in Re Brandon Jay Carter

• Court: Court of Appeals of Texas
• Decided: March 10, 2015
• Docket: 01-15-00216-CR
• Status: Published

Opinion

ACCEPTED 01-15-00216-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/10/2015 4:08:16 PM CHRISTOPHER PRINE CLERK

No. 01-15-00216-CR No. 01-15-00217-CR FILED IN 1st COURT OF APPEALS § IN THE COURT OF APPEALS HOUSTON, TEXAS IN RE 3/10/2015 4:08:16 PM § FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE Clerk BRANDON JAY CARTER § HOUSTON, TEXAS

STATE’S RESPONSE

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

NOW COMES the State of Texas, by and through its District Attorney, 268th

Judicial District, Fort Bend County, and responds to this Court’s request for a

response from the real party in interest in the above referenced cases.

I. Procedural Background

On August 30, 2012, a Fort Bend County Grand Jury indicted Relator, Brandon

Jay Carter, for the offense of burglary of a habitation with intent to commit a sexual

assault, a first degree felony. [Exhibit A, being a copy of the indictment]

On February 17, 2015, a jury trial commenced with the selection of a petit jury,

which was selected and sworn on February 18, 2015. The State rested and closed on

February 25, 2015, and the jury began its deliberations. February 26, 2015, the jury

reported that their differences were irreconcilable. The Court sent an Allen charge

to the jury, but the jury was still unable to reach a verdict. Relator’s motion for a

1 mistrial was granted and the jury discharged. The trial court then entered a Judgment

of Contempt and Commitment Order and released Relator’s defense counsel, David

Christopher Hesse on a personal recognizance bond. [Exhibit B, being a copy of the

trial court’s docket sheet]

On March 2, 2015, Hon. James Shoemake, Presiding Administrative Judge

entered an order appointing Harris S. Wood, Jr. to defend Relator. [Exhibit C, being

a copy of the order packet]

On March 6, 2015, this Court requested a response from the real party in

interest. The Court’s website reflects that the State of Texas is a real party in interest.

On March 9, 2015, a Notice of Allegations of Contempt and Order Setting

Show Cause Hearing for March 23, 2015 was filed and personally served on March

10, 2015 on Mr. Hesse. [Exhibit D, being a copy of the notice without attachments]

II. The State is not a real party in interest

The crux of Relator’s petition for writs of mandamus and prohibition is to

reinstate David Christopher Hesse as Relator’s appointed attorney. Although Relator

names District Attorney, John F. Healey, Jr., as a real party in interest, the State of

Texas has no interest in which competent attorney represents Relator.1 More

1 The State’s only interest is that appointed counsel render effective assistance.

2 importantly, the State believes that it may be an ethical violation for its attorneys to

express an opinion in this matter and as a result, in all likelihood, interfere with the

attorney-client relationship.

Respectfully submitted,

John F. Healey, Jr. SBOT # 09328300 District Attorney, 268th Judicial District Fort Bend County, Texas

/s/ Gail Kikawa McConnell Gail Kikawa McConnell SBOT # 11395400 Assistant District Attorney 301 Jackson Street, Room 101 Richmond, Texas 77469 (281) 238-3205/(281) 238-3340 (fax) Gail.McConnell@fortbendcountytx.gov

3 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing State's response was served on

March 10, 2015, the electronic filing manager or by email on the following persons:

David Christopher Hesse, Attorney for Relator Hesse@HoustonCriminalJustice.com

Harris S. Wood, Jr., Appointed Attorney for Relator in Cause No. 12-DCR-061186 hwoodatty@yahoo.com

Hon. Thomas R. Culver, III, Presiding Judge, 240th District Court c/o Becky.Fisher@fortbendcountytx.gov

/s/ Gail Kikawa McConnell Gail Kikawa McConnell

4 Exhibit A 4 THE STATE OF TEXAS Amanda Bolin 30.02 (d) 22990007

VS

BRANDON JAY CARTER

D.O.B.: 04/25/1991 DA CONTROL NO: 12-006209

FELONY CHARGE: BURGLARY HABITATION INTEND ARREST DATE: Not arrested on this charge SEX OFFENSE/ Fl _____

CAUSE NO: \i~Kd-ckm OFFENSE DATE: September 26, 2011

DISTRICT COURT NO AGENCY/AGENCY NO: FORT BEND COUNTY SHERIFF'S ; mi OFFICE/ 110025389

BAIL AMOUNT: * fyb ,c0 PRIOR CAUSE NO:

