eliminating the separate factual sufficiency review
How later courts described this case
- eliminating the separate factual sufficiency review
Written by the judges who cited it.
The opinion
ACCEPTED
03-13-00760-CR
4406706
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 3:50:50 PM
No. 03-13-00760-CR JEFFREY D. KYLE
CLERK
In the Third Court of Appeals FILED IN
Austin, Texas 3rd COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 3:50:50 PM
JEFFREY D. KYLE
Clerk
JAMES A. BROWN,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the 331 st Judicial District,
of Travis County, Texas
Trial Cause No. D1-DC-13-300630
The Honorable David Crain, Presiding Judge
STATE'S BRIEF
ROSEMARY LEHMBERG
TRAVIS COUNTY DISTRICT ATTORNEY
WILLIAM G. SWAIM Ill
SPECIAL ASSISTANT DISTRICT ATTORNEY
State Bar Number 00785074
Post Office Box 1748
Austin, Texas 78767
Telephone: (512) 854-9415
Bill. Swaim@traviscountytx.gov
March 6, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT Is NoT REQUESTED
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
INDEX OF AUTHORITIES ..................................................................................... ii
STATEMENT OF THE CASE .................................................................................. 1
ISSUES PRESENTED ............................................................................................... 3
STATEMENT OF FACTS ........................................................................................ 4
SUMMARY OF THE STATE'S ARGUMENT ....................................................... 6
ARGUMENT
Reply Point 1: The evidence of Brown's intent to harm by unlawful acts
is legally sufficient to sustain the judgment of conviction
for retaliation. .................................................................................. 8
Reply Point 2: A timely motion to quash was never presented to the court
for a ruling, therefore this issue is not preserved for appeal. .. .. .. .. 14
Reply Point 3: Appellant fails to discharge his burden of production in support
of his claims of ineffective assistance of counsel. .......................... 16
PRAYER ................................................................................................................. 25
CERTIFICATE OF COMPLIANCE ...................................................................... 26
CERTIFICATE OF SERVICE ............................................................................... 26
IDENTITY OF PARTIES AND COUNSEL
Appellants: JAMES ARTHUR BROWN
Appellants' Counsel:
Brian Y. Bernard
Tanisa Jeffers
Bernard & Associates
1203 Baylor St.
Austin, Texas 78703
(512) 478-5291
(512) 478-9827 Facsimile
attomeybernard({_ijyahoo.com
tanisaL(a)hotmail.com
-...., ___./
Appellee: TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE
Appellee's Counsel:
William G. Swaim III
Special Assistant District Attorney
P.O. Box 1748
Austin, Texas 78701
(512) 854-9415
(512) 854-9436 Facsimile
Bill.Swaim(0traviscountytx.gov
i
INDEX OF AUTHORITIES
Statutes Page
TEX. CRIM. PROC. CODE ANN. ART. 1.14
(West Supp. 2014) ...................................................................................... 14
Rules
TEX. R. APP. P. 33.1 ................................................................................................. 14
TEX. R. APP. P. 38.l(i) ..................................................................................... 16, 22
Cases
Bodeker v. State, 629 S.W.2d 65
(Tex. Crim. App. 1981) ................................................................................ 11
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 201 0) ................................................................................. 8
Cooks v. State, 240 S.W.2d 906
(Tex. Crim. App.-2007) ........................................................................... 23
Coward v. State, 931 S.W.2d 386
(Tex. App.-Houston [14th Dist.] 1996, no pet.) ....................................... 10
Davis v. State, 890 S.W.2d 489
(Tex. App. -Eastland 1994, no pet.) ......................................................... 10
Garcia v. State, 57 S.W.3d 436
(Tex. Crim. App. 2001) .............................................................................. 19
Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007) .............................................................................. 12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979) .................................................................... 8, 12, 13
Jarrell v. State, 537 S.W.2d 255
(Tex. Crim. App. 1976) ................................................................................. 9
In re B.M, 1 S. W.3d 204
(Tex. App.-Tyler 1999, no pet.) ............................................................... 10
Lawson v. State, 775 S.W.2d 495
(Tex. App. -Austin 1989, pet. ref d) ........................................................ 11
Manemann v. State, 878 S.W.2d 334
(Tex. App. -Austin 1994, pet. refd) .................................................. 10, 11
Moreno v. State, 755 S.W.2d 866
(Tex. Crim. App. 1988) .............................................................................. 13
ii
Strickland, 466 U.S. 668, 104 S. CT. 2052,
80 L. Ed. 2d 674 (1984) ........................................................................ 19,21
Thompson v. State, 9 S. W.3d 808
(Tex. Crim. App. 1999) .............................................................................. 19
United States v. Orozco-Santillan, 903 F .2d 1262
(9th Cir. 1990) ............................................................................................. 11
Wayslina v. State, 275 S.W3d 908
(Tex. Crim. App. 2009) .............................................................................. 11
Wilson v. State, 398 S.W.2d 291
(Tex. Crim. App. 1965) .............................................................................. 15
iii
STATEMENT OF THE CASE
Brown was charged by indictment with three counts of retaliation against a
public servant, third degree felonies. CR 19-20. The indictment further alleged
four previous felony convictions potentially enhancing the initial charges to second
degree felonies. !d. On October 23, 2013, following a bench trial, the court
found him guilty on all three counts of the indictment. CR 48, 52-55, 57-58.
