Benny Cavazos Valverde v. State ( 2015 )

ACCEPTED
04-14-00338-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/9/2015 9:52:04 AM
KEITH HOTTLE
CLERK
No. 04-14-00338-CR
BENNY C. VALVERDE, § IN THE FOURTH FILED
DISTRICT
IN
4th COURT OF APPEALS
Appellant § SAN ANTONIO, TEXAS
§ 07/09/15 9:52:04 AM
v. § COURT OF APPEALS
KEITH E. HOTTLE
§ Clerk
STATE OF TEXAS, §
Appellee § SAN ANTONIO, TEXAS
STATE’S MOTION TO ABATE APPEAL AND REMAND CASE TO TRIAL
COURT TO APPOINT AN ATTORNEY PRO TEM BECAUSE A CONFLICT
OF INTEREST EXISTS BETWEEN APPELLANT AND THE CRIMINAL
DISTRICT ATTORNEY
TO THE HONORABLE COURT OF APPEALS:
NOW COMES, Nicholas “Nico” LaHood, Criminal District Attorney of
Bexar County, Texas, and undersigned Counsel for the State of Texas, and files
this motion asking the Court abate these appellate proceedings and remand this
case to the trial court with directions to appoint an attorney pro tem.
I. Statement of the Case
On May 23, 2012, Benny C. Valverde, appellant was indicted for a murder
that was alleged to have occurred on September 4, 2011. Trial began on February
11, 2014, and the jury returned a guilty verdict on February 14, 2014. Judgment
was entered on March 20, 2014, and, on the same day, the trial judge certified
appellant‟s right to appeal.
Appellant filed his notice of appeal on April 17, 2014. After several motions
for extension of time were granted by this court, on November 10, 2014,
appellant‟s first appellate counsel filed an Anders brief. Subsequently, appellant‟s
first appellate attorney withdrew as counsel, and appellant retained new counsel.
On January 20, 2015, appellant filed a motion to withdraw the Anders brief and to
extend time to file a substantive brief. That motion was granted. After several
other motions were filed, on June 1, 2015, appellant timely filed his new
substantive brief, which is currently before this court.
On July 1, 2015, the State was granted an extension of time to file its brief in
this case. The State‟s brief is due on July 31, 2015.
II. An Abatement is Necessary
“Each district attorney shall represent the State in all criminal cases in the
district courts of his district and in appeals therefrom, except in cases where he has
been, before his election, employed adversely.” Tex. Code Crim. Pro. Ann. art.
2.01 (emphasis added). Thus, “if an elected prosecuting attorney has previously
represented a defendant in a particular proceeding, then article 2.01 disqualifies
him from representing the State in the matter and that disqualification is imputed to
those assistants „who serve[] at his will and pleasure.‟” Scarborough v. State, 54
S.W.3d 419, 424 (Tex. App.—Waco 2001, pet. ref‟d) (quoting State v. May, 270
S.W.2d 682, 684 Tex. Civ. App.—San Antonio 1954, no writ) (per curiam)).
2
In the instant appeal, the elected district attorney, Nicholas “Nico” LaHood,
while not appellant‟s trial counsel, nonetheless did once represent appellant in this
case. (See, e.g., Reporter‟s Record vol. 5, pg. 68.) This fact has been confirmed
by District Attorney LaHood. He is, thus, disqualified from prosecuting this case,
including the appeal, and, accordingly, so are his assistants. As a result, this appeal
must be abated and remanded to the trial court so that it may appoint an attorney
pro tem for the purposes of defending the verdict on appeal.1 See Tex. Code Crim.
Pro. art. 2.07 (authorizing the trial court to appoint an attorney pro tem if the
district attorney is disqualified to act in any case or proceeding).
1
However, it must be noted that having been sworn in on January 1, 2015, District Attorney
LaHood was not the elected district attorney when this case was tried to a verdict. Therefore, his
and his assistants‟ disqualification only extends to any post-conviction proceedings, not the trial
itself, and the verdict is not disturbed by this disqualification.
3
III. Prayer
WHEREFORE, PREMISES CONSIDERED, the State prays that this court
will ABATE this appeal and REMAND the case to the trial court with directions to
appoint an attorney pro tem to represent the State on appeal.
Respectfully submitted,
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
_______/s/_______
ANDREW WARTHEN
Assistant Criminal District Attorney
State Bar No. 24079547
101 West Nueva Street
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
awarthen@bexar.org
Attorneys for the State of Texas
4
CERTIFICATE OF SERVICE
I, Andrew Warthen, Assistant Criminal District Attorney, Bexar County,
Texas, hereby certify that a true copy of the above and foregoing Motion was
emailed to appellant‟s attorneys, John G. Jasuta, at lawyer1@johnjasuta.com, and
David A. Schulman, at zdrdavida@davidschulman.com, on July 9, 2015.
_______/s/_______
ANDREW WARTHEN
Assistant Criminal District Attorney
State Bar No. 24079547
101 West Nueva Street
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
awarthen@bexar.org
Attorney for the State of Texas
5