Fairbanks, Evan Stuart ( 2015 )

NO. PD-1196-15/1197-15
In The Court of Criminal Appeals
Of
Texas
Evan Stuart Fairbanks, Petitioner
Vs.
State of Texas, Respondent
On Petition from the 177th District Court of
Harris County, Texas
Trial Court Cause Nos. 1388074, 1388075
First Court of Appeals Cause Nos. 01-14-00124-CR; 01-14-00125-CR
Petition for Discretionary Review
Connie B. Williams
1314 Texas, Suite 710
Houston, Texas 77002
713-225-3700
713-225-3140-Fax
Cbw1710@hotmail.com
October 8, 2015
ATTORNEY FOR PETITIONER
Petitioner Waves Oral Argument
1
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the Trial Court’s final
judgment as well as the names and addresses of all trial and appellate counsel.
Parties Counsel
State of Texas Erik Locascio
Assist. District Attorney
1201 Franklin St., Suite 600
(713) 755-5826
Evan Stuart Fairbanks Connie B. Williams
1314 Texas, Suite 710
Houston, Texas 77002
(713) 225-3700
Appellate Counsel
Evan Stuart Fairbanks Connie B. Williams
1314 Texas, Suite 710
Houston, Texas 77002
(713) 225-3700
State of Texas Erik Locascio
District Attorney’s Office
1201 Franklin St., Suite 600
Houston, Texas 77002
(713) 755-5826
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TABLE OF CONTENTS
Page
Identity of Parties & Counsel ……………………………………………02
Index of Authorities ………………………………………………………03
Statement Regarding Oral Argument …………………………………..04
Statement of the Cases………………………………………………….…04
Statement of Procedural History …………………………………………04
Grounds for Review ……………………………………………………….05
1. The Court of Appeals decision conflicts with the Texas Court of Criminal
Appeals opinion in Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App.
1998)
2. Abatement is authorized under T.R.A.P. Rule 43.6.
Argument ……………………………………………………………………05
Prayer ………………………………………………………………………..08
Certificate of Compliance …………………………………………………..08
Certificate of Service ………………………………………………………..09
Appendix …………………………………………………………………….10
INDEX OF AUTHORITIES
Cases Page
Jack v. State, 149 S.W.3d 119 (Tex. Crim. App. 2004)………………….…05
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Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App. 1998)…………..06
Rules
T.R.A.P. Rule 2 ………………………………………………………….6, 7
T.R.A.P. Rule 43.6 ………………………………………………………5, 6, 7
STATEMENT REGARDING
ORAL ARGUMENT
Petitioner Waives Oral Argument
STATEMENT OF THE CASES
These are controlled substances cases in which Petitioner, upon the
erroneous advice of trial counsel, pled guilty. (C.R. pg. 29) (In this petition C.R.
designates Clerk’s Record and R.R. designates Reporter’s Record). Petitioner filed
a motion to withdraw guilty plea, (C.R. pg. 39) a Motion for New Trial, (C.R. pg.
53), and an amended Motion for New Trial (C.R. pg. 71). The motions were denied
by the trial court.
STATEMENT OF PROCEDURAL HISTORY
The First Court of Appeals affirmed Petitioner’s convictions by a
memorandum opinion issued July 28, 2015.
Petitioner filed a Motion for Rehearing on August 11, 2015. Petitioner’s
Motion for Rehearing was denied on August 19, 2015. Petitioner sought and was
granted an extension to file his petition for discretionary review.
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GROUNDS FOR REVIEW
1. The Court of Appeals decision conflicts with the Texas Court of Criminal
Appeals opinion in Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App.
1998).
2. Abatement is authorized under T.R.A.P. Rule 43.6.
ARGUMENT
The Court of Appeals fails to explain how Rule 43.6 TRAP, and the Court of
Criminal Appeals statement in Oldham v. State, infra, is not authority to abate the
appeals under the specific facts of these cases.
The Court’s reliance on Jack v. State, 149 S.W.3d 119 (Tex. Crim. App.
2004) is misplaced.
The Jack v. State, trilogy, 42 S.W.3d 291 (Tex. App. – Houston [1st Dist.]