The court further found the enhancement paragraphs true. !d. That same day,
the court assessed punishment and sentenced Brown to fifteen years in the Texas
Department of Criminal Justice. !d.
Defense counsel filed a motion for new trial on October 31, 2013. CR
59-60. The next day, Brown filed a pro se motion for new trial. CR 61-67.
Brown filed a pro se notice of appeal and "Motion to Appeal" on November 8,
2013. CR 71-76, 83.
No further court proceedings occurred, although, on December 16, 2013, the
trial court issued a bench warrant for Brown's return from the Texas Department of
Criminal Justice for a hearing January 8, 2014. CR 100. The court appointed
counsel for Brown on January 7, 2014. CR 103. The trial court, in a letter dated
December 22, 2014 and appended to Appellant's brief, explained the purpose of
Brown's return to court:
1
Appellant filed a Motion for New Trial on October 21, 2013.
Trial counsel filed a Motion for New Trial on November 1, 2013.
Brown was set to come back to court on January 14, 2014. Brown
refused to enter the courtroom. Thereafter, the Motion for New Trial
expired by operation of law.
The court fully intended to reduce the sentence significantly but
Brown refused to participate.
Brief for Appellant at 50.
2
ISSUES PRESENTED
Issue One
Whether the trial court's inferences from the testimony and evidence in
finding Brown intentionally threatened unlawful acts are legally sufficient to
uphold the conviction for retaliation?
Issue Two
Whether the issue of Brown's prose and oral motions to quash is even
preserved, as no ruling was ever sought from the court?
Issue Three
Whether Appellant has even presented for consideration his multiple claims
of ineffective assistance of counsel, where he has not satisfied his burden of
production under Strickland v. Washington or the Texas Rules of Appellate
Procedure?
3
STATEMENT OF THE FACTS
On March 28, 2013, James Arthur Brown was at the Travis County civil
courthouse for a jury trial on the termination of his parental rights. 2 RR 53.
Assistant Travis County District Attorney Jannice Joseph represented the State and
CPS social worker Sara Laney, and the child's ad litem attorney, Cynthia Dyar,
were involved the case. 2 RR 10, 37, 52. A jury returned a verdict terminating
Brown's parental rights. 2 RR 53, 56. As the judge was addressing Brown, "he
got angry and stormed out of the court." 2 RR 56. Immediately following the
hearing, Joseph, Laney, and Dyar, the three complaining witnesses, encountered
Brown outside the courtroom in the hallway by the elevators. 2 RR 17, 38, 61.
Looking directly at them, he began screaming threats. 2 RR 22, 31, 39, 50, 61.
Each stated that Brown's threats were repetitions and "slight variations" of "I will
get you," "I know where you live," and, "Whatever happens, I don't care if I get the
electric chair." 2 RR 39, 112. All three workers testified that they were afraid
or felt they needed to be concerned for their safety. 2 RR 23, 40, 62.
Brown was arrested and later indicted for three counts of obstruction or
retaliation against a public servant enhanced to a second degree felony allegation
so prior felony convictions. CR 19. 20. Following a bench trial on October 23,
2013, Brown was found guilty of all three counts of retaliation. CR 48; 2 RR
4
112. The court also found true the enhancement allegations. !d. Immediately
following, Brown, on his own motion, requested the court to quash the indictment.
