                                                                  WR-83,286-01,02
                                                                      WR-83,286-0
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                          Transmitted 5/14/2015 5:36:06 PM
                                                           Accepted 5/15/2015 10:47:17 AM
                                                                            ABEL ACOSTA
                     DOCKET NO. __________                                          CLERK

                              IN THE                         RECEIVED
                    COURT OF CRIMINAL APPEALS         COURT OF CRIMINAL APPEALS
                                                              5/15/2015
                        AT AUSTIN, TEXAS                 ABEL ACOSTA, CLERK



                           IN RE:
                     BRANDON JAY CARTER,
                           Relator


       PETITION FOR WRIT OF MANDAMUS AND
             FOR WRIT OF PROHIBITION


                  Trial Cause No. 12-DCR-061186
               th
     In the 240 Judicial District Court of Fort Bend County, Texas
              Honorable Thomas R. Culver III, Presiding


D. Chris Hesse # 24049081
112 West 8th Avenue, Suite 301
Amarillo, Texas 79101
Tel: (806) 350-6785
Fax: (806) 350-6786
Chris@PanhandleCriminalDefense.Attorney
Attorney for Relator,
Brandon Jay Carter

Michael Mowla #24048680               L.T. “Butch” Bradt #02841600
445 E. FM 1382 #3-718                 14015 Southwest Freeway, Suite 4
Cedar Hill, Texas 75104               Sugar Land, Texas 77478-3500
(972) 795-2401                        (281) 201-0700
Fax: (972) 692-6636                   Fax: (281) 201-1202
michael@mowlalaw.com                  ltbradt@flash.net
Of counsel to Relator                 Of counsel to Relator
            IDENTITIES OF PARTIES AND COUNSEL

Relator: Brandon Jay Carter

Counsel for Relator:

David Christopher Hesse # 24049081
112 West 8TH Avenue, Suite 301
Amarillo, Texas 79101
Tel: (806) 350-6785
Fax: (806) 350-6786
Chris@PanhandleCriminalDefense.Attorney

L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net

Michael Mowla #24048680
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
(972) 795-2401
Fax: (972) 692-6636
michael@mowlalaw.com

Respondent:

Honorable Thomas R. Culver, III
240TH Judicial District Court
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3E
Richmond, Texas 77469
(281) 341-8600
Becky.Fisher@fortbendcountytx.gov



                                    i
Real Parties In Interest:

State of Texas

Counsel for the State of Texas:

Honorable John F. Healey, Jr., District Attorney
Gail Kikawa McConnell, Ass’t District Attorney
301 Jackson Street, Room 101
Richmond, TX 77469
(281) 238-3205
Fax: (281) 238-3340
Gail.McConnell@fortbendcountytx.gov

Harris S. Wood, Jr. #21894400
701 North Post Oak Road #425
Houston, Texas 77024
(281) 924-5876
Fax: (281) 579-1586
hwoodatty@yahoo.com




                                     ii
                                  TABLE OF CONTENTS
                                                                                                  Page


IDENTITIES OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        QUESTION NO. ONE: Does the power of the trial court to appoint
            counsel to represent indigent defendants carry with it the
            concomitant power to remove counsel at the judge’s discretionary
            whim, without a request from the defendant and without a
            hearing? If not, will mandamus issue to cause Respondent to set
            aside his order appointing Harris S. Wood, Jr. to represent Relator?
            ..................................................... 2

QUESTION NO. TWO: When a defendant is seeking mandamus relief to set
    aside an order appointing new counsel, will a writ of prohibition issue
    to stay proceedings in the trial court to thereby prevent interference
    with the jurisdiction of the Court of Appeals?.. . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND AUTHORITY .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

QUESTION NO. ONE RESTATED: The power of the trial court to appoint
    counsel to represent indigent defendants does not carry with it the
    concomitant power to remove counsel at the judge’s discretionary whim