2001); 64 S.W.3d 694 (Tex. App. Houston [1st. Dist.] 2002) and 149 S.W.3d 119
(Tex. Crim. App. 2004) disavowed this abatement of an appeal to allow the
defendant the opportunity to rebut the rebuttable presumption that he was
effectively represented by trial counsel when defendant let the 30 day period
to file a motion for a new trial lapse without filing a motion.
The Court of Criminal Appeals in Jack v. State, supra, albeit in judicial
dictum, criticized the “double abatement” procedure used in Jacks I & II.
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The facts in this case are clearly distinguishable from the facts in Jack. Here
the Petitioner was represented by counsel, timely filed a motion for new trial and
was having a hearing on his motion for new trial.
The abatement sought in these cases is solely to obtain the testimony of trial
counsel, and is not a general trolling for evidence, and does not establish a new
appellate procedure.
Petitioner is relying on Rule 43.6 TRAP in seeking the abatement of these
cases.
The Texas Court of Criminal Appeals in Oldham v. State, 977 S.W.2d 354
(Tex. Crim. App. 1998) states at page 360:
“… We should not be understood as restricting a court of appeals power to
abate an appeal and remand a case under authority other than Rule 2(b). When
judicial resources can be conserved in the interest of justice, we encourage the
courts of appeals to adopt and continue to use methods for resolving issues sooner
rather than later as long as such methods are legally endorsed …” (Emphasis
Added). The current Rule 2 T.R.A.P. does not preempt abatement in this case
“to expedite a decision”.
The Court of Criminal Appeals in Oldham v. State, supra, at page 360 note 4
referenced an argument made in Tuffiash v. State, 878 S.W.2d 197, 201 n 2. (Tex.
App. - San Antonio 1994).
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The reference note argument is apropos to Petitioner’s motion to abate and states:
“2. If there is merit to Appellant’s contentions, hearing and granting a
motion for new trial at this point is certainly more efficient than requiring this
court of criminal appeals to consider an incomplete appeal, then requiring
appellant to seek post-conviction relief (which again taxes the resources of the
court of criminal appeals) to obtain a new trial many years from now. If there is no
merit to appellant’s contentetion, it is also most efficient to establish that fact now
and allow it to be raised on direct appeal following the denial of the motion for
new trial. We stress that we take this position only in cases where the failure to
raise the issue in a timely motion for new trial was not due to appellant’s lack of
diligence.”
Again Petitioner’s motions to abate are sought under the authority of TRAP
Rule 43.6 and not under Rule 2, although the current version of Rule 2 does not
preempt Petitioner’s request to abate.
Abatement of these appeals is within both the letter and spirit of the Oldham
mandate of “resolving issues sooner than later.”
The Texas Supreme Court has held with respect to the appellate rules in
Lone Star Gas v. Railroad Conm’n, 767 S.W.2d 709, 710 (Tex. 1989) (per
curiam):
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“… The rules do mandate full consideration of all issues raised to move the
case as far as possible toward final disposition…”
PRAYER FOR RELIEF
Wherefore, Petitioner prays that the Court abate these appeals and remand
these cases to the trial court and to direct the trial court to take whatever action it
deems necessary or appropriate to have former trial counsel, Jill Rekoff appear and
testify regarding Petitioner’s motion for new trial allegation of ineffective
assistance of counsel.
Respectfully submitted,
/s/ Connie B. Williams
Connie B. Williams
1314 Texas, Suite 710
Houston, Texas 77002
713-225-3700
713-225-3140-Fax
Cbw1710@hotmail.com
TBN 21521500
ATTORNEY FOR PETITIONER
CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4 (i) TRAP, I hereby certify that the foregoing
Petition for Discretionary Review contains 1262 words.
/s/ Connie B. Williams
Connie B. Williams
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CERTIFICATE OF SERVICE
This is to certify that on October 7, 2015, a true and correct copy of the
above and foregoing document was served on the District Attorney’s Office, Harris
County, Texas by facsimile transmission to 713-755-6865.
/s/ Connie B. Williams
Connie B. Williams
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APPENDIX
First Court of Appeals
Memorandum Opinion issued July 28, 2015
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