state’s closing arguments, but she became
more concerned when she thought she saw him “write down the foster mothers
information.” (RR p. 54, lines 15-23); (RR p. 55, lines 13-16 & lines 21-23). She
testified that Mr. Brown “stormed out” while the judge was still speaking, that the
distance between she and he was less than thirty feet and that he was obviously
“angry and upset” when he began muttering “I know where you live…I got D and
E so Ariana [defendant’s younger daughter who was not a party to this case] is
gone…My life is over, I’m going to get the electric chair.” (RR p. 57, lines 16-19):
(RR p. 60, lines 19-23); (RR p. 61, lines 6-9); (RR p. 61, lines 20-23 & p. 62, lines
1-6). Ms. Joseph testified that “he looked right at her” as he uttered those words,
making her “concerned for her safety” even while Mr. Brown’s mother attempted
to calm him, telling him to stop because “nobody is going to do anything.” (RR p.
62, lines 9-12; lines 17-19 & lines 21-25).
On cross-examination Ms. Joseph testified that it would surprise her to hear
sheriff’s deputies present at the time of the incident testify that Mr. Brown was not
“threatening anyone,” was instead “blowing off steam” and that he “was talking to
his mother” and not to [them]. (RR. p. 66, lines 6-9 & 12-15). Ms. Joseph further
testified that very soon after this incident she also attended another hearing with
Mr. Brown where “he was in the same room with her,” exhibited no threatening
behavior to anyone present and that the threats she felt he made in the instant case
were “implied and not direct.” (RR p. 67, lines 8-19 & lines 12-25).
The defense called Deputy Melissa Slone as its first witness. Ms. Slone
13
testified that as Mr. Brown pushed the button for the elevator he was upset, but
quiet when he left the courtroom with his mother, that is until the three alleged
victims entered the corridor where he waited for the elevator. (RR p. 77, lines 19-
23, RR p. 78, lines 5-8). The deputy testified that his speech became more elevated
at the alleged victims appearance outside the courtroom and said “I can’t live
without my kids” and “I know where you work.” (RR p. 80, lines 2-6 & lines 9-
11). But the deputy also believed Mr. Brown was “talking to his mother” as that is
“who he was looking at,” but “he was talking loud enough to where everybody
could hear.” (RR p. 81, lines 5-10). Deputy Slone thought it “understandable” that
Mr. Brown was upset, did hear him say “I know where you work,” but felt that the
ladies were safe and not under any threat. (RR p. 82, lines 7-9, lines 20-22; lines 4-
6). On redirect she also admitted that the entire incident lasted “less than a
minute,” and that she had in fact “observed the entire incident.” (RR p. 85, lines 6-
7 & lines 8-11).
The defense next called Deputy Porsche Arnold to the stand. She testified
that she did not think Mr. Brown should have been arrested as he was simply
grieving over the loss of his child. (RR p. 86-87, lines 23-25 & lines 1-2; RR p. 87,
lines 3-11). On cross, Deputy Arnold testified that the alleged victims told her
“Mr. Brown said ‘I know where you live,’ but that she herself had not heard him
say that. (RR p. 88, lines 16-22). She also testified that Mr. Brown was looking at
everyone in the corridor, not just the alleged victims as he made the alleged
inflammatory statements, i.e. he was looking at “everybody…the ladies, me, his
14
mom, everybody that was out there,” while he repeatedly pushed the elevator
button ultimately taking the first elevator that arrived. (RR p. 88, lines 3-6; RR p.
90, lines 1-5).
The defense called Deputy Christopher Duncan, an 18-year veteran of the
department, who testified that he overheard Mr. Brown say “I’m not afraid of
dying,” but did not overhear Mr. Brown say “I know where you live.” (RR p. 92,
lines 6-14). Deputy Duncan also did not feel that Mr. Brown should have been
arrested as he heard no threats and felt Mr. Brown was simply upset over the result
of the termination hearing. (RR p. 92 lines 15-21). On cross, Deputy Duncan also
reiterated that Mr. Brown said he was not afraid to die and that “he wasn’t afraid
of the electric chair” as he stood between Mr. Brown and the three ladies. (RR p.