2 RR 112-13. The judge explained that his motion was not timely whereupon
Brown accused the judge of racism and was removed from the courtroom. 2 RR
113. The judge proceeded to sentencing with the defendant absent, referring on
the record to Brown "yelling and screaming very violently" in his holding cell. 2
RR 116, 123. The court sentenced Brown to fifteen years in prison on each
count.
Brown, on his own, filed a motion for new trial on October 31, 2013, and
trial counsel filed a motion for new trial on November 1, 2013. CR 59, 61. No
further court proceedings occurred although the Brown was returned on a bench
warrant for hearing date listed as January 8, 2014. On January 14, 2014, Brown
refused to enter the courtroom for the scheduled hearing, and his motion for new
trial expired by operation of law. Brief for Appellant at 50.
5
SUMMARY OF THE STATE'S ARGUMENT
Reply Point One
The evidence of Brown's intent to harm by unlawful acts is legally
sufficient to sustain the judgment of conviction for retaliation. The
evidence in the record quickly narrows this legal analysis to Brown's intent
to threaten and the unlawful acts alleged in the indictment. The trial court
found that the State's evidence and the inferences derived therefrom proved
the offense of murder and a wide range of possible criminal activity
including aggravated assault and assault as alleged in the indictment, which
are lesser included offenses of murder.
Reply Point Two
A timely motion to quash was never presented to the court for a ruling,
therefore this issue is not preserved for appeal. Brown filed two pro se motions
to quash and presented an untimely, oral, prose motion to quash after trial. With
no ruling ever made on these motions, nothing is preserved for appeal here.
Appellant apparently presents this issue to give voice to Brown's mistaken belief
that merely filing his writings triggers relief.
6
Reply Point Three
Appellant fails to discharge his burden of production in support of any of his
claims of ineffective assistance of counsel. The multiple claims in this point of
error are presented without support from the record and fall short of the first prong
of the Strickland v. Washington analysis, Appellant's burden of production
demonstrating deficient performance by trial counsel. These claims further run
afoul ofTex. R. App. P. 38.l(i), requiring support from the record.
7
ARGUMENT
Reply Point One
The evidence of Brown's intent to harm by unlawful acts is legally
sufficient to sustain the judgment of conviction for retaliation.
The Court of Criminal Appeals held that "the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court should apply
in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt."
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)(eliminating the
separate factual sufficiency review). Under this standard a reviewing court "is
required to defer" to the fact-finder's credibility and weight determinations. !d. at
894 (citing Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979)).
In the instant case, Judge David Crain articulated that all three of the State's
complaining witnesses were credible when finding Brown guilty on the three
counts of the indictment. 2 RR 112. Each complainant explained her role in
Brown's custody termination hearing the day of the offense, March 28, 2013:
Janice Joseph, Assistant District Attorney as trial counsel; Cynthia Dyar, ad litem
attorney for the child in the suit; and Sarah Laney, caseworker for Child Protective
8
Services. 2 RR 14, 35, 52-53. Brown testified at the trial and stated there that he
knew that all three were public servants, and that they worked together to terminate
his parental rights. 2 RR 103. All three complaining witnesses testified that
immediately following the hearing they encountered Brown outside the courtroom
by the elevators in the hallway. 2 RR 17, 38, 61. Brown looked directly at them
while he was screaming threats. 2 RR 22, 31, 39, 50, 61. Each stated that the
threats were repetitions and "slight variations" of "I will get you," "I know where
you live," and, "Whatever happens, I don't care if I get the electric chair." 2 RR
39, 112. Even with their experience in and perspective of child custody
proceedings, all three victims testified that they were afraid or felt they needed to
be concerned for their safety. 2 RR 23, 40, 62. Sarah Laney testified that to her
the phrase "electric chair" implied the offense of "murder". 2 RR 50. This
testimony, found credible by the trial court, amply factually supports the
indictment's allegation of intentional threats to the three women on account of
their service as public servants.
It is the intent to threaten that is key to this type of criminal offense, not the
intent to carry out the threat. Jarrell v. State, 537 S.W.2d 255, 257 (Tex. Crim.
