Carter, Brandon Jay ( 2015 )

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``:
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AGAINST THE PEACE AND DIGNITY OF THE STATE. -z~,,``/~;~
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DATE OF FILING VS
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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
/ /
/ /
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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
CterfcBfefifeteSBrt,ff9Jttten#386 U.S. 148 (1958).
3.02 Contempt has been defined as an act which is reasonably calculated to
unpede, embarrass, or obstruct the court in the lawful discharge ofits duties.
Exparte Soape, 341 S.W.2d 621 (Tex. 1961).
4. Range ofPunishment
4.01 The range ofpunishment for contempt is afine of not more than $500.00, or
confinement mthe county jail for aperiod of not more than six months, or
by both afine and aperiod of confinement.
5. AssignedJudge
,01 Pursuant to Section 21.002(d) of the Government Code, the Honorable Olen
Underwood, presiding judge of this admmistrative region, has appointed the
Honorable Michael Seller, to determine the guilt or innocence of the
Respondent.
Signed March 6, 2015. "
Hon. Lee Duggan,(
Judge Presiding by Assignment
240th District Court
Fort Bend County, Texas
SHOWCAUSE ORDER
IT IS HEREBY ORDERED that the Respondent, David Christopher Hesse,
appear before this Court at 10:00 a.m. on March 23, 2015, to show cause why he
should not be held in contempt ofcourt and punished accordingly.
NOTICE OF SHOW CA USE ORDER
IT IS FURTHER ORDERED that the Clerk of this Court shall cause a
NOTICE OF SHOW CAUSE ORDER to be served on Respondent in person on
March 9, 2015, upon his appearance at 10:30 ,m. in this Court as Respondent
swore he would when released on apersonal recognizance bail bond. Acopy of
this notice and order shall also be provided to the Honorable Olen Underwood,
Administrative Judge; the Honorable Michael Seller, Presiding Judge by
assignment; and the Honorable Thomas Culver, Presiding Judged me 240*
District Court.
Signed March
Hon. Michael Seller
Judge Presiding by Assignment
240th District Court
Fort Bend County, Texas
Exhibit 2
REPORTER'S RECORD
VOLUME 1 OF i VOLUMES
TRIAL COURT CAUSE NO. 12-DCR-61186
THE STATE OF TEXAS IN THE DISTRICT COURT
FORT BEND COUNTY, TEXAS
vs
240TH JUDICIAL DISTRICT
BRANDON JAY CARTER
9
10 EXCERPT OF BENCH CONFERENCE
11
12
13
On the 23rd day of February, 2015, the following
14
proceedings came on to be held in the above-titled and
15
numbered cause before the Honorable LEE DUGGAN, JR,
16
Presiding Judge, held in Richmond, Fort Bend County,
17 Texas .
18
Proceedings reported by computerized stenotype
19 machine.
20
21
22
23
24
25
APPEARANCES
1
2 AMANDA BOLIN
STUTI PATEL
3 DISTRICT ATTORNEY'S OFFICE
301 Jackson Street
4 Richmond, Texas 77469
Telephone: 281-341-4460
5
Attorney for The State of Texas
6
7 CHRIS HESSE
ATTORNEY AT LAW
8 1110 Front Street, Ste. C
Richmond, Tx 77469
9 Telephone: 281-984-0051
Counsel for Brandon Carter
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1 (Judge enters)
2 (Out of the presence of the jury)
3 THE COURT: Thank you, have a seat.
MR. HESSE: Your Honor, my we approach on
the record?
THE COURT: Approach.
MR. HESSE: Your Honor --
THE COURT: Do you want your defendant
here before we speak?
MR. HESSE: Yes, that would be great.
10
11
THE COURT: Counsel, may I have both of
12 you here for a bench conference?
3 MS. PATEL: Yes, Judge
MS. BOLIN: Yes, your Honor.
14
THE COURT: I don't want to talk to either
15
16 of you about evidence in the matter at this time but
17 simply scheduling and procedure
18
Are your witnesses here for those matters
19
that you propose to offer proof about?
MS. PATEL: Yes, your Honor.
20
21
THE COURT: Is your out of town witness
22 here
23
MR. HESSE: Your Honor, just before we hit
24 that just really quick.
25 THE COURT: I'm sorry?
MR. HESSE: Just before we talk about that, J
2 would like -- just prior to the court reporter coming into
3 the courtroom, you called us up to talk to us about the
4 case.
