Nii-Otabil Nelson v. State

Opinion

ACCCPTCD

^Sfw**9 • 01 14 oooe-4 crr~ FIRST COURT OF APPEALS

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HOUSTON, TEXAS -7/0/2010 0.12.20 AWI—

Iftft CHRISTOPHER PRINE ^ CLERK

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NO.: 01 14 00924 CR

NII-OTABIL NELSON IN THE

VS. FIRST COURT

STATE OF TEXAS, OF APPEALS

MOTION TO EXTEND TIME TO FILE APPELANT'S MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes NII-OTABIL NELSON, Appellant in the above styled and

numbered cause and moves this Court to grant an extension of time to file

appellant's brief, pursuant to Rule 38.6(d) of the Texas Rules ofAppellate

Procedure, and for good cause shows the following:

1. This case is on appeal from the 182nd Judicial District Court of Harris

County, Texas.

2. The cases below was styled the STATE ORTEXAS vs. NII-OTABIL

NELSON, and numbered 1372073A.

3. Appellant was placed on deferred adjudication for Assault/Family Member.

4. The Motion for Rehearing is due on July 15, 2015.

5. Appellant retained present counsel on July 3, 2015.

6. An extension is necessary for Appellant's counsel to obtain evidence from

the State. Counsel has submitted an open records request to the Harris

County District Attorney's Office to obtain such evidence, however, it is not

likely that such evidence will be made available until after the July 15th

deadline.

7. This is Appellant's first request for an extension for a Motion for

Rehearing.

8, Appellant requests a forty-five (45) day extension to prepare a thorough

Motion for Rehearing.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

grant this Motion for to Extend Time to File Appellant's Motion for Rehearing, and

for such other and further relief as the Court may deem appropriate.

Respectfully submitted,

/s/Andre D. Evans

Andre D. Evans TBN: 24082970

3003 South Loop West Ste. 108 Houston, Texas 77054

Telephone (832) 941-1282

Facsimile (646) 3044054

Attorney for Appellant

AnoreEvah's £ ASSOCIATES

Dear Prospective Client:

I thank youfor retaining this firm to represent you.

Engagement:

This Agreement dated *7..l ^l/£> ,will confirm our mutual understanding with respect to the terms ofthis firm's representation ofyou and is made between the client(s) whose name(s) appear below (collectively called "Client") and The Law Offices ofAndre Evans &Associates, PLLC (called "Attorney"). This Agreement is prepared in accordance with Texas Business and Organizations Code. You have retained my firm for the purpose ofrendering transactional legal services. My services will not include litigation ofany kindj whether in court, or in administrative hearings or before government agencies or arbitration tribunals. At your request, and ifyou and I agree on the financial arfangements, my services may also include such additional matters as fall within the fields ofemphasis ofmy practice. I agree to provide conscientious, competent and diligent services andat all times will seek to achieve the purpose for which I have been retained. However, because ofthe uncertainties in litigation, I cannot and do not warrant, predict orguarantee results or that a particular agreement orterms ofan agreement, or financial arrangements will be obtained which are satisfying to you and nothing in my statements to you will be construed as a promise or guarantee about the outcome ofyour matters; my comments are expressions of opinion only.

Authorization:

You hereby authorize, empower, and appoint me as your attorney-in-fact for yourself(ves) and your company to collect and receive all monies due you and/or your company relating to this Agreement, to negotiate and endorse your oryour company's name on and deposit into my client trust account all checks and other monies payable, to deduct my compensation as set forth herein, ifapplicable, together with any costs advanced by me, and to sendthe remainder to you,

Fees:

It is impossible to determine in advance the amount offees orcosts needed to complete this matter. Our fees are not set by law, but are subject to negotiation between you and me. Accordingly, you have agreed to pay methe sum of Two Thousand Five Hundred Dollars ($2,500.00) as a retainer in connection with the above-described matters; upon receipt ofsuch sum, we will commence representation ofyou. Our fees are computed on an hourly basis in five minute increments atthe rate ofTwo Hundred Fifty Dollars ($250.00) per hour or at an agreed upon flat or variable rate; our rates are subject to change upon written notice. You will not be billed for photocopying, long distance telephone call charges within the United States, word processing, telecopying, mileage (within afifty mile radius ofHouston, TX), faxing, or secretarial charges. All clients are required to pay all outstanding bills within ten (10) days oftheir presentment.

Time is recorded and billed for those services for which billing is normally expected, such as drafting letters, agreements, conducting negotiations, attending meetings, etc., and also for phone calls and travel time to and from out-of-office meetings. Should any travel be required beyond afifty-mile radius of Houston, you will advance all travel costs, subject to your sole approval. You agree to fly me Business Class, ifavailable, or First class, ifBusiness Class is unavailable, and all hotel and food arrangements will be paid by you, should such travel be necessaryand approved in advance by you before the commencement of such travel.

