                                                                                               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 ,<Sk£>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.


BRANDON JAY CARTER




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

                                    Cause No. 12-DCR-061186


                   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<Tl&::.~:,,7j(
Levy, "Raquel

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


                VS


  BRANDON JAY CARTER



                            Cause No. 12-DCR-061186



  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