93, lines 7-9 & lines 18-21).
Despite defense counsel’s advice to the contrary, Mr. Brown chose to
testify on his own behalf. Mr. Brown testified that he was talking to his mother
about filing a lawsuit as he waited for the elevator saying once I file “they’re
going to want to give me the electric chair when I’m done.” (RR p. 95, lines 15-
21). Mr. Brown testified that as he was talking to his mother he 1. never spoke of
harming anyone; Id. 2. never said “I know where you live.” (RR p. 96, lines 11-
14); 3. and never said “I am not afraid of dying, I’m coming for you” or “When I
come to your house they’ll arrest me.” (RR p. 96, lines 20-25; RR p. 97, lines 1-9),
but did say “they’re going to want to give me the electric chair, they took my
babies” and “my life is over if my kids are gone,” (RR p. 96, lines 17-19). In
15
response his mother said “be quiet they’re going to take you to jail” which
prompted him to say “I’m not afraid of going to jail.” (RR p. 98, lines 12-17). In
reference to the comment regarding the electric chair, he admitted to speaking
“figuratively.” (RR p. 98, lines 6-10). He also admitted to making the “electric
chair” comment in civil court as well, but was not arrested saying he felt that with
this arrest the state “was trying to prove a point.” (RR p. 98, lines 18-25). Mr.
Brown testified that he never said he would hurt anyone and that he wasn’t
planning to hurt anyone. (RR p. 99, lines 4-15). He admitted he had changed his
life, quit selling drugs, became a licensed HVAC technician, was gainfully
employed, but “still drank and smoked a little powder,” but then quit for the sake
of his children. (RR p.100, lines 6-16). On cross-examination he testified that he
never said “take my baby, see what happens” to the caseworker. (RR p. 101, lines
11-12) and that as he spoke, he never looked at the three ladies because “his back
was to them” (RR p. 103, lines 6-10).
At sentencing the defense called Tiffany Boyden, the mother of Brown’s
children. (RR p. 115, lines 8-13). At the point she takes the stand, Brown calls the
judge a “racist” in open court and is removed from the courtroom. (RR p. 116,
lines 5-13). Boyden testified that Brown was suicidal, not homicidal after the
jury’s verdict and felt his “life was over.” (RR p. 116, lines 23-25). Boyden went
on to testify that despite the State’s contention, Brown was not a violent man and
had never “put his hands on me” in the five years that she had known him. (RR p.
118, lines 4-8). Lastly, Boyden testified that the day of the termination hearing
16
Brown had not eaten the entire day because he had no money, that she walked 15
blocks from her home to bring him a burger once the jury returned a verdict, and
that they left the courthouse together “crying” because of the loss of their child.
(RR p. 119, lines 3-13). In closing argument that State asked for 16 years in
prison, Boyden becomes upset and is removed from the courtroom. (RR p. 121,
lines 17-25; p, 122 lines 1-5). Brown continues to be disruptive in the jail behind
the courtroom. The judge reiterates that Brown made a “racially offensive” remark
and sentences him to 15 years in the Texas Department of Correction. (RR p. 123,
lines 7-25).
The Third Court of Appeals issued judgment on May 12, 2015 via
Memorandum Opinion before Justices Puryear, Pemberton and Bourland
affirming the trial court’s judgment of conviction. Jurisdiction of this court is
invoked under rule 68 of the Texas Rules of Appellate Procedure regarding
petitions for discretionary review.
SUMMARY OF ARGUMENT
Brown was unlawfully convicted of Retaliation pursuant to Texas Penal
Code 36.06(a)(1)(a) as there was insufficient evidence to support the conviction.