You are entitled to an "open door policy" whereupon any phone call made to this firm that lasts for less than tenminutes (unless suchcallsare sequential) will not be billed to you. This is offered to you in an effort to create a bridge between the lawyer and client without the constant attention to financial concerns.

Retainer:

We have requested that you pay the firm an initial retainer as described above in connection with the services we will perform onyour behalf. That sum will bedeposited in ourtrust account to be applied to fees and costs as they are incurred. You mayalso be required to replenish or add to the amount in the trust account as deemed necessary bythisfirm to cover ongoing legal services. Atthe conclusion of our representation of you (including your decision to terminate this agreement at any time), any sums remaining in the firm's trust account for yourbehalfafter a final accounting and payment of all sums owed will be returned forthwith.

Termination of Representation:

You are free to terminate your relationship withthe firm at any time you desire upon immediate written notice, andthe firm reserves the rightto withdraw as your counsel at any time upon written notice. Should the firm decide to terminate the relationship, we agree to provide any newattorney with complete copies of files and adequate transitional assistance.

Conflict of Interest:

As you know, attorneys aire governed by rules of ethical conduct, which under certain circumstances forbid their representation of clients with conflictinginterests. We cannot, and will not, without appropriate written consents, represent a newclient if we determine there is a conflict of interest withany of our other existing client matters. In order to avoid conflicts of interest, we askthatwhen you return the signed copy of this letter, you advise us of the names of aiiy individuals or entities which maybe involved inyourrepresentation. In addition, please inform us at once if you learn in the future of other persons or entities thatmay be involved so thatwe may make a conflict of interest search with respect to them.

I haveadvised youthat, whenever an attorney represents more thanone individual, there exists a potential for a conflict ofinterest toarise in connection with such representation. You hereby acknowledge that you have been made aware of such potential conflict of interest by me, that I have made you aware of the right of each individual to retain his/her own attorney, and that yOu have chosento waive such right and desire this office to represent each of you. k

Arbitration:

We appreciate the opportunity to serve as your attorneys and look forward to a harmonious relationship unmarred by disputes between us. In the eventyou become dissatisfied for any reason with the fees charged or the services we have performed, we encourage youto bringthat to our attention immediately. It is ourbeliefthatmost problems canbe resolved by good faith discussion between theparties. Nevertheless, it is always possible that some dispute mayarise which cannot be resolved by discussion between us. We believe thatsuch disputes canbe resolved more quickly and with less expense to all concerned by binding arbitration than by court action.

Arbitration is a processby which both partiesto a dispute agree to submit the matterto a judge or arbitrator who has expertise inthearea and to abide bythe arbitrator's decision. In arbitration, there is no fight to a trial byjury and the arbitrator's legal and factual determinations are not subject to appellate review. Rules of evidence and procedure are often less formal and rigid than in a trial before a court or jury.Arbitration usually results in a decision much morequickly than proceedings in court, and the attorneys' fees and costs incurred by both sides are usually substantially less.

Your agreeing to arbitrate disputes is not a condition of our agreeing to represent you, and if you do not wish to arbitrate should there be a problem, you should advise us before signing this letterso that we can deletethis section of the letter. Because by agreeing to arbitrate you will be giving up the rightto a jury trial and other rights, weencourage you to discuss the advisability of arbitration with other counsel or any of your other advisors and to ask any questions of us or them that you may have.

BY SIGNING THIS LETTER AGREEMENT, YOU AGREE THAT IN THE EVENT OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, OUR RELATIONSHIP, OR THE SERVICES PERFORMED (INCLUDING BUT NOT LIMITED TO DISPUTES REGARDING ATTORNEYS' FEES OR COSTS AND THOSE ALLEGING NEGLIGENCE, BREACH OF FIDUCIARY DUTY, FRAUD, OR ANY CLAIM BASED UPONA STATUTE), SUCH DISPUTE SHALL BERESOLVED BYFINAL, BINDING ARBITRATION IN HARRIS COUNTY, TEXAS, BEFORE A RETIRED JUDGE OR JUSTICE. IF WE ARE UNABLE TO AGREE ON A RETIRED JUDGE OR JUSTICE, EACH PARTY WILL NAME ONE RETIRED JUDGE OR JUSTICE AND THE TWO NAMED PERSONS WILL SELECT A RETIRED JUDGE OR JUSTICE WHO WILL ACT AS THE SOLE ARBITRATOR.

The parties shallbe entitled to take discovery in accordance with the provisions of the Texas Codeof Civil Procedure, but either party may request that the arbitrator limit the amount orscope ofsuch discovery, and in determining whether to do so, the arbitrator shall balance theneed for the discovery againstthe parties'mutual desire to resolve disputes expeditiously and inexpensively.

In the event legal action is needed to collect fees andcosts incurred but not paid, the prevailing parry in such an action shallbe entitled to receive the legal fees and costs incurred in that proceeding in addition to any other relief ordered by the arbitrator or court.

