                      NO. PD-1196-15/1197-15

                  In The Court of Criminal Appeals

                                 Of

                                Texas

                  Evan Stuart Fairbanks, Petitioner

                                 Vs.

                     State of Texas, Respondent

             On Petition from the 177th District Court of

                        Harris County, Texas

              Trial Court Cause Nos. 1388074, 1388075

First Court of Appeals Cause Nos. 01-14-00124-CR; 01-14-00125-CR

                  Petition for Discretionary Review


                                            Connie B. Williams
                                            1314 Texas, Suite 710
                                            Houston, Texas 77002
                                            713-225-3700
                                            713-225-3140-Fax
                                            Cbw1710@hotmail.com
October 8, 2015

                               ATTORNEY FOR PETITIONER


                               Petitioner Waves Oral Argument




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                  IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the Trial Court’s final

judgment as well as the names and addresses of all trial and appellate counsel.

Parties                                            Counsel


State of Texas                                     Erik Locascio
                                                   Assist. District Attorney
                                                   1201 Franklin St., Suite 600
                                                   (713) 755-5826


Evan Stuart Fairbanks                              Connie B. Williams
                                                   1314 Texas, Suite 710
                                                   Houston, Texas 77002
                                                   (713) 225-3700


                                Appellate Counsel


Evan Stuart Fairbanks                              Connie B. Williams
                                                   1314 Texas, Suite 710
                                                   Houston, Texas 77002
                                                   (713) 225-3700


State of Texas                                     Erik Locascio
                                                   District Attorney’s Office
                                                   1201 Franklin St., Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826




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                            TABLE OF CONTENTS

                                                                     Page

Identity of Parties & Counsel ……………………………………………02

Index of Authorities ………………………………………………………03

Statement Regarding Oral Argument …………………………………..04

Statement of the Cases………………………………………………….…04

Statement of Procedural History …………………………………………04

Grounds for Review ……………………………………………………….05

  1. The Court of Appeals decision conflicts with the Texas Court of Criminal

        Appeals opinion in Oldham v. State, 977 S.W. 2d 354, 360 (Tex. Crim. App.

        1998)

  2. Abatement is authorized under T.R.A.P. Rule 43.6.

Argument ……………………………………………………………………05

Prayer ………………………………………………………………………..08

Certificate of Compliance …………………………………………………..08

Certificate of Service ………………………………………………………..09

Appendix …………………………………………………………………….10

                           INDEX OF AUTHORITIES

Cases                                                               Page

Jack v. State, 149 S.W. 3d 119 (Tex. Crim. App. 2004)………………….…05


                                         3
Oldham v. State,      977 S.W. 2d 354 (Tex. Crim. App. 1998)…………..06

Rules

T.R.A.P. Rule 2 ………………………………………………………….6, 7

T.R.A.P. Rule 43.6 ………………………………………………………5, 6, 7

                           STATEMENT REGARDING
                              ORAL ARGUMENT

                         Petitioner Waives Oral Argument

                          STATEMENT OF THE CASES

        These are controlled substances cases in which Petitioner, upon the

erroneous advice of trial counsel, pled guilty. (C.R. pg. 29) (In this petition C.R.

designates Clerk’s Record and R.R. designates Reporter’s Record). Petitioner filed

a motion to withdraw guilty plea, (C.R. pg. 39) a Motion for New Trial, (C.R. pg.

53), and an amended Motion for New Trial (C.R. pg. 71). The motions were denied

by the trial court.

                  STATEMENT OF PROCEDURAL HISTORY

        The First Court of Appeals affirmed Petitioner’s convictions by a

memorandum opinion issued July 28, 2015.

        Petitioner filed a Motion for Rehearing on August 11, 2015. Petitioner’s

Motion for Rehearing was denied on August 19, 2015. Petitioner sought and was

granted an extension to file his petition for discretionary review.



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                            GROUNDS FOR REVIEW

   1. The Court of Appeals decision conflicts with the Texas Court of Criminal

      Appeals opinion in Oldham v. State, 977 S.W. 2d 354, 360 (Tex. Crim. App.

      1998).

   2. Abatement is authorized under T.R.A.P. Rule 43.6.

                                   ARGUMENT

      The Court of Appeals fails to explain how Rule 43.6 TRAP, and the Court of

Criminal Appeals statement in Oldham v. State, infra, is not authority to abate the

appeals under the specific facts of these cases.

      The Court’s reliance on Jack v. State, 149 S.W. 3d 119 (Tex. Crim. App.

2004) is misplaced.

