Benny Cavazos Valverde v. State

Opinion

ACCEPTED 04-14-00338-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/9/2015 9:52:04 AM KEITH HOTTLE CLERK

No. 04-14-00338-CR

BENNY C. VALVERDE, § IN THE FOURTH FILED DISTRICT IN 4th COURT OF APPEALS Appellant § SAN ANTONIO, TEXAS § 07/09/15 9:52:04 AM v. § COURT OF APPEALS KEITH E. HOTTLE § Clerk STATE OF TEXAS, § Appellee § SAN ANTONIO, TEXAS

STATE’S MOTION TO ABATE APPEAL AND REMAND CASE TO TRIAL COURT TO APPOINT AN ATTORNEY PRO TEM BECAUSE A CONFLICT OF INTEREST EXISTS BETWEEN APPELLANT AND THE CRIMINAL DISTRICT ATTORNEY

TO THE HONORABLE COURT OF APPEALS:

NOW COMES, Nicholas “Nico” LaHood, Criminal District Attorney of

Bexar County, Texas, and undersigned Counsel for the State of Texas, and files

this motion asking the Court abate these appellate proceedings and remand this

case to the trial court with directions to appoint an attorney pro tem.

I. Statement of the Case

On May 23, 2012, Benny C. Valverde, appellant was indicted for a murder

that was alleged to have occurred on September 4, 2011. Trial began on February

11, 2014, and the jury returned a guilty verdict on February 14, 2014. Judgment

was entered on March 20, 2014, and, on the same day, the trial judge certified

appellant‟s right to appeal. Appellant filed his notice of appeal on April 17, 2014. After several motions

for extension of time were granted by this court, on November 10, 2014,

appellant‟s first appellate counsel filed an Anders brief. Subsequently, appellant‟s

first appellate attorney withdrew as counsel, and appellant retained new counsel.

On January 20, 2015, appellant filed a motion to withdraw the Anders brief and to

extend time to file a substantive brief. That motion was granted. After several

other motions were filed, on June 1, 2015, appellant timely filed his new

substantive brief, which is currently before this court.

On July 1, 2015, the State was granted an extension of time to file its brief in

this case. The State‟s brief is due on July 31, 2015.

II. An Abatement is Necessary

“Each district attorney shall represent the State in all criminal cases in the

district courts of his district and in appeals therefrom, except in cases where he has

been, before his election, employed adversely.” Tex. Code Crim. Pro. Ann. art.

2.01 (emphasis added). Thus, “if an elected prosecuting attorney has previously

represented a defendant in a particular proceeding, then article 2.01 disqualifies

him from representing the State in the matter and that disqualification is imputed to

those assistants „who serve[] at his will and pleasure.‟” Scarborough v. State, 54

S.W.3d 419, 424 (Tex. App.—Waco 2001, pet. ref‟d) (quoting State v. May, 270

S.W.2d 682, 684 Tex. Civ. App.—San Antonio 1954, no writ) (per curiam)).

2 In the instant appeal, the elected district attorney, Nicholas “Nico” LaHood,

while not appellant‟s trial counsel, nonetheless did once represent appellant in this

case. (See, e.g., Reporter‟s Record vol. 5, pg. 68.) This fact has been confirmed

by District Attorney LaHood. He is, thus, disqualified from prosecuting this case,

including the appeal, and, accordingly, so are his assistants. As a result, this appeal

must be abated and remanded to the trial court so that it may appoint an attorney

pro tem for the purposes of defending the verdict on appeal.1 See Tex. Code Crim.

Pro. art. 2.07 (authorizing the trial court to appoint an attorney pro tem if the

district attorney is disqualified to act in any case or proceeding).

1 However, it must be noted that having been sworn in on January 1, 2015, District Attorney LaHood was not the elected district attorney when this case was tried to a verdict. Therefore, his and his assistants‟ disqualification only extends to any post-conviction proceedings, not the trial itself, and the verdict is not disturbed by this disqualification.

3 III. Prayer

WHEREFORE, PREMISES CONSIDERED, the State prays that this court

will ABATE this appeal and REMAND the case to the trial court with directions to

appoint an attorney pro tem to represent the State on appeal.

Respectfully submitted,

NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas

_______/s/_______ ANDREW WARTHEN Assistant Criminal District Attorney State Bar No. 24079547 101 West Nueva Street San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 awarthen@bexar.org

Attorneys for the State of Texas

4 CERTIFICATE OF SERVICE

I, Andrew Warthen, Assistant Criminal District Attorney, Bexar County,

Texas, hereby certify that a true copy of the above and foregoing Motion was

emailed to appellant‟s attorneys, John G. Jasuta, at lawyer1@johnjasuta.com, and

David A. Schulman, at zdrdavida@davidschulman.com, on July 9, 2015.

_______/s/_______ ANDREW WARTHEN Assistant Criminal District Attorney State Bar No. 24079547 101 West Nueva Street San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 awarthen@bexar.org

Attorney for the State of Texas