Confirmation ofAgreement:

By countersigning below, you acknowledge that you have carefully read this Agreement, that you understand that I cannot advise you concerning it, and that you havethe rightto consult outside counsel concerning thisAgreement; accordingly, you have either consulted with such outsidecounselor, without having consulted such outsidecounsel,are satisfiedthat you fully understand and agree to this Agreement. If the foregoing correctly reflects our mutual understanding, please so indicate by signing the enclosed copy of this letter and returning it to us inthe enclosed envelope. Please be sure to retain a copy ofthis Agreement for your files.

I am verypleased to represent you and thank you again for yourconfidence in us. I am looking forward to working with you.

Very truly yours,

THE LAW OFFICES OF ANDRE EVANS & ASSOCIATES, P.L.L.C.

Andre D. Evans

/ 7-%-!,£

Client (Signature/Date)

--Print Page 1of 1

Subject: Application Request

From: Melissa.Fowler@heahealthcare.com (Melissa.Fowler@hcahealthcare,c6rti) To: niinelsonmd@yahoo.com; •

Date: Wednesday, December 31, 2014 9:07 AM

Hello Dr. Nelson,

Attached is the applieation you've requested, this will be the same packet for your assistant surgeon.

Thank you,

Melissa Fowler

Conroe Regional Medical Center

Medical Staff Assistant

Ph.936-539-7415

Email Melissa.cortinas@hcahealthcare.com

https://us-mR4.mail.yahoo.corn/neo/launch?.rand=06r)70d7k-fi5Sp.s nfti/oni/)

EXHIBIT A

AriDreEvans

& ASSOCIATES

ATTORNEYS AT LAW

A PROFESSIONAL LIMITED LIABILITY COMPANY 3003 SOUTH LOOP WEST, HOUSTON, TEXAS 77054

ANDRE D. EVANS Telephone: 832304.1059 E-mail: Andre@attofneyandreevans.com Facsimile: 1-646-304-1054

By Facsimile: (713) 368-9275

July 7, 2015

Harris County District Attorney's Office ATTN: General Litigation Division 1201 Franklin Street Houston, TX 77002

Re: Public Information Request for STATE OF TEXAS vs. NII-OTABIL NELSON, No.: 1372073

To Officer for Public Information:

I am writing pursuant to the Texas Public Information Act, Texas Government Code Ch. 552, to request that you send me a copy of the following information maintained by the Harris County District Attorney's Office:

1. All photographic evidence in your possession regarding Cause No. 1372073A;

2. Any witness statements, including any police reports;

I would appreciate the requested materials at your earliest convenience, and anticipate your response on or before July, 17 2015. Materials may be produced on a rolling basis as they become available. Materials may be sent by e-mail to andre@attorneyandereevans.com, by fax to (646) 304-1054,or by mail to 3003 South Loop West Ste 108, Houston, Texas 77054. I am willing to pay the statutory fee for copying these materials. If the fee exceeds $40.00, please send me a written estimate of costs in advance via fax or email.

Please feel free to contactme if you have any questions. I can be reached at andre@attomeyandereevans.com or (281) 883-8385. Thank you for your assistance in this matter.

Sincerely,

Andre Evans

Andre Evans Mr. Nelson, Below I have attached a copy of your time stamped Motion to Extend Time to File Motion for Rehearing and the Open Records Request that I sent to the District Attorney's Office. Today is th To niinelsonmd@yahoo.com Jul 15 Mr. Nelson,

Below I have attached a copy of your time stamped Motionto ExtendTime to File Motion for Rehearing and the Open Records Request that I sent to the District Attorney's Office. Today is the deadline for filing the motion for rehearing, but I spoke with the clerk withthe FirstCourt of Appeals and she confirmed thatmy motion was timely filed andthat we would not be penalized for not filing a motion by the 15th.

Further, I have begun to draft yourmotion while I am awaiting the records requested, however it seemsthat I will have to incorporate all arguments in favor of granting the motion. Which will take, considerably, much more time to draft than simply arguing that the writ was denied because you did not present a brief. Given such, I will need an additional $2,500, not including the outstanding $500 which is currently due. I sent you a request for the outstanding balance, please submit the payment by Friday.

I have done a considerable amount of research and it appears that, given the present circumstances, you have multiple viable claims to have your motion for rehearing granted. However, most of which depend on the evidence received from the District Attorney's Office. Give me a call tomorrow and let me know how you would like to proceed.

Thank you,

Andre D. Evans, Esq. Andre Evans & Associates, PLLC. 3003 South Loop West, Suite 108 Houston, Texas 77054 Office: 832.941.1282 Direct: 281.883.8385 Fax: 646.304.1054 E: andre@attorncyandrcevans.com

This electronic message transmission, which includes this e-mail message and any attachments, is confidential, for the sole use of the intended recipieht(s) and may contain privileged attorney-client information or work product. Ifyou are not the intended recipient, be aware that any review, disclosure, copying, distribution or use of the contents of this electronic transmission is prohibited. If you have received this electronic transmission in error, please immediately contact the sender by reply e-mail, destroy all hard copies of the original message and attachments and delete same from your system.