App. 1976). "[T]he statute does not require that the threatened retaliatory harm
be imminent, nor does it require that the actor actually intend to carry out his
9
threat." In re B.M, 1 S.W.3d 204, 207 (Tex. App.-Tyler 1999, no pet.); Coward
v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston [14th Dist.] 1996, no pet.);
Davis v. State, 890 S.W.2d 489, 492 (Tex. App.-Eastland 1994, no pet.).
Regardless of any testimony that he would not or did not intend to harm the
victims, Brown's statements would still constitute threats under the statute.
The trial court's verdict and interpretation of the evidence as establishing
Brown's intent to threaten is specifically supported by the context in which the
threats were made. The Third Court in 1994 observed in a case involving a phone
call threatening bodily injury, "The meaning of statements can only be interpreted
by considering the context in which they are made." Manemann v. State, 878
S.W.2d 334, 338 (Tex. App.-Austin 1994, pet. ref'd). In the instant case,
Brown's remarks are made repeatedly, immediately outside the courtroom where
his parental rights had just been terminated, while directly looking at three people
involved in bringing about that result, within minutes of the court's decision, while
pacing agitatedly and with his mother trying to pull him away into an elevator.
Brown's statements in themselves satisfy the elements of the offense
"threaten to harm by an unlawful act". A particular statement may be considered
a threat under an objective standard where a reasonable person to whom the
statement is communicated interprets the statement as a serious expression of
10
intent to harm or assault. Manemann, 878 S.W.2d at 337 (citing United States v.
Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)). The three women who
were the object of Brown's threats all testified that they are experienced in such
hearings where people are understandably upset, but that Brown's actions were
distinctly threatening.
The trial court correctly interpreted Brown's threats as embracing the
unlawful acts of aggravated assault or assault alleged in the indictment.
Aggravated assault is a lesser included offense of murder. Lawson v. State, 775
S.W.2d 495, 499 (Tex. App.-Austin 1989, pet. ref'd). Assault is a lesser
included offense of aggravated assault. One of the State's complaining witnesses
testified that to her the phrase "electric chair" implied the offense of "murder".
Where the State's evidence proves the greater offense, it necessarily proves any
lesser included offenses. Wayslina v. State, 275 S.W3d 908, 910 (Tex. Crim.
App. 2009); Bodeker v. State, 629 S.W.2d 65, 66-7 (Tex. Crim. App. 1981).
While only the crime of "murder" was mentioned as an interpretation of Brown's
comment "I know where you live, and I'll get the electric chair for what I do", as
Judge Crain noted, "by implication, if something severe enough would be
assaultive behavior, severe enough to get the electric chair would also include the
lesser-included offenses of aggravated assault or assault." 2 RR 50, 112. The
11
judge further observed, "I think his statements implied a whole range of possible
criminal activity, anywhere from assault up to a murder, and also including
aggravated assault." 2 RR 73.
Appellant asserts that the video evidence introduced by the State at his trial
IS insufficient to sustain the conviction. The video evidence from security
cameras in the courthouse hallways admittedly does not fully capture the offense.
There is no sound and Brown appears on the edge of the video walking in and out
of view. 3 RR State's Exh. #4. Given this context, the video evidence does not
contradict the verdict, which is principally and easily supported by the testimony of
the witnesses alone. In fact, the only statement conflicting with the video
evidence is Brown's assertion, "That's not even the real video. My back was to
them. They lying." 2 RR 74.
"The reviewing court must give deference to 'the responsibility of the trier
of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts."' Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,
318-9, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Even if there were
inconsistencies in the evidence, "Such a verdict must stand unless it is found to be
irrational or unsupported by more than a 'mere modicum' of the evidence, with
12
such evidence being viewed under the Jackson light. Concrete application of the
Jackson standard is made by resolving inconsistencies in the testimony in favor of
the verdict." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
"[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 ( 1979). The credible
testimony of the State's witnesses and the reasonable inferences drawn from it by
the trial court ensure this conviction is legally sufficient.
13
Reply Point Two
A timely motion to quash was never presented to the court for a
ruling, therefore this issue is not preserved for appeal.