RELATED: CO-DEF:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Fort Bend County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, BRANDON JAY CARTER, hereafter styled the Defendant, heretofore on or about September 26, 2011, did then and there intentionally or knowingly enter a habitation, without the effective consent of Larissa Treybig, the owner thereof, and attempted to commit or committed the felony offense of sexual assault;

i,?nf*"court o-i CM Oi- _ cj •

o IJJ Cl-C"

oil"

CD

AGAINST THE PEACE AND DIGNITY OF THE STATE. U- «X

12-DCR-061186 INOI Indictment 2039636 FOREMAN OF THE GRAND JURY

)ICTMENT (ORIGINAL/DA) Exhibit B CRIMINAL DOCKET CAUSE NO: 12-DCR-061186

COURT NO. CASE TYPE FILED STYLE OF CASE ATTORNEYS 240th Judicial Adult Felony - Filed by Indictment DISTRICT ATTORNEY District Court THE STATE OF TEXAS VS STATE DATE OF FILING OFFENSE BRANDON JAY CARTER DEFENDANT BURGLARY HABITATION INTEND SEXOFFENSE (F1)

ORDERS OF COURT BAIL SET AT^50,000 m: U_L JL iSL

rii^o _^uj._kOtoL:pjz$8££

7- H llC u^/rt^_4^««_^___ _A_ i»_w.^ J AjXLfnJl • ^T_T( fori- &AfMiJOrt fo_.J .f^TnAJrM^_^W>sJt £ A^4jU.cw, i^A*^

_ _ _ _ CAUSE NO: THE STATE OF TEXAS vs DATE OF ORDERS MONTH DAY YEAR ORDERS OF COURT Qwtovu^j)) —==^__=_=_—______ ^ ^ ^ ^ m - ,i i________ii_.il „_• __n^5^ ^yy ffl >' IB •Z-S" MA,

—•——-—-————=—=—c—lTv/ ' y —y|" •—^_i —,——_-i *v-> \ -~ v • i—we y_-p r_-Mo jBitM Exhibit C ORDER APPOINTING COUNSEL

Cause No. 12-DCR-061186

The State of Texas

Vs.

Upon determination by the Court that this Defendant is indigent, HARRIS S. WOOD, JR is hereby appointed to defend BRANDON JAY CARTER.

March 02, 2015

•yj Jfff I Presiding Jucflge

f^ HAk WW J 2015 __ _,UHHj I/*,,.* u. *S/ I St

:VV- irict CdyrL Fc!t3?r': '-^..TX BRANDON JAY CARTER 802 Vestabend Houston, Tx 77073 Home: 281-232-6744

ORDER AND NOTICE OF COURT APPOINTED ATTORNEY

The State of Texas Vs. BRANDON JAY CARTER

You are hereby notified that HARRIS S. WOOD, JR, whose address and telephone number appear below, is hereby appointed as your attorney. Such representation will continue until this case is disposed, and appeals are exhausted, or replaced by an attorney whom you choose to retain.

Your FIRST COURT DATE is as follows: April 06, 2015 at 1:30 PM at the 240th District Court.

IMPORTANT: If the Bail Bond you received at the jail gives you a different court date than the one listed above for the bond cases, you MUST appear on the earliest date to prevent your bond from being forfeited. It is your responsibility to be present at all of your court dates.

You should arrive at the Court Room at least thirty (30) minutes prior to your arraignment time to allow for parking and to meet your attorney. If you are late or do not appear, a warrant will be issued for your arrest and your bond will be forfeited.

-&- fy?i/v [jig Presidi/ii Wftistr;&tive Judge

HARRIS S. WOOD, JR 2190 NORTH LOO'P WEST STE 308 HOUSTON, TX 77018 281-924-5876 -M.-j~ ".SrrTi mz^f

'>'"-»m\,k

From: Levy, Raquel Sent: Monday, March 02, 2015 3:55 PM To: 'hwoodatty@yahoo.com' Subject: FELONY APPOINTMENT - CERTIFICATE OF CONTACT Attachments: CERTIFICATE OF CONTACT.doc

Dear Counsel:

You have been appointed by the court to represent:

Name: Brandon Jay Carter

DOB: 04/25/1991

Address: 802 Vestabend Houston, Tx 77073

Phone: 281-232-6744

Charge: Burglary Habitation Intend Sex Offense - C#12-DCR-061186

,TH, Court Date: 4-6-15 @ 1:30 PM IN THE 240'" DISTRICT COURT

Ifthe defendant has made bond, they may be reached at this address and phone otherwise they will be in the Fort Bend County Jail. As you are aware it isyourresponsibility to make every reasonable effort to contact the defendant bythe end of the next workingday after today. Failure to comply with this responsibility may result in your replacement as counsel for the defendant pursuant to Art. 26.04(k) of the Code of Criminal Procedure.