Brown was denied effective assistance of counsel during a critical stage of his
defense as he was essentially unrepresented during the 75-day time period in
17
which to have a hearing on his Motion for New Trial. Brown’s Motion for
Abatement of Appeal should have been granted as new evidence had been
discovered.
ARGUMENT AND AUTHORITIES
I. The appellate court erred as there was insufficient evidence to convict
Appellant of Retaliation pursuant to Texas Penal Code § 36.06.
a. THE EVIDENCE LACKS LEGAL SUFFICIENCY
In evaluating sufficiency of the evidence, the standards for review are well
established. In applying a legal sufficiency standard, courts review all the evidence
“most favorable to the verdict and decide whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010); See also Herrin v. State, 125 S.W.3d 436, 439
(Tex.Crim.App.2002).
The offense of retaliation involves global factors. The statute’s purpose is
to encourage "a certain class of citizens to perform vital public duties without fear
of retribution." In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999)
(quoting Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App.1983). The vital
public duties include “reporting criminal activities, testifying in official
18
proceedings, or cooperating with the government in a criminal investigation.”
Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App.1993).
Brown challenges the legal sufficiency of the evidence that he threatened to
harm Dyar, Laney and Joseph. Dyar, Laney and Joseph testified that they heard
him say “I know where you work,” “I’m gonna get the electric chair” and “my life
is over.” (RR p. 22, lines 1-5); (RR p. 39, lines 13-19); and (RR p. 57, lines 16-
19), (RR p. 60, lines 19-23), (RR p. 61, lines 6-9), (RR p. 61, lines 20-23 & p. 62,
lines 1-6). The three victims testified that they took those statements as threats
because of the ruling just minutes before terminating Brown’s rights as to his 3-
year-old daughter, Layla. As further evidence of legal insufficiency, Brown points
to the testimony of officers Slone, Arnold and Duncan who all testified that they
did not feel Brown had done or said anything “that would have resulted in an
arrest.” (RR p. 82, lines 7-9, lines 20-22; lines 4-6); (RR p. 86-87, lines 23-25 &
lines 1-2; RR p. 87, lines 3-11); and (RR p. 92 lines 15-21).
Brown also challenges the legal sufficiency of the evidence that he intended
to retaliate against Dyar, Laney and Joseph because of their work on his
daughter’s parental rights termination case. Brown testified that he had “just lost
his child’ and that because of that “he felt his life was over.” (RR p. 96, lines 17-
19). Brown testified that “no one threatened nobody.” (RR p. 99, lines 4-15). As
further evidence of his non-retaliation, Brown points to the testimony of officers
19
Arnold and Duncan who said they felt Brown was only “grieving” when he made
the inflammatory statements. (RR p. 86-87, lines 23-25 & lines 1-2; RR p. 87,
lines 3-11); and (RR p. 92 lines 15-21).
b. THE EVIDENCE LACKS FACTUAL SUFFICIENCY
Brown challenges the factual sufficiency of the evidence that he threatened
to harm Dyar, Laney and Joseph. Contrary to the testimony of the three victims
that Brown threatened assault and aggravated assault when he said “I’m gonna get
the electric chair,” Brown points out that he was talking to his mother about filing
a lawsuit as he waited for the elevator saying once I file “they’re going to want to
give me the electric chair when I’m done.” (RR p. 95, lines 15-21).2 Brown
testified that as he was talking to his mother he 1. never spoke of harming anyone;
Id. 2. never said “I know where you live.” (RR p. 96, lines 11-14); 3. and never
said “I am not afraid of dying, I’m coming for you” or “When I come to your
house they’ll arrest me.” (RR p. 96, lines 20-25; RR p. 97, lines 1-9). Accordingly,
Brown believes that the evidence was factually too weak to support the verdict.
