James Arthur Brown v. State

• Court: Court of Appeals of Texas
• Decided: January 9, 2015
• Docket: 03-13-00760-CR
• Status: Published

Opinion

ACCEPTED 03-13-00760-CR 3718822 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/9/2015 3:56:06 PM JEFFREY D. KYLE CLERK NO. 03-13-00760-CR

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD DISTRICT AUSTIN, TEXAS ________________________________________ 1/9/2015 3:56:06 PM JEFFREY D. KYLE JAMES BROWN, Clerk APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE ________________________________________

THE STATE’S MOTION TO ABATE APPEAL AND MOTION FOR APPELLANT’S MOTION TO BE HELD IN ABEYANCE

TO THE HONORABLE JUSTICES OF THE COURT OF 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 holding in abeyance the pending motion of the appellant styled Motion

to Abate Appeal and Remand for Hearing on Motion for New Trial and for

Permission to File Out of Time Motion for New Trial (herein referred to as

“the appellant’s motion”).

In support of the instant motion, the State asserts as follows: 1. Procedural background

On May 29, 2013, a Travis County grand jury filed an indictment

charging the appellant with three counts of the felony offense of obstruction

or retaliation. CR 19. One of the victims named in the indictment was

employed, at the time of the offense, as a Travis County Assistant District

Attorney and continues to be so employed.

On April 5, 2013, the Travis County District Attorney appointed

attorney Corby Holcomb to serve as Special Assistant District Attorney for

the purpose of representing the State in the case styled State of Texas v.

James A. Brown, Cause Number D1DC13-300630. CR 10. For the Court’s

convenience, a copy of the document reflecting that appointment is attached

hereto.

On October 23, 2013, a bench trial was held in the 331st District

Court. The trial court (the Honorable David Crain presiding) found the

appellant guilty of all three counts and, on each count, assessed the

appellant’s punishment at confinement for a term of 15 years in the

Institutional Division of the Texas Department of Criminal Justice. CR 51-

58.

The appellant’s motions for new trial were filed on October 31 and

November 1, 2013. CR 59-66. Notice of appeal was filed on November 8,

2 2013, and on January 30, 2014. CR 83, 107. The trial court certified that

the appellant has the right of appeal. CR 84.

On December 29, 2014, the appellant filed his Motion to Abate

Appeal and Remand for hearing on Motion for New Trial and for

Permission to File Out of Time Motion for New Trial (herein referred to as

2. This appeal should be abated

In light of the fact that one of the appellant’s victims is currently

employed as an Assistant District Attorney, and the fact that a special

prosecutor was appointed to represent the State in the proceedings occurring

in the 331st District Court, the State of Texas asserts that it would be

appropriate for the State to be represented by a special prosecutor in relation

to the instant appellate proceedings.

Abatement of this appeal is warranted because it is presently unclear

whether the State be represented during the instant appellate proceedings by

Special Assistant District Attorney Holcomb or, alternatively, by a different

special prosecutor. It appears that Mr. Holcomb has not been served with

appellant’s motion or with the appellant’s brief. The State respectfully

requests that the appeal be abated for a period of time reasonably sufficient

3 to enable the State to secure the services of a special prosecutor, whether it

be Mr. Holcomb or a different individual.

3. The appellant’s motion should be held in abeyance

Because the special prosecutor who will represent the State in the

proceeding has been firmly identified and has not been served with the

appellant’s motion, the State requests that, as part of the above-requested

abatement, the appellant’s motion be held in abeyance. Further, the State

requests that the special prosecutor be afforded an adequate opportunity to

respond to the appellant’s motion after these proceedings are reinstituted and

after that individual receives service of the appellant’s motion.

PRAYER

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

and hold the appellant’s motion in abeyance.

4 Respectfully submitted,

ROSEMARY LEHMBERG District Attorney Travis County, Texas

/s/ M. Scott Taliaferro M. Scott Taliaferro Assistant District Attorney Director, Appellate Division State Bar No. 00785584 P.O. Box 1748 Austin, Texas 78767 Phone No. (512) 854-3626 Fax. No. (512) 854-4810 Scott.Taliaferro@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 motion, that this

motion contains 636 words, excluding words contained in those parts of the

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

/s/ M. Scott Taliaferro M. Scott Taliaferro Assistant District Attorney

5 CERTIFICATE OF SERVICE

I hereby certify that, on this 9th day of January, 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 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 attorneybernard@yahoo.com

/s/ M. Scott Taliaferro M. Scott Taliaferro Assistant District Attorney