# Carter, Brandon Jay > Court of Appeals of Texas · May 15, 2015 URL: https://www.frixlaw.com/law-library/cases/4055466 ## Case - **Court:** Court of Appeals of Texas - **Decided:** May 15, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4055466 ## Opinion text 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~~: ~~:Yw@5~~ AGAINST THE PEACE AND DIGNITY OF THE STATE. -z~,,~~/~;~ / / - 12-0CR-001181! :l-Bl.,. ,,.,,. .. 11. B lllo ~ Ill ORDERS OF COURT ( ,,,,... ...-~ .. 111 1 i--- 1 '°,........ ,_~ ·- $"" T' ,--,. .... -r r""'"" ~,.;... - "' i..;; ~ 01 :i: ~I !~ ~~I vJ ' :ll ::!l 0 ::D 0 m ::D (/} 0 '1 0 0 c :i:i () 0 ~ z c: rn 0 ;::: 6 -t--f--+---,1---1-1--1 el ";:::r= CRIMINAL DOCKET OURT NO. 1 STYLE OF CASE ATTORNEYS 240th Judicial DISTRICT ATTORNEY District Court THE STATE OF TEXAS DATE OF FILING VS MONTH DAY YEAR () . 1 f" __ _ 0 RA-Nt:>ON ~71'..a.. I I I I II 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 ~ 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\ ( ( . 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 / / / / :t ,/'¥·-~~""' < 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#