      The Jack v. State, trilogy, 42 S.W. 3d 291 (Tex. App. – Houston [1st Dist.]

2001); 64 S.W. 3d 694 (Tex. App. Houston [1st. Dist.] 2002) and 149 S.W. 3d 119

(Tex. Crim. App. 2004) disavowed this abatement of an appeal to allow the

defendant the opportunity to rebut the rebuttable presumption that he was

effectively represented by trial counsel when defendant let the 30 day period

to file a motion for a new trial lapse without filing a motion.

      The Court of Criminal Appeals in Jack v. State, supra, albeit in judicial

dictum, criticized the “double abatement” procedure used in Jacks I & II.




                                          5
         The facts in this case are clearly distinguishable from the facts in Jack. Here

the Petitioner was represented by counsel, timely filed a motion for new trial and

was having a hearing on his motion for new trial.

         The abatement sought in these cases is solely to obtain the testimony of trial

counsel, and is not a general trolling for evidence, and does not establish a new

appellate procedure.

         Petitioner is relying on Rule 43.6 TRAP in seeking the abatement of these

cases.

         The Texas Court of Criminal Appeals in Oldham v. State, 977 S.W. 2d 354

(Tex. Crim. App. 1998) states at page 360:

         “… We should not be understood as restricting a court of appeals power to

abate an appeal and remand a case under authority other than Rule 2(b). When

judicial resources can be conserved in the interest of justice, we encourage the

courts of appeals to adopt and continue to use methods for resolving issues sooner

rather than later as long as such methods are legally endorsed …” (Emphasis

Added).        The current Rule 2 T.R.A.P. does not preempt abatement in this case

“to expedite a decision”.

         The Court of Criminal Appeals in Oldham v. State, supra, at page 360 note 4

referenced an argument made in Tuffiash v. State, 878 S.W. 2d 197, 201 n 2. (Tex.

App. - San Antonio 1994).


                                            6
The reference note argument is apropos to Petitioner’s motion to abate and states:

      “2. If there is merit to Appellant’s contentions, hearing and granting a

motion for new trial at this point is certainly more efficient than requiring this

court of criminal appeals to consider an incomplete appeal, then requiring

appellant to seek post-conviction relief (which again taxes the resources of the

court of criminal appeals) to obtain a new trial many years from now. If there is no

merit to appellant’s contentetion, it is also most efficient to establish that fact now

and allow it to be raised on direct appeal following the denial of the motion for

new trial. We stress that we take this position only in cases where the failure to

raise the issue in a timely motion for new trial was not due to appellant’s lack of

diligence.”

      Again Petitioner’s motions to abate are sought under the authority of TRAP

Rule 43.6 and not under Rule 2, although the current version of Rule 2 does not

preempt Petitioner’s request to abate.

      Abatement of these appeals is within both the letter and spirit of the Oldham

mandate of “resolving issues sooner than later.”

      The Texas Supreme Court has held with respect to the appellate rules in

Lone Star Gas v. Railroad Conm’n, 767 S.W. 2d 709, 710 (Tex. 1989) (per

curiam):




                                           7
      “… The rules do mandate full consideration of all issues raised to move the

case as far as possible toward final disposition…”

                             PRAYER FOR RELIEF

      Wherefore, Petitioner prays that the Court abate these appeals and remand

these cases to the trial court and to direct the trial court to take whatever action it

deems necessary or appropriate to have former trial counsel, Jill Rekoff appear and

testify regarding Petitioner’s motion for new trial allegation of ineffective

assistance of counsel.

                                                     Respectfully submitted,



                                                   /s/ Connie B. Williams
                                                   Connie B. Williams
                                                   1314 Texas, Suite 710
                                                   Houston, Texas 77002
                                                   713-225-3700
                                                   713-225-3140-Fax
                                                   Cbw1710@hotmail.com
                                                   TBN 21521500
                                               ATTORNEY FOR PETITIONER


                         CERTIFICATE OF COMPLIANCE

       In accordance with Rule 9.4 (i) TRAP, I hereby certify that the foregoing
Petition for Discretionary Review contains 1262 words.

                                                            /s/ Connie B. Williams
                                                            Connie B. Williams



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                        CERTIFICATE OF SERVICE

      This is to certify that on October 7, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney’s Office, Harris

County, Texas by facsimile transmission to 713-755-6865.

                                                        /s/ Connie B. Williams
                                                        Connie B. Williams




                                        9
              APPENDIX

            First Court of Appeals

Memorandum Opinion issued July 28, 2015




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