The opinion
ACCEPTED
03-13-00760-CR
3718822
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/9/2015 3:56:06 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00760-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
________________________________________
1/9/2015 3:56:06 PM
JEFFREY D. KYLE
JAMES BROWN, Clerk
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
________________________________________
THE STATE’S MOTION TO ABATE APPEAL
AND
MOTION FOR APPELLANT’S MOTION TO BE HELD IN
ABEYANCE
TO THE HONORABLE JUSTICES OF THE COURT OF 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 holding in abeyance the pending motion of the appellant styled 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 (herein referred to as
“the appellant’s motion”).
In support of the instant motion, the State asserts as follows:
1. Procedural background
On May 29, 2013, a Travis County grand jury filed an indictment
charging the appellant with three counts of the felony offense of obstruction
or retaliation. CR 19. One of the victims named in the indictment was
employed, at the time of the offense, as a Travis County Assistant District
Attorney and continues to be so employed.
On April 5, 2013, the Travis County District Attorney appointed
attorney Corby Holcomb to serve as Special Assistant District Attorney for
the purpose of representing the State in the case styled State of Texas v.
James A. Brown, Cause Number D1DC13-300630. CR 10. For the Court’s
convenience, a copy of the document reflecting that appointment is attached
hereto.
On October 23, 2013, a bench trial was held in the 331st District
Court. The trial court (the Honorable David Crain presiding) found the
appellant guilty of all three counts and, on each count, assessed the
appellant’s punishment at confinement for a term of 15 years in the
Institutional Division of the Texas Department of Criminal Justice. CR 51-
58.
The appellant’s motions for new trial were filed on October 31 and
November 1, 2013. CR 59-66. Notice of appeal was filed on November 8,
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2013, and on January 30, 2014. CR 83, 107. The trial court certified that
the appellant has the right of appeal. CR 84.
On December 29, 2014, the appellant filed 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 (herein referred to as
“the appellant’s motion”).
2. This appeal should be abated
In light of the fact that one of the appellant’s victims is currently
employed as an Assistant District Attorney, and the fact that a special
prosecutor was appointed to represent the State in the proceedings occurring
in the 331st District Court, the State of Texas asserts that it would be
appropriate for the State to be represented by a special prosecutor in relation
to the instant appellate proceedings.
Abatement of this appeal is warranted because it is presently unclear
whether the State be represented during the instant appellate proceedings by
Special Assistant District Attorney Holcomb or, alternatively, by a different
special prosecutor. It appears that Mr. Holcomb has not been served with
appellant’s motion or with the appellant’s brief. The State respectfully
requests that the appeal be abated for a period of time reasonably sufficient
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to enable the State to secure the services of a special prosecutor, whether it
be Mr. Holcomb or a different individual.
3. The appellant’s motion should be held in abeyance
Because the special prosecutor who will represent the State in the
proceeding has been firmly identified and has not been served with the
appellant’s motion, the State requests that, as part of the above-requested
abatement, the appellant’s motion be held in abeyance. Further, the State
requests that the special prosecutor be afforded an adequate opportunity to
respond to the appellant’s motion after these proceedings are reinstituted and
after that individual receives service of the appellant’s motion.
PRAYER
Wherefore, the State requests that this Court abate the instant appeal
and hold the appellant’s motion in abeyance.
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Respectfully submitted,
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
/s/ M. Scott Taliaferro
M. Scott Taliaferro
Assistant District Attorney
Director, Appellate Division
State Bar No. 00785584
P.O. Box 1748
Austin, Texas 78767
Phone No. (512) 854-3626
Fax. No. (512) 854-4810
Scott.Taliaferro@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 motion, that this
motion contains 636 words, excluding words contained in those parts of the
brief that Rule 9.4(i) exempts from inclusion in the word count.
/s/ M. Scott Taliaferro
M. Scott Taliaferro
Assistant District Attorney
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CERTIFICATE OF SERVICE
I hereby certify that, on this 9th day of January, 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 attorney for the
appellant:
Tanisa Jeffers, Esq.
Brian Bernard, Esq.
Bernard & Associates
1203 Baylor Street
Austin, TX 78703
Fax: 512.478.9827
Email: tanisaL@hotmail.com
attorneybernard@yahoo.com
/s/ M. Scott Taliaferro
M. Scott Taliaferro
Assistant District Attorney
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