Daniel, Brandon

Court of Appeals of Texas·Decided April 16, 2015·No. AP-77,034·Published

Opinion

AP-77,034

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 4/16/2015 9:40:11 AM April 16, 2015 Accepted 4/16/2015 9:41:50 AM ABEL ACOSTA

NO. AP-77,034 CLERK

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

BRANDON DANIEL,

APPELLANT

VS.

THE STATE OF TEXAS,

APPELLEE

THE STATE’S MOTION TO ABATE APPEAL

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL 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 remanding this cause to the trial court for a hearing on appellant’s desire

to dismiss his counsel, proceed pro se, and waive all appeals

In support of the instant motion, the State asserts as follows:

1. Procedural Background and Relevant Facts

The State charged appellant by indictment with the capital murder of

Austin Police Officer Jaime Padron committed on April 6, 2012. (CR 100,

118-119). A jury found appellant guilty of capital murder (CR 184), and

pursuant to the jury’s answers to the special issues at punishment, the trial

court sentenced appellant to death on February 28, 2014. (CR 189-190; RR

26: 221). Appellant timely filed a motion for new trial, which was overruled

by operation of law, and notice of appeal. (CR 196, 197). The trial court

appointed attorney Ariel Payan to represent appellant on direct appeal

pursuant to appellant’s desire to be represented by counsel. (CR 205; RR

26: 219).

On the same day of sentencing, the trial judge found the appellant to be

indigent and that the appellant desired to have counsel appointed for the

purpose of a writ of habeas corpus pursuant to Art. 11.071, V.A.C.C.P.. (CR

192; RR 26: 220). The trial judge therefore entered an order appointing the

Office of Capital Writs and Director Brad Levenson as counsel to investigate

the case, file the appropriate writ, and fully represent appellant. (CR 192).

On January 16, 2015, Payan timely filed a brief on direct appeal on

appellant’s behalf. The State’s brief on direct appeal is currently due on

April 20, 2015, but the State anticipates requesting additional time in which

to complete its responsive brief.

2. This Appeal Should Be Abated

On March 4, 2015, appellant filed a letter with the District Clerk’s Office

of Travis County. See Exhibit A, certified copy of appellant’s letter,

attached to this motion. In the letter directed to the judge of the convicting

court, appellant expresses his desire to dismiss his direct appeal attorney,

Ariel Payan, dismiss the brief Payan filed on his behalf, proceed pro se, and

waive all appeals. Appellant also indicates his desire to dismiss the Office

of Capital Writs and Brad Levenson on habeas review, proceed pro se, and

waive habeas review.1

Appellate review of a death sentence is automatic and cannot be waived.

Art. 37.071(h), V.A.C.C.P. Thus, an appellant must either be represented by

counsel on direct appeal or he must proceed pro se. The State submits that

this Court should abate this appeal and remand this case to the trial court for

a hearing to determine whether (1) the appellant understands that he cannot

waive his right to direct appeal, (2) the appellant really desires to dismiss

Payan and proceed pro se, (3) the appellant has been advised of the dangers

and disadvantages of self-representation if he chooses to represent himself

on direct appeal, see e.g., Burgess v. State, 816 S.W.2d 424 (Tex.Crim.App.

1991), and (4) the appellant is competent to make these decisions, see Rees

v. Peyton, 384 U.S. 312 (1966).

On the other hand, the law does not require the filing of an application

for writ of habeas corpus, and an applicant may waive his right to habeas

1 Additionally, in a letter dated March 26, 2015, and addressed to Travis County District Attorney Rosemary Lehmberg, appellant expressed his desire to waive his appeals and sought the District Attorney’s help “to expedite the situation.”

review. Ex parte Reynoso, 257 S.W.3d 715 (Tex.Crim.App. 2008). Since

the trial court appointed counsel to present appellant on habeas review and

the appellant now expresses his desire to dismiss counsel and waive habeas

review, the State submits that abatement and remand are necessary for the

trial court to additionally determine whether the appellant wishes to file an

application for writ of habeas corpus and, if he does not, whether he has

made this decision knowingly and voluntarily. See Reynoso, AP-74,952,

Order dated September 15, 2004. If the appellant does wish to pursue

habeas review, the trial court should determine whether appellant wishes to

dismiss his appointed counsel and proceed pro se and, if he does, whether he

has made this decision knowingly and voluntarily.

PRAYER

Wherefore, the State requests that this Court abate the instant appeal

and remand this cause to the trial court for a hearing on appellant’s desire to

proceed pro se and waive all appeals.

Respectfully submitted,

ROSEMARY LEHMBERG District Attorney Travis County, Texas

/s/ Lisa Stewart Lisa Stewart Assistant District Attorney Director, Appellate Division State Bar No. 06022700 P.O. Box 1748 Austin, Texas 78767 Phone No. (512) 854-3626 Fax. No. (512) 854-4810 Lisa.Stewart@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 document, that this

document contains 758 words, excluding words contained in those parts of

the document that Rule 9.4(i) exempts from inclusion in the word count.

/s/ Lisa Stewart Lisa Stewart Assistant District Attorney

CERTIFICATE OF SERVICE

I hereby certify that, on this 15th day of April, 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 attorneys for the

appellant:

Ariel Payan 1012 Rio Grande Austin, Texas 78701 Fax: 512-472-4102 ArielPayan@hotmail.com

Brad Levenson Office of Capital Writs Stephen F. Austin Building 1700 N. Congress Avenue, Suite 460 Austin, Texas 78701 Fax: 512-463-8590 Brad.Levenson@OCW.Texas.gov

Lisa C. McMinn State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711-3046 Lisa.McMinn@spa.texas.gov

/s/ Lisa Stewart Lisa Stewart Assistant District Attorney

EXHIBIT A

February 25, 20L5

Judge Brenda Kennedy 403rd District Court 'ot Fllor

P.O. Box 1748 Austin, TX 78767

Re: Brandon Daniel v. State of Texas; L2-20L7L8

Dear Judge Kennedy:

I was senteneed to death in your court Last February for the murder of an Austin police officer Ln 20L2. After long and careful consideration of all of my options I have decided to respectfully request to waive any and all of my appeals immediately . The reasons for my decision include, but are not limited to: the fact that I want justice to be served and I feel that the punishment is appropriate for my crime; we are both interested in saving the taxpayer's money, the Eime of all involved and in sparing my family and the victim's family any more angst than necessaryi and, finally, I-would like to limit my time in prison to the least amount possible.

I undersland that this means Ehat I forfeit any possibility of receiving a sentence that is lesser in the eyes of the Iaw. I am competent and will submit t,o any exams Ehat the court requires. I am also completely informed of the situation and the effects of my decision due to my lawyer, Brad D. Levenson of the Of f ice of Capital I'lrit,s (OCW;, who has consistently [ried to di-ssuade me. Although the entire OGW has been very helpful Ehroughout the process, r would also like to dismiss the 0cll and represent myself pro se for the remainder of the case in order to avoid any conflicLs of interest.

My direst appellaUe counsel, Ariel payan, filed an appeal against my wishes despite confirming that he received my letLer ,oli,: l.

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