5 THE COURT: That's correct. I did.
6 MR. HESSE: And I demanded that everything
7 be put on the record.
THE COURT: And I don't want to hear some
9 authority from you on that the fact the Judge is not
10 entitled to have the cooperation of lawyers on non-trial
11 matters.
12 MR. HESSE: I demanded that everything
13 that's said between the attorneys and the Judge be put
14 on the record and at which point you advised me if I
15 persist in making that demand, you would hold me in
16 contempt.
17
THE COURT: I'm going to certainly
18
consider it because you've been an impediment to the
19 orderly flow of the case. You haven't been held in
20 contempt yet.
m_r. HESSE: That's what — urn — what you
22 told me is you would - if I persist in that course of
23 action insisting that this be put on the record that you
24 would hold me in contempt. And so, sir, now — if you
25 would allow me to speak - now that I'm afraid of being
1 held in contempt
2 THE COURT: Be careful. We are startinc
3 even
4 MR. HESSE: Now that I'm afraid of being
5 held in contempt, I ask for'a continuance and I ask for
6 a mistrial and I ask to be removed from this case
7 because my interest are adverse to my client's at this
very moment.
9
THE COURT: Tell me how your interests are
10 adverse to your client?9
11
MR. HESSE: I can't defend my client when
12 I'm afraid of being held in contempt
13
THE COURT: As I say, you have noL been
14 and although I've been told orally about matters that I
15 didn't hear that have been said that you said so you are
16 treading close. But it 's a clean slate and a brand new
17 week. So your motion is for —
IQ MR. HESSE: For a continuance, for a
19 mistrial and that I be withdrawn as the attorney of
20 record
2\ THE COURT: Each of your motions is
22 overruled.
23
2 4
25
1 STATE OF TEXAS
2 COUNTY OF FORT BEND
3
I, Liz Wittu, Official Court Reporter in and for the
5 240TH District Court of Fort Bend, State of Texas, do
6 hereby certify that the above and foregoing contains a
7 true and correct transcription of all portions of
evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me
13 j further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
15 if any, offered by the respective parties
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $ and
18 was paid/will be paid by •
19
/S/ Liz Wittu
20
Liz Wittu, CSR
21 Texas CSR 7928
Official Court Reporter
22
240TH District Court
Fort Bend County, Texas
23 301 Jackson
Houston, Texas 77469
24 Telephone: 281-341-8601
Expiration: 12/31/2015
25
Exhibit 3
1 'P
February 24 & 25, 2015
REPORTER'S RECORD
1
VOLUME 1 OF 1 VOLUMES
2
TRIAL COURT CAUSE NO. 12-DCR-61186
3
THE STATE OF TEXAS ) IN THE DISTRICT COURT •-
) FORT BEND COUNTY, TEXAS
4 vs .
5
BRANDON JAY CARTER ) 240TH JUDICIAL DISTRICT
6
7
EXCERPT OF TESTIMONY
9
10
11
12
On the 24th & 25th day of February, 2015, the
13
following proceedings came on to be held in the
14
above-titled and numbered cause before the Honorable» LEE
15
DUGGAN, JR, Presiding Judge, held in Richmond, Fort Bend
16 County, Texas.
17
Proceedings reported by computerized stenotype
18 machine.
19
20
21
22
23
24
25
L
February 24 & 25, 2015
1 APPEARANCES
2 AMANDA BOLIN
STUTI PATEL
3 DISTRICT ATTORNEY'S OFFICE
301 Jackson Street
4 Richmond, Texas 77469
Telephone: 281-341-4460
^j
Attorney for The State of Texas
6
1 CHRIS HESSE
ATTORNEY AT LAW
8 1110 Front Street, Ste. C
Richmond, Tx 77469
9 Telephone: 281-984-0051
Counsel for Brandon Carter
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Tommy Thompson - February 24, 2-015 57
Cross-Examination by Mr. Hesse
1 rule on the objections, that's it. I don't want to
2 argue about it. That's contempt. I'm trying to stay
3 away from contempt. I would like to finish this case.'
4 How long, additionally, do you think it's
5 going to be before you're finished this evening?
6 MR. HESSE: Sir, are you threatening me
7 with contempt?
8 THE COURT: Sir?
9 MR. HESSE: Are you threatening me with
10 contempt?
H THE COURT: No, sir, I'm telling you that
12 your conduct borders on it. But I've overlooked a lot,
13 and I intend to continue to try to overlook a lot.