In order to preserve for appeal a complaint about a court's ruling on a
motion, the record must show that the motion was presented to the trial court, and
that the trial court ruled on it, or refused to rule on it, whereupon the movant
objected. TEX. R. APP. P. 33.1. Where a defendant fails to object to a defect in a
charging instrument before the date trial begins, "he waives and forfeits the right to
object to the defect, error, or irregularity and he may not raise the objection on
appeal or in any other post-conviction proceeding." TEX. CRIM. PROC. CODE
ANN. ART. 1.14 (West Supp. 2014).
While Brown, on his own, filed two motions to quash, they were apparently
never ruled on by the trial court. CR 35, 42. Without any support from the
record, Appellant states, "A trial before the court was commenced on October 23,
2013. The court overruled all pretrial motions at that time." Brief for Appellant
at 14. The one motion to quash that does appear on the record was made by
Brown after the trial was over, to which the Judge responded, "I believe your
motion is not timely after the trial has occurred." 2 RR 113; TEX. CRIM. PROC.
14
CODE ANN. ART. 1.14 (West Supp. 2014). In Wilson v. State, the Court of
Criminal Appeals addressed this issue directly.
"He complains of the overruling of four motions to quash the
indictment. None of these is shown to have been presented to the
trial judge for his ruling. In the absence of a bill of exception, formal
or informal, appellant's attack upon the indictment must be considered
as though no motion to quash or exception to the indictment was
filed."
Wilson v. State, 398 S.W.2d 291, 292 (Tex. Crim. App. 1965).
It appears that Brown assumed that merely filing a motion on his own was
the equivalent of a proper legal objection as evidenced in his "Memorandum of
Law," where he states, "The court erred, when upon notice by motion to quash
indictment 'Sep. 04, 2013 and Oct. 09, 2013,' did not correct errors in the
indictment for a fair and impartial trial." CR 81. As neither of his written
motions nor his oral motion at trial were timely presented or ruled upon on the
record, this issue is not preserved for appeal and should be overruled.
15
Reply Point Three
Appellant fails to discharge his burden of production in support of his
claims of ineffective assistance of counsel.
Appellant's initial presentation of this point of error appears to contend that
ineffective assistance of counsel may be found in trial counsel's failure to
withdraw and in that no hearing was held on Appellant's motion for new trial
within seventy-five days. Within the argument, Appellant lists three additional
grounds to support the claim: (1) trial counsel did not file any pretrial motions, (2)
trial counsel did not call a key witness, and (3) trial counsel did not subpoena the
individual responsible for the State's video evidence. A further claim is added
alleging Brown was unrepresented during the thirty-day period in which to file a
motion for new trial. Appellant provides insufficient factual support for these
claims and, respectfully, this point of error should be overruled. TEX. R. APP. P.
38.1(i).
The State will initially respond to the three additional grounds all listed in a
single paragraph of Appellant's brief. Brief of Appellant at 44. These three
claims appear to be drawn from Brown's mostly hand-written motions. The
claims and their sources are as follows:
16
1. His counsel did not file pre-trial motions,
CR 73 (Mot. to Appeal, sec. IV; CR 65 (Mot. for New Trial, sec. XII)
2. His counsel did not call as a witness Valerie Brown, Appellant's
mother, and
CR 73 (Mot. to Appeal, sec. IV)
3. His counsel did not call "video surveillance personnel"
CR 73 (Mot. to Appeal, sec. IV).
Brown's trial counsel did file pre-trial motions including a motion for
discovery, a motion for psychiatric exam, and a request for appointment and
funding of an investigator. CR 27, 40, 85-92. Appellant's brief is silent on
what, if any, motions, should have been filed or as to what purpose. Therefore it
is impossible to reach a conclusion that failure to file or litigate pre-trial motions
was representation so deficient as to deprive Brown of a fair trial.
Brown's trial counsel did not call as a witness Valerie Brown, Appellant's
mother, as the reporter's record clearly shows. Appellant's brief only describes
her as being "present when the complained of language in the indictment was
uttered." Brief for Appellant at 46. Brown himself only complains of her
absence with no description of her possible testimony or purpose. CR 73 (Mot. to
Appeal, sec. IV). Appellant's counsel expands on her possible role as a witness
17
In a supplementary motion filed with the Third Court describing her proposed
testimony as follows:
"Mrs. Brown will testify that Mr. Brown was upset at having his
parental rights to his 3 year old [sic] daughter terminated just
moments before, that he was planning to file a lawsuit because he felt
his rights were being violated and that he never threatened anyone, but
was simply "grieving."