Furthermore, Brown challenges the factual sufficiency of the evidence that
he intended to retaliate against Dyar, Laney and Joseph, arguing that the proof of
those elements is outweighed by contrary proof. In addition to Brown’s own
testimony, Officer Slone testified as to Brown’s lack of intent, testifying that she
2This attorney has determined that Brown did in fact file a lawsuit against the State of Texas in regards to
his parental rights termination lawsuit under cause number ___________.
20
thought it “understandable” that Mr. Brown was upset and felt that the ladies were
safe and not under any threat. (RR p. 82, lines 7-9, lines 20-22; lines 4-6). Officer
Arnold also testified as to Brown’s lack of intent at retaliation, testifying that
Brown did not look only at the victims, but everyone in the corridor as he made
the inflammatory statements and believed Brown was simply “grieving” over the
loss of his child. (RR p. 86-87, lines 23-25 & lines 1-2; RR p. 87, lines 3-11).
Officer Duncan testified as well as to Brown’s lack of intent saying under oath that
he did not hear Brown make any threats and that he felt Brown was simply “upset”
over the result of the termination hearing. (RR p. 92 lines 15-21). Accordingly,
Brown believes the evidence was so factually weak as to undermine confidence in
the verdict.
Section §36.06 has been described as a good example of the `Chinese
Menu' style of alleging the elements of a penal offense" by the Texas Court of
Criminal Appeals. Cada v. State, 334 S.W.3d 766, 770 (Tex.Crim.App.2011);
Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011). Several of the
elements present alternatives for charging the offense. Cada, 332 S.W.3d at 770.
The elements and alternatives of the offense of retaliation are:
(1) The Defendant
(2) a. intentionally (or)
b. knowingly
(3) a. harms (or)
b. threatens to harm
(4) another person
(5) by an unlawful act
21
(6) a. in retaliation for (or)
b. on account of
(7) a. the service of another (or)
b. the status of another
(8) as a
a. public servant
b. witness
c. prospective witness [or]
c. informant. Id.
The State must allege at least one item from each numbered category. Id.
The elements can be plead in combination and “it is sufficient if the proof at trial
establishes any one of the alleged alternative elements beyond a reasonable
doubt.” Id. at 770-71. We measure the sufficiency of the evidence by the specific
alternative elements alleged by the State in the charging instrument. Id. at 773-74.
No other elements are considered. Id. at 774 (citing Planter v. State, 9 S.W.3d 156,
159 (Tex.Crim.App. 1999) (State’s evidence was insufficient to prove the one
theory of solicitation of capital murder that it had alleged even though it was
sufficient to prove the unplead statutory alternative). Due process requires the
State to prove each element of the offense alleged beyond a reasonable
doubt. Id. at 774, 776.
i. INTENTIONALLY OR KNOWINGLY
A person acts intentionally when it is his conscious objective or desire to
engage in the conduct or cause the result. Texas Penal Code § 6.03(a). A person
22
acts knowingly when he is aware of the nature of his conduct or that his conduct is
reasonably certain to cause the result. Id. § 6.03(b). Intent can be inferred from the
acts, words, and conduct of the accused. See Beltran v. State, 593 5 S.W.2d 688,
689 (Tex. Crim. App. 1980). Under § 36.06 if the act is done negligently or
recklessly, it is not an illegal act. See TEX. PENAL CODE ANN. §
36.06(a)(1)(A).
Brown argues that he did not act intentionally as he made the inflammatory
comments just moments after hearing a jury verdict terminating his parental rights.