Please reply to this email IMMEDIATELY and acknowledge your receipt of receiving.

Raquel Levy Administrative Court Services Indigent Defense Coordinator 301 Jackson St. Richmond, Tx 77469 281-341-3780 FAX #281-238-3224 Raquel.Lew(S)fortbendcountvtx.gov

2015 *- M. -X^^jtfrjtf., f>!. ffict Court, rOft 3en^0*.,TX 12-DCR-061186 ORDER Order 3454475

ORDER TO SUBSTITUTE COUNSEL

STATE OF TEXAS

Upon determination by the Court that this defendant is indigent,

ATTORNEY HARRIS S. WOOD, JR. is hereby appointed to substitute

ATTORNEY CHRIS HESSE to defend BRANDON JAY CARTER.

Date: March 02, 2015

COURf ADMINISTRATION COORDINATOR

-*&*

^'-AiBJctCdunLFdftae^JcTX Exhibit D No. 12-DCR-061186

STATE OF TEXAS § IN THE 240TH JUDICIAL

VS. § DISTRICT COURT OF

BRANDON JAY CARTER, § FORT BEND COUNTY, TEXAS Defendant

IN RE: DAVID CHRISTOPHER HESSE

NOTICE OF ALLEGATIONS OF CONTEMPT AND ORDER SETTING SHOW CAUSE HEARING

Notice is hereby given to Respondent, David Christopher Hesse, that certain

conduct by you, more fully set forth hereinbelow, is considered by this Court to be

prima facie evidence of contempt of court. Attached hereto as Exhibit A, and

incorporated herein, is a copy of the Reporter's Record of the Court's Judgment of

Contempt and Commitment Order. Attached hereto as Exhibit B, and incorporated

herein, is a copy of the Reporter's Record of the Testimony of Detective

Thompson. Attached hereto as Exhibit C, and incorporated herein, is a copy of

the audio recording of the trial proceedings on February 24-26, 2015.

1. Factual Allegations

1.01 Respondent is the attorney of record for the Defendant in the above-entitled

and numbered cause. FILED '

12-DCR-061186 NOTF Notice 3462745

CLERK St|TRtCT COURT v> F0RTB8H0C0-TX 1.02 A jury trial commenced on February 17, 2015, with the selection of a petit

jury on February 18, 2015, which was sworn that day.

1.03 On February 18, 2015, the indictment was read, and the Defendant pleaded,

"Not Guilty." The State and Respondent for the defense presented opening

statements, after which the State's evidence began.

1.04 On February 24, 2015, defense witness Lloyd Malpess testified by

agreement of the parties out of order, before the State rested its case.

1.04 On February 24, 2015, Respondent argued with the Court's rulings.

1.05 On February 24, 2015, Respondent interrupted the Court as the Court spoke.

1.06 On February 24, 2015, Respondent pursued questioning on certain matters

after being instructed not to do so.

1.07 On February 24, 2015, The Court advised Respondent outside the presence

of the jury, that his conduct was contemptuous, that he would not be held in

contempt for what had occurred thus far, and that he should proceed with

care and would be held in contempt if he persisted in such behavior.

1.08 On February 25, 2015, despite the Court's warnings the day before,

Respondent again persisted in disrupting the proceedings of the Court during

his cross-examination of the State's witness, Detective Tommy Thompson.