Mot. to Abate Appeal and Remand for Hrg. on Mot. for New Trial and for
Permission to File Out of Time Mot. for New Trial at 3. This single
sentence without support from a sworn statement or other source is the only
description of the substance of the testimony of the proposed witness.
Through cross-examination of one of State's complaining witnesses and
courthouse deputies at the scene, trial counsel did develop the ideas that the
Defendant was possibly upset at the recent parental rights termination judgment
and possibly grieving. 2 RR 31-32, 87-89, 92. The State's complaining
witnesses testified that at the scene Valerie Brown was trying to pull Brown into an
elevator. CR 40, 46, 48, 62. Joseph specifically testified "and she was trying to
tell him to stop, and she was trying to tell him no, nobody is going to do anything."
CR 62. Further, the record indicates Valerie Brown was present at the trial,
sitting behind the prosecuting attorney and pestering him. CR 73. In light of
18
these descriptions of her involvement, trial counsel's decision not to call her as a
witness becomes a potential strategy to limit the damage to his client.
Courts generally presume that the action (or inaction) of trial counsel is trial
strategy when the record is silent as to trial counsel's motivations regarding the
case at bar. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). A
claim of ineffective assistance of counsel will be upheld only where the record
affirmatively supports such a claim. Strickland, 466 U.S. 668, 689, 104 S. CT.
2052, 2065, 80 L. Ed. 2d 674 (1984); Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001); Thompson, 9 S.W.3d at 812. Appellant fails here in his burden
of production to demonstrate affirmatively from the record any deficient
representation by trial counsel in not calling Valerie Brown as a witness.
Trial counsel did not call any witness related to the production of the
courthouse video as the reporter's record clearly shows. Brown's complaint
about the evidence appears to be that it was edited prejudicially. Brief of
Appellant at 44; CR 63 (Mot. For New Trial, sec. XIII); CR 73 (Mot. To Appeal,
sec. IV). The only direct mention of a potential witness is in Appellant's
supplemental motion to the Third Court as follows:
" Flores will testify that there is possibly additional video
evidence over and above the two "snippets" of video information
entered as evidence in the trial before the court."
19
Mot. to Abate Appeal and Remand for Hrg. on Mot. for New Trial and for
Permission to File Out of Time Mot. for New Trial at 3. This vague
representation of the testimony of an only partially identified witness is also
unsupported by a sworn statement or other source.
The State's video evidence consists of two duplicate pmrs of videos
depicting the relevant areas in the Travis County civil courthouse: the doorway to
the courtroom where the termination hearing was held and, peripherally, one of the
elevators in the central hallway. 3 RR State's Exh. #4. Three photographic
exhibits put the locations of the video scenes into context. 3 RR State's Exh.
#1-3; 2 RR 7-20. The pair of videos depicting the courtroom doors contain two
time frames: 12:09:24 thru 12:09:35 and 12:11:21 thru 12:13:18. 3 RR State's
Exh. #4. These may be the "snippets" and editing complained of by Appellant
although not specifically identified in the brief or supplemental motion. The
other pair of videos depicting the elevator area are continuous runmng from
12:12:01 - 12:14:55. 3 RR State's Exh. #4. The videos overlap in completely
covering the period during which the threats were made. The first segment of the
door video was for the State's purpose of demonstrating that Brown "stormed" out
of the civil courtroom prior to the incident. 2 RR 37, 56.
20
The record does contain an explanation of trial counsel's decision regarding
a "video surveillance witness":
Mr. Brown has asked that I subpoena to this hearing the person with the
most knowledge of the video operations at the old courthouse and the
person who was responsible for deciding what video footage the Court
got to see this morning. I've explained to Mr. Brown that I didn't think
the Court would stand for that kind of subpoena, that it would be found
irrelevant. So I did not.