He was emotional as he vented to his mother while waiting for the elevator and
felt “his life was over.” (RR p. 96, lines 17-19). There was no “conscious desire” to
retaliate against the three victims as he made promises to his mother to file a
lawsuit. Nor did Brown act knowingly as he made the inflammatory comments as
that would require that he be “aware that his conduct is reasonably certain to cause
another” to feel retaliated against. Brown would argue that a person who has just
lost his child should be entitled to verbally grieve. Even three deputies charged
with the duty of safety and security all agree that Brown was doing just that,
simply grieving. The defense presented evidence showing Brown made “off-hand,
one-time statements in anger” immediately after a ruling, and those statements
were “never uttered again.” See Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston
2006)(Evidence sufficient for conviction of retaliation where appellant did not
23
make off-hand, one-time statements in anger immediately following a ruling, but
made several statements over a period of time).
ii. HARMS OR THREATENS TO HARM
The record has established that Brown did not actually harm Dyar, Laney
and Joseph. However, a threat is a communicated intent to inflict harm.
See BLACK'S LAW DICTIONARY 1519 (8th ed.2004). In determining if the
subject comment is a threat, an objective standard is used, namely “whether a
reasonable person would foresee that the statement would be interpreted by those
to whom the maker communicates the statement as a serious expression of intent
to harm or assault.” United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th
Cir.1990); United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987). The
test is whether a threat justifies fear by an ordinary hearer, not whether the threat
caused a specific listener to actually become fearful. State v. Weippert, 237
N.W.2d 1 (N.D.1975)(emphasis added).
Dyar, Laney and Joseph testified that Brown said “I know where you work”
and “I’m gonna get the electric chair.” – just moments after hearing the jury
verdicts which terminated his parental rights as to his oldest child. Though these
words may have caused the three to feel fear, the test is whether an ordinary
hearer would be fearful. Brown argues that there were three other ordinary hearers
in the corridor that day, namely the three deputies who overheard his comments
24
and who all agreed that Brown neither did or said anything that justified him being
convicted of a felony retaliation charge. Accordingly, we believe the State failed
to prove this element of the offense.
iii. …ANOTHER BY AN UNLAWFUL ACT:
“Unlawful” is defined as “criminal, tortious or both and includes what would
be criminal or tortious, but for a defense not amounting to justification or
privilege.” Texas Penal Code § 1.07(48). In the instant case, the indictment alleged
the threatened “unlawful act” to be assault and aggravated assault. (CR p. 19). The
State presented evidence that because Brown said in some context “I’m gonna get
the electric chair” that actions which garner the electric chair amount to some form
of assault or aggravated assault. (RR p. 71, lines 23-25; p. 72, lines 1-2). However,
Brown contends that the missing element of proof is any evidence that his words
threatened unlawful action, especially where he testifies his exact statement was
“once I file a lawsuit, they’re going to give me the electric chair.” (RR p. 95, lines
15-21). See Meyer v. State, 366 S.W.3d 728 (Tex. App. Texarkana 2012), (Insufficient
evidence of retaliation where defendant sends a letter to the judge not threatening
unlawful action, but threatening both criminal prosecution and civil action against
those who violate his rights).
25
iv. IN RETALIATION FOR OR ON ACCOUNT OF THEIR SERVICE AS A PUBLIC
SERVANT
The Texas Penal Code requires that “no person may be convicted of an
offense unless each element of the offense is proved beyond a reasonable doubt.”
Tex. Penal Code Ann. § 2.01. The Texas Courts of Appeals require that the State
present evidence that the unlawful act was “in retaliation for or on account of the
service or status of a public servant,” i.e. the State must prove a retributory intent
element. As to the interpretation of this section of 36.06, the Texas Courts of
Appeals are split. Some courts require that the retributory intent be based on duties
“already performed” by the public servant while other courts believe the
retributory intent can be performed “at the same time” as the discharge of duties.
