Daniel, Brandon ( 2015 )

AP-77,034
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/15/2015 4:28:17 PM
April 15, 2015 Accepted 4/15/2015 4:31:44 PM
ABEL ACOSTA
NO. AP-77,034 CLERK
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
________________________________________
BRANDON DANIEL,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
________________________________________
THE STATE’S MOTION TO ABATE APPEAL
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
The State of Texas, by and through the District Attorney for Travis
County, respectfully moves this Court for its order abating the instant appeal
and remanding this cause to the trial court for a hearing on appellant’s desire
to dismiss his counsel, proceed pro se, and waive all appeals
In support of the instant motion, the State asserts as follows:
1. Procedural Background and Relevant Facts
The State charged appellant by indictment with the capital murder of
Austin Police Officer Jaime Padron committed on April 6, 2012. (CR 100,
118-119). A jury found appellant guilty of capital murder (CR 184), and
pursuant to the jury’s answers to the special issues at punishment, the trial
court sentenced appellant to death on February 28, 2014. (CR 189-190; RR
26: 221). Appellant timely filed a motion for new trial, which was overruled
by operation of law, and notice of appeal. (CR 196, 197). The trial court
appointed attorney Ariel Payan to represent appellant on direct appeal
pursuant to appellant’s desire to be represented by counsel. (CR 205; RR
26: 219).
On the same day of sentencing, the trial judge found the appellant to be
indigent and that the appellant desired to have counsel appointed for the
purpose of a writ of habeas corpus pursuant to Art. 11.071, V.A.C.C.P.. (CR
192; RR 26: 220). The trial judge therefore entered an order appointing the
Office of Capital Writs and Director Brad Levenson as counsel to investigate
the case, file the appropriate writ, and fully represent appellant. (CR 192).
On January 16, 2015, Payan timely filed a brief on direct appeal on
appellant’s behalf. The State’s brief on direct appeal is currently due on
April 20, 2015, but the State anticipates requesting additional time in which
to complete its responsive brief.
2. This Appeal Should Be Abated
On March 4, 2015, appellant filed a letter with the District Clerk’s Office
of Travis County. See Exhibit A, certified copy of appellant’s letter,
attached to this motion. In the letter directed to the judge of the convicting
2
court, appellant expresses his desire to dismiss his direct appeal attorney,
Ariel Payan, dismiss the brief Payan filed on his behalf, proceed pro se, and
waive all appeals. Appellant also indicates his desire to dismiss the Office
of Capital Writs and Brad Levenson on habeas review, proceed pro se, and
waive habeas review.1
Appellate review of a death sentence is automatic and cannot be waived.
Art. 37.071(h), V.A.C.C.P. Thus, an appellant must either be represented by
counsel on direct appeal or he must proceed pro se. The State submits that
this Court should abate this appeal and remand this case to the trial court for
a hearing to determine whether (1) the appellant understands that he cannot
waive his right to direct appeal, (2) the appellant really desires to dismiss
Payan and proceed pro se, (3) the appellant has been advised of the dangers
and disadvantages of self-representation if he chooses to represent himself
on direct appeal, see e.g., Burgess v. State, 816 S.W.2d 424 (Tex.Crim.App.
1991), and (4) the appellant is competent to make these decisions, see Rees
v. Peyton, 384 U.S. 312 (1966).
On the other hand, the law does not require the filing of an application
for writ of habeas corpus, and an applicant may waive his right to habeas
1
Additionally, in a letter dated March 26, 2015, and addressed to Travis County District
Attorney Rosemary Lehmberg, appellant expressed his desire to waive his appeals and
sought the District Attorney’s help “to expedite the situation.”
3
review. Ex parte Reynoso, 257 S.W.3d 715 (Tex.Crim.App. 2008). Since
the trial court appointed counsel to present appellant on habeas review and
the appellant now expresses his desire to dismiss counsel and waive habeas
review, the State submits that abatement and remand are necessary for the
trial court to additionally determine whether the appellant wishes to file an
application for writ of habeas corpus and, if he does not, whether he has
made this decision knowingly and voluntarily. See Reynoso, AP-74,952,
Order dated September 15, 2004. If the appellant does wish to pursue
habeas review, the trial court should determine whether appellant wishes to
dismiss his appointed counsel and proceed pro se and, if he does, whether he
has made this decision knowingly and voluntarily.
4
PRAYER
Wherefore, the State requests that this Court abate the instant appeal
and remand this cause to the trial court for a hearing on appellant’s desire to
proceed pro se and waive all appeals.
Respectfully submitted,
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
Director, Appellate Division
State Bar No. 06022700
P.O. Box 1748
Austin, Texas 78767
Phone No. (512) 854-3626
Fax. No. (512) 854-4810
Lisa.Stewart@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,
based on the computer program used to generate this document, that this
document contains 758 words, excluding words contained in those parts of
the document that Rule 9.4(i) exempts from inclusion in the word count.
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
5
CERTIFICATE OF SERVICE
I hereby certify that, on this 15th day of April, 2015, a copy of the
foregoing motion was sent, via U.S. mail, email, facsimile, or electronically
through the electronic filing manager, to the following attorneys for the
appellant:
Ariel Payan
1012 Rio Grande
Austin, Texas 78701
Fax: 512-472-4102
ArielPayan@hotmail.com
Brad Levenson
Office of Capital Writs
Stephen F. Austin Building
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
Fax: 512-463-8590
Brad.Levenson@OCW.Texas.gov
Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Lisa.McMinn@spa.texas.gov
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
6
EXHIBIT A
7