14 MR. HESSE: If my conduct borders on
15 contempt, I ask for a continuance. I ask for a
16 mistrial. I ask that I be withdrawn as attorney of
17 record, and I ask that the issue of my contempt be --
ig THE COURT: We've been over all this
19 before.
20 MR. HESSE: The issue of my contempt be --
2i THE COURT: And do not try to talk over
22 me. She only takes my voice when the two of us are
23 being heard.
24 MR. HESSE: That's very unfortunate, sir.
25 THE COURT: Sir?
Detective Tommy Thompson - February 25, 2015 119
Recross-Examination by Mr. Hesse
1 STATE OF TEXAS
2 COUNTY OF FORT BEND
3
4 I, Liz Wittu, Official Court Reporter in and for the
5 240TH District Court of Fort Bend, State of Texas, do
6 hereby certify that the above and foregoing contains a
7 true and correct transcription of all portions of
8 evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
15 if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $ and
18 was paid/will be paid by ______•
19
/S/ Liz Wittu
20
Liz Wittu, CSR
21 Texas CSR 7928
Official Court Reporter
22 240TH District Court
Fort Bend County, Texas
23 301 Jackson
Houston, Texas 77469
24 Telephone: 281-341-8601
Expiration: 12/31/2015
25
Exhibit 4
THE STATE OF TEXAS
COUNTY OF FORT BEND
AFFIDAVIT OF RAQUEL LEVY
BEFORE ME, the undersigned authority, on this day personally appeared
Raquel Levy, who swore or affirmed to tell truth, and stated as follows:
"My name is Raquel Levy. I am over the age of eighteen years and have
personal knowledge ofthe facts stated herein, which are true and correct.
I am currently employed as the Indigent Defense Coordinator,
Administrative Court Services, Fort Bend County. I have been so employed since
the year of 2007.
As part of my duties, I maintain the Misdemeanor and Felony Lists of
attorneys qualified for appointment to criminal cases. On February 12, 2015, Mr.
Hesse asked me to remove him from all appointment lists because he is moving to
Amarillo in May 2015. I notified the judges ofMr. Hesse's request on March 3,
2015."
0
Rajquel Levy f
SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority
on March 12, 2015, by Raquel Levy.
Notary Public in and for the State of
Texas
My commission expires:
APPENDIX 7
Opinion issued May 7, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00216-CR
NO. 01-15-00217-CR
———————————
IN RE BRANDON JAY CARTER, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Brandon Jay Carter, has filed a petition for (1) a writ of mandamus
challenging an order substituting his appointed trial counsel, and (2) a writ of
prohibition preventing the trial court from holding hearings or proceeding to trial
in the underlying case.1 We deny the petition.
1
The underlying case is State of Texas v. Brandon Jay Carter, cause number 12-
DCR-061186, pending in the 240th District Court of Fort Bend County, Texas, the
Honorable Thomas R. Culver, III presiding.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
2
APPENDIX 8
UNSWORN DECLARATION OF D. CHRIS HESSE
Under 28 U.S.C. § 1746 and Texas Civil Practice and Remedies Code §
132.001 et seq., I declare under penalties of perjury that my name is David
Christopher Hesse. I am also known as D. Chris Hesse. I am over the age of 18
years, and am competent to make this declaration. My date of birth is April
30, 1973. My address is 112 West 8th Avenue, Suite 301 Amarillo, Texas 79101.
This document is not a lien required to be filed with a county clerk, an
instrument concerning real or personal property required to be filed with a
county clerk, or an oath of office or an oath required to be taken before a
specified official other than a notary public. I have not been forced to sign this
declaration. I declare that under the penalties of perjury that all assertions
provided in this document are correct and true.
The documents that are attached to the Petition for Writ of Mandamus
are true and correct copies of the original documents which are to be found
among the papers of Cause No. 12-DCR-061186 in the Office of the District
Clerk of Fort Bend County, Texas, or among the papers in Docket No. 01-15-
00216-CR and Docket No. 01-15-00217-CR in the First Court of Appeals in
Houston, Texas. I did not find out about the order removing me as the
attorney for Relator until I received a phone call from Harris Wood, Jr., on
March 4, 2015. There was no hearing held before the original or the amended
order was signed by Judge Culver.
Signed on May 11, 2015.
/s/ David Christopher Hesse
David Christopher Hesse