See Wright v. State, 979 S.W.2d 868, 869 (Tex.App. Beaumont 1998)
(where Riley v. State, 965 S.W.2d 1, 2 (Tex.App. Houston 1997), required "a
retributive attack for duties already performed," v. Stafford v. State, 948 S.W.2d
921, 923-24 (Tex. App. Texarkana 1997), and McCoy v. State, 932 S.W.2d 720,
724 (Tex.App. Fort Worth 1996) (upheld convictions based upon a single
incident). But see also Wilkins v. State, 279 S.W.3d 701 (Tex. App. Amarillo
2007)(Evidence insufficient to revoke defendant’s term of community supervison
based on retaliation by a preponderence of the evidence where there was no
evidence the threatening remark was made with the retaliatory intent of placing the
hearer in fear of retribution for his public service as a district judge); In re
26
M.M.R., 932 S.W.2d 112, 115 (Tex. App. El Paso 1996) (Evidence insufficient to
show violation of §36.06 where it was not shown the assault occurred “on account
of” the service of the public servant where juvenile was attempting to escape
detention officer in order to continue fight with another detainee).
Whether this section of §36.06 requires that the retributory intent be based
on public service duties “already performed” or “at the same time” as the
discharge of duties, Brown believes there is insufficient evidence to prove either.
Because 36.06 is a result oriented offense, the action criminalized is the threat to
harm and the intent to inhibit public service by others. Thus, the focus is not on
whether Brown made a threatening statement because of the work of Dyar, Laney
and Joseph as public servants on Brown’s parental rights termination case, but
rather did Brown make his statements with the intent to inhibit Dyar, Laney and
Joseph’s service as a public servant with knowledge that it was reasonably certain
that his statement would inhibit Dyar, Laney and Joseph’s service as a public
servant? The record reflects that given the discovery of the Kaufman County
murders just two days later-- Dyar, Laney and Joseph perceived Brown’s
comments as threats, but testified that the Kaufman murders did not effect their
prosecution of this case. (RR p. 43, lines 7-9; p. 66, lines 23-25 & p. 67, line 1).3
3 On March 30, 2013 just two days after Brown’s termination hearing ended, the bodies of Kaufman
County District Attorney Michael McClelland and his wife Cynthia were found in their home. Both had
been shot and killed “execution-style.” The case received widespread attention because it was initially
thought the Aryan brotherhood was responsible, but later determined that a local Justice of the Peace was
the culprit. http://dfw.cbslocal.com/2014/12/28/kim-williams-to-plead-guilty-for-her-part-in-kaufman-
27
However, the record contains no evidence that Brown intended or was reasonably
certain that his stated intent for “getting the electric chair” would in any way affect
the performance or be on account of Dyar, Laney and Joseph’s status as public
servants or cause the three of them to fear retribution. Brown was simply grieving
and contemplating filing a lawsuit.
Furthermore, the record shows that Brown left the courthouse as soon as
the elevator arrived and that he had subsequent CPS hearings prior to his arrest for
the instant offense where he showed no ire toward Dyar, Laney and Joseph and
behaved appropriately. (RR p. someone saw him get on elevator & officer saw
him leave, cross street); (RR p. had another court date). Accordingly, we believe
that no reasonable person could believe beyond a reasonable doubt that Brown
made a threatening remark with the required retaliatory intent of placing Dyar,
Laney and Joseph in fear of retribution as a result of their duty as public servants.
Whether Dyar, Laney and Joseph were public servants or not, Brown would have
made the same statements given that he felt his constitutional rights had been
violated and that he felt “his life was over” at losing parental rights to 3-year-old
Layla. See Wiggins v. State, 255 S.W.3d 766 (Tex. App. 2008)(Evidence
sufficient for retaliation conviction where at arrest defendant espouses threats and
threatening behaviors solely because of police officer’s actions while acting as a
public servant).
murders/
28
C. THE VIDEO
When the record shows a trial court’s ruling is based on a determination
that could not have possibly been derived from facts developed during trial, the
appellate court “must keenly review the issue.” Vinson v. State, 252 S.W.3d 336,
341 (Tex. Crim. App. 2008).
In such an instance, should the appellate court affirm the trial court ruling,
it commits error. Id. at 342. When objective evidence such as a video recording
fails to support the trial court’s ruling, appellate courts are justified in not giving
deference to the trial court’s ruling that are based on any portion of the record
contrary to what is objectively shown on the video recording. See Carmouche v.