1.081 Respondent argued with the Court's rulings, including "I want to

know more about this DeMarcus Hawthorne" [Ex A at 54]; "I have a right to confront, sir" [Ex A at 56]; "I object to being denied--" [Ex A

at 80-81]; "I can put my objection, now, sir. My objection-" [Ex A at

81]; "My objection is I~" [Ex A at 81]; "My client is being denied—

my client is being denied-" [Ex A at 81]; "And I want to put it on the

record, sir. I want to put it on the record--" [Ex A at 81]; "I object

that my client is being denied his right to confront--" [Ex A at 81];

"Every time you talk over me, sir, I'm not getting on the record. I

object-" [Ex A at 82]; "I'd like to make an offer of proof now, sir"

[Ex A at 82]

1.082 Respondent refused to give an estimate of how long Respondent

intended to cross-examine the witness, "As long as I see fit, sir," "I

don't know," "I'll determine that," "You can deal with that when it

comes sir," and when the Court asked for Respondent's best estimate,

Respondent twice answered, "No, sir." [Ex A at 58-62]

1.082 Respondent four times continued to pursue questioning about bad

acts or convictions of DeMarcus Cortez Hawthorne after the State's

object to relevance was sustained, and the Court had instructed

counsel to move on to another topic. [Ex A at 43-45, 80]

1.083 Respondent twice continuedto pursue questioning about latent

prints after the State's objection was sustained, and the Court had instructed Respondent to move on to new material. [Ex A at 55-56]

1.084 Respondent interrupted the Court when the Court spoke:

The Court: You have the usual pathway of objections—

Respondent: And I want to put it on the record, sir. I want to put it on the record—

The Court: And do not talk over the Judge.

[Ex A at 81]

1.09 On February 25, 2015, the State rested after Det. Thompson's testimony, the

defense rested, and the evidence was closed. The Court's charge was read,

closing arguments were made, and the jury was retired to deliberate on guilt-

innocence. The jury was allowed to separate at about 6:50 p.m. on the

agreement of the parties.

1.10 On February 26, 2015, the jury resumed deliberating, but sent out a written

note stating "our differences are irreconcilable." The Court prepared an

Allen charge that was approved by the parties and which was sent to the

jury. However, at about noon, the jury was returned to the courtroom,

Defendant's motion for mistrial was granted, and the jury was discharged.

1.11 On February 26, 2015, after the jury had been discharged, the Court entered

a Judgment of Contempt and Commitment Order after finding Respondent

in contempt and authorized Respondent to make a personal appearance bond

as an officer of the Court. 2. Allegations of Contempt

2.01 The conduct of the Respondent, as described hereinabove, is contumacious

for the reason that it significantly disrupts the orderly proceedings of the

court and the proper and effective administration of justice by causing

unnecessary delay and the waste ofjudicial resources.

3. Legal Principles

3.01 In determining whether or not the Respondent is in contempt, this Court is

cognizant of and guided by the principle that the essence of contempt is not

an offense against a particular judge's personal sensibilities, but is instead an

affront to the authority, justice or dignity of the court, which conduct

obstructs the proper and effective administration ofjustice. Brown v. United

States, 386 U.S. 148(1958).

3.02 Contempt has been defined as an act which is reasonably calculated to

impede, embarrass, or obstruct the court in the lawful discharge of its duties.

Ex parte Soape, 347 S.W.2d 621 (Tex. 1961).

4. Range ofPunishment

4.01 The range of punishment for contempt is a fine of not more than $500.00, or

confinement in the county jail for a period of not more than six months, or

by both a fine and a period of confinement. 5. Assigned Judge

5.01 Pursuant to Section 21.002(d) of the Government Code, the Honorable Olen

Underwood, presiding judge of this administrative region, has appointed the

Honorable Michael Seiler, to determine the guilt or innocence of the

Respondent.

Signed March 6, 2015.

Hon. Lee Duggan^ Judge Presiding by Assignment 240th District Court Fort Bend County, Texas SHOW CA USE ORDER

IT IS HEREBY ORDERED that the Respondent, David Christopher Hesse,

appear before this Court at 10:00 a.m. on March 23, 2015, to show cause why he

should notbe held in contempt ofcourt and punished accordingly.

NOTICE OF SHOW CAUSE ORDER

IT IS FURTHER ORDERED that the Clerk of this Court shall cause a

NOTICE OF SHOW CAUSE ORDER to be served on Respondent in person on

March 9, 2015, upon his appearance at 10:30 a.m. in this Court as Respondent

swore he would when released on a personal recognizance bail bond. A copy of

this notice and order shall also be provided to the Honorable Olen Underwood,

Administrative Judge; the Honorable Michael Seiler, Presiding Judge by

assignment; and the Honorable Thomas Culver, Presiding Judge of the 240th

District Court.

Signed March 6th0,^j\

;haei Seller Judge Presiding by Assignment 240th District Court Fort Bend County, Texas