2 RR 75.
Assuming arguendo that calling a video surveillance witness would have
provided more information on the areas and timeframes filmed, appellant must
show that there is "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 693, 104 S. CT at 2067. Testimony at trial illustrated weaknesses in the State's
video evidence by demonstrating that the video angle filming the elevator area was
cutoff, that only the back of the defendant could be seen outside the elevator and
that the camera angle did not display the location of the other involved persons. 2
RR 24, 26, 28, 79. There is no affirmative record support that additional
testimony from any other person, let alone "__ Flores", regarding the production
of the video recordings would have made any difference at all in the outcome.
Appellant fails here in proving deficient representation by trial counsel in not
calling a "video surveillance" witness.
21
Appellant's brief provides no factual support for and does not even develop
the contention that ineffective assistance of counsel may be found in trial counsel's
failure to withdraw and in that no hearing was held on Appellant's motion for new
trial within seventy-five days. TEX. R. APP. P. 38.1(i). The record clearly shows
that a hearing was set for the seventy-fifth day after trial counsel filed a motion for
new trial. Trial counsel's motion was filed October 31, 2013. CR 59-60. The
trial court bench-warranted Brown back from prison for a hearing January 14,
2014. CR 100; Brief for Appellant at 50. Further proof that trial counsel was
still acting on behalf of Brown can be found in the court's order of appointment for
trial counsel dated January 7, 2014. CR 103. Rhetorically, the State must ask,
who does Brown contend moved the trial court to bench warrant him back within
the seventy-five day time limit for action on the motion for new trial, if not his trial
counsel? The January 14, 2014 hearing date was Brown's opportunity to alter the
course of events, but he declined to even participate. Brief for Appellant at 50.
To label trial counsel deficient here on this basis with no record support at all is
unfair. Appellant utterly fails to discharge his burden of production on this
particular aspect of his broad claim of ineffective assistance of counsel. TEX. R.
APP. P. 38.1(i).
22
Appellant's final ineffective assistance claim alleges Brown was deprived of
counsel during the thirty-day window for filing a motion for new trial. This claim
is flatly refuted by the record. Trial counsel filed a motion for new trial on
October 31, 2013, within thirty days of the trial on October 23, 2013. CR 59-60.
A claim of deprivation of counsel during this period requires a showing that the
defendant did not have an opportunity to file a motion for new trial. See Cooks v.
State, 240 S. W.2d 906, 910-11 (Tex. Crim. App.-2007). Trial counsel is
presumed to have adequately represented a defendant during this period, which a
defendant can rebut. Id. Not only does Brown fail to rebut this presumption, the
record affirmatively shows trial counsel acted properly. Appellant utterly fails to
discharge his burden of production on this particular aspect of his broad claim of
ineffective assistance of counsel.
Brown's real problem is that he spumed his opportunity for a potential
reduction in his sentence and a chance for his trial complaints to be developed
more fully, an opportunity that trial counsel impliedly engineered for him. The
record shows a motion for new trial hearing was scheduled for January 14, 2014.
Brown was bench-warranted back from prison and was available for his requested
hearing. But he refused to enter the courtroom and participate. In the case at
bar, Brown seeks to impute ineffective assistance to trial counsel based on his,
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Brown's, own self-defeating actions. As Appellant has not discharged his burden
of production on the alleged deficient acts of representation, Brown should not be
allowed to prevail and cast blame on another for a disaster of his own making.
The State respectfully requests that the Court overrule this point of error alleging
ineffective assistance of counsel.
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PRAYER
For these reasons, the Travis County District Attorney, on behalf of the State
of Texas, asks this Court to overrule the points of error and affirm the judgment of
conviction for James A. Brown.
Respectfully submitted,
ROSEMARY LEHMBERG
TRAVIS COUNTY DISTRICT ATTORNEY
~~r;z
WILLIAM G. SWAIM III
SPECIAL ASSIST ANT DISTRICT ATTORNEY
State Bar Number 00785074
Post Office Box 1748
Austin, Texas 78767
Telephone: (512) 854-9415
Bill.Swaim@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
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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
3,853 words, excluding words contained in those parts of the brief that Rule 9.4(i)
exempts from inclusion in the word count.
Is/ William G. Swaim III
Special Assistant District Attorney
CERTIFICATE OF SERVICE
I certify that, on this the 6th day of March, 2015, a copy of the foregoing
motion was sent, via U.S. mail, email, or electronically through the electronic file
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
atton1eybernard@yahoo.com
Is/ William G. Swaim III
Special Assistant District Attorney
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