State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); See also Mayes v. State, 8
S.W.3d 354, 358-61 (Tex. App. Amarillo 1999).
State’s Exhibit 4 is a video purporting to show some version of the events
which are the subject of Brown’s conviction. (RR p. ). Part I shows someone who
appears to be Mr. Brown exiting the courtroom. (RR at 12.11.28). However, the
video is cropped in such a way that you can not see whether it is actually him.
Next the video shows Brown appearing to exit again with his civil trial counsel.
(RR at 12.11.54). A Sheriff’s deputy follows moments later. (RR at 12.12.07).
Three Sheriff’s deputies appear to leave the courtroom followed closely by Dyar,
Laney and Joseph. (RR at 12.12.45). Part 2 shows the elevator opening and
29
closing on two separate occasions. (RR at 12.12.04 and 12.12.22). Brown appears
in the left corner of the screen, the camera captures the back and left profile of
him. (RR at 12.13.12). Brown walks in and out of the screen, appearing to be
waiting on the elevator. Brown does not appear agitated nor does he appear to be
talking. (Id.). The elevator then opens and closes. (RR at 12.14.33).
The record does not reflect that Mr. Brown left the courtroom twice as no
witness testified to such. Though there was testimony that Brown was speaking to
his mother when he made the inflammatory comments, the video is cropped in
such a way that you can not see anyone to the left of the screen. (RR p. his
testimony, the officers) (See RR at 12.13.12). Accordingly, Brown believes the
video evidence introduced at trial is insufficient to show he “looked right at” Dyar,
Laney and Joseph while he spoke, in fact the video does not appear to show him
speaking at all. Further, Brown believes the video evidence is insufficient to
support his conviction for the offense of Retaliation.
30
II. Was there ineffective assistance of counsel where trial counsel failed to
withdraw and there was no hearing held on Appellant’s Motion for New Trial
within the 75-day time period?
In determining ineffective assistance by counsel, it is well-established that a
two-prong analysis must take place. Deficient performance of counsel must be
established first and second that the deficient performance deprived defendant of a
fair trial. Strickland v. Wasington, 466 U.S. 668, 692 (1984). Here, appellant must
show that there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 693.
Furthermore, both the Supreme Court and the 5th Circuit have determined
that “the absence of counsel at critical stages of a defendant's trial undermines the
fairness of the proceeding and therefore requires a presumption that the defendant
was prejudiced by such deficiency.” Burdine v. Johnson, 262 F. 3d 336, 345 (5th
Cir. 2001); See also United States v. Cronic, 466 U.S. 648, 659 (1984); United
States v. Russell, 205 F.3d 768, 770-71 (5th Cir. 2000). Both Cronic and
Strickland stand for the proposition that the absence or denial of trial counsel at a
critical stage of a criminal proceeding is an “egregious circumstance requiring the
presumption of prejudice.” Burdine, 262 F. 3d at 344; Cronic 466 U.S. at 659;
Strickland 466 U.S. at 692.
Brown believes such applies to the facts of his case as trial counsel
31
did not file any pretrial motions nor did he call a key witness who
witnessed firsthand the language which is the subject of the instant
conviction. Moreover, trial counsel did not subpoena the individual
responsible for generating the video entered into evidence at trial. Brown
believes the video was edited in such a way to further enhance the State’s
case in violation of his constitutional rights to due process.
Once the trial judge renders sentence, a defendant has thirty days to file a
motion for new trial. Tex.R.App.P. 21.4(a). The Court of Criminal Appeals has
determined that this time period “is a critical stage of the proceedings.” Cooks v.
State, 240 S.W.3d 906, 911 (Tex.Crim.App. 2007). The Court of Criminal
Appeals has also determined that “a defendant has a constitutional right to counsel
during that period.” Id. A hearing on the motion for new trial must occur within
seventy-five days or it is overruled by operation of law. Tex.R.App.P. 21.8(c).
Brown was represented by trial counsel during the entire thirty-day period
for filing a motion for new trial. However, he was unwilling to continue to be
represented by trial counsel. Brown made three separate written allegations of
ineffective assistance of counsel in three separate pro se motions, i.e. his Motion
for New Trial, Motion to Appeal, and Amended Appellant’s Brief. (CR pgs. 65,
73, and 120-130). Brown’s Motion for New Trial and Motion to Appeal alleging
ineffective assistance of counsel were both filed during this critical thirty-day time
period. Appellant counsel was not appointed until after both the thirty-day time
32
period and the seventy-five day time period in which to have a hearing on a
Motion for New Trial had expired. Thus, clearly Brown was deprived of counsel
during this critical stage. Moreover, trial counsel did not file a Motion to
Withdraw until April 4, 2014.
In the instant case, the issue had a motion for new trial taken place would
have been sufficiency of evidence and ineffective assistance of counsel during the
trial. Trial counsel did not file pretrial motions nor did he call a key witness who
witnessed firsthand the language which is the subject of this indictment.
Moreover, trial counsel did not subpoena the individual responsible for generating
the video entered into evidence at trial. These witnesses will include Valerie
Brown and Travis County personnel responsible for video services. Valerie Brown
is Brown’s mother who was present when the complained of language in the
indictment was uttered.
III. Did the appellate court err when it denied Appellant’s Motion for
Abatement of Appeal?
A new trial can be garnered through discovery of new evidence. A party
who seeks a new trial on the ground of newly discovered evidence must show that
(1) the evidence has come to the party's knowledge since the trial; (2) the evidence
was not discovered earlier because of a lack of due diligence; (3) the evidence is
not cumulative; and (4) the evidence is so material that it would probably produce
a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d
807, 809 (Tex. 1983). As to newly discovered evidence, “the issue is whether the
33
trial court's refusal of a new trial involves the violation of a clear legal right or a
manifest abuse of judicial discretion.” Id. at 809.
In his Motion to Abate Appeal and Remand for Hearing on Motion for New
Trial and for Permission to File Out of Time Motion for New Trial,4 Brown filed a
letter from the trial judge where the trial judge indicated Brown’s sentence would
have been significantly reduced had he been able to have a hearing on his motion
for new trial.
Mr. Brown consider’s Judge Crain’s letter new evidence. The letter,
attached hereto and incorporated herein as Exhibit A, points out that had a Motion
for New Trial hearing taken place, it is likely the trial judge would have
significantly reduced his sentence from 15 years in the Texas Department of
Correction. Brown believes trial counsel provided him ineffective assistance of
counsel because having a hearing on the motion for new trial may have resulted in
his sentence being significantly reduced.
4 Motion to Abate Appeal… was filed December 24, 2014 via efile.
34
PRAYER FOR RELIEF
For the reasons addressed in this brief, Appellant prays that this Court reverse the
appellate court’s affirmation of conviction of Appellant for the instant offense.
Respectfully submitted,
JAMES ARTHR BROWN
Preston E. Smith Unit
1313 C.R. 19
Lamesa, TX 79331-1898
Phone: (806) 872.6741
ATTORNEY PRO SE
By: /s/ James Arthur Brown_____________
35
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been served upon the below named individuals as indicated, and according
to the Texas Rules of Civil Procedure and/or via electronic mail pursuant to
the parties’ written agreement that such service shall constitute personal
service on the 12 day of June, 2015.
Rosemary Lehmberg via electronic notice
Appellate Division: rosemary.lehmberg@traviscountytx.gov
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78701
By: /s/ James Arthur Brown
36
Exhibit A
37
Exhibit B
The Judgement of the Third Court of Appeals before Justices Puryear,
Pemberton and Bourland.
38
Brown, James A. v. State
Combined Opinion