                                                   iii
        and without a hearing. Mandamus should issue to cause the order
        removing counsel to be vacated... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        Entitlement to Writ of Mandamus:. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

QUESTION NO. TWO RESTATED: A Writ of Prohibition should issue to
    prohibit Respondent from holding any hearings on the case until such
    time as the application for writ of mandamus shall have been
    determined... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

        Entitlement to Writ of Prohibition:. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                       iv
                                   TABLE OF AUTHORITIES
                                                                                                             Page

Federal Cases

Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . . 8


State Cases

Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . 9

De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)
............................................................... 9

Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). . . . . . . . . . . . . . 6

Gaia Environmental, Inc. v. Galbraith, 451 S.W.3d 398 (Tex. App. –
Houston [14TH Dist.] 2014, review denied)... . . . . . . . . . . . . . . . . . . . . . . . . . 6

Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . 9

Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941 (Tex. App. – Dallas 1982,
orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re Kuntz, 124 S.W.3d 179 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984). . . . . . . . . . . . . . . . . . . 9

Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App.2003) (orig.
proceeding) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8



                                                          v
Simon v. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009) (orig.
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989)... . . . . . . 7-9

Walker v. Packer, 827 S.W.2d 833 (Tex.1992). . . . . . . . . . . . . . . . . . . 8, 9

West v. Solito, 563 S.W.2d 240 (Tex. 1978). . . . . . . . . . . . . . . . . . . . . . . . 9


State Statutes

Art. 1, § 10, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Article V, § 1, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


U.S. Constitution

Amendment V, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Amendment VI, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Amendment XIV, U.S. Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 8




                                                         vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Relator, Brandon Jay Carter, shows:

                      STATEMENT OF THE CASE

      The underlying suit (Cause No. 12-DCR-061186 in the 240TH Judicial

District Court) is an indictment alleging burglary of a habitation with intention

to commit a sexual assault. On December 10, 2012, David Christopher Hesse

was appointed to represent Relator. Relator pleaded “not guilty,” and the first

trial of the case resulted in a hung jury. This hung jury caused a mistrial to be

declared by the trial court on February 26, 2015. Although Relator had not

expressed any dissatisfaction with or even any desire to have Hesse removed,

on March 2, 2015, Respondent sua sponte signed an order that removed

Hesse and appointed Harris S. Wood, Jr. to represent Relator. After the

Relator filed his Petition for Writ of Mandamus in the First Court of Appeals,

the Respondent signed an Amended Order removing David Christopher Hesse

and appointing Harris Wood, Jr..

      The case is now set on the court’s docket for June 1, 2015 at 1:30 p.m..

                    STATEMENT OF JURISDICTION

      This Petition is brought pursuant to, and this Court has jurisdiction of

this Petition pursuant to Article V, § 1, Texas Constitution.



                                       1
      This Petition is also brought under the Fifth, Sixth, and Fourteenth

Amendments of the United States Constitution. And this Petition is brought

under Art. 1, § 10, Texas Constitution.

                       QUESTIONS PRESENTED

QUESTION NO. ONE: Does the power of the trial court to appoint counsel

to represent indigent defendants carry with it the concomitant power to

remove counsel at the judge’s discretionary whim, without a request from the

defendant and without a hearing? If not, will mandamus issue to cause

Respondent to set aside his order appointing Harris S. Wood, Jr. to represent

Relator?

QUESTION NO. TWO: When a defendant is seeking mandamus relief to set

aside an order appointing new counsel, will a writ of prohibition issue to stay

proceedings in the trial court to thereby prevent interference with the

jurisdiction of the Court of Appeals?

                        STATEMENT OF FACTS

      Relator was indicted for burglary of a habitation with intention to

commit sexual assault. A true and correct copy of that indictment is attached

hereto, marked Appendix 1, and incorporated by reference for all purposes.

Relator denies the allegations of that indictment. Relator denies the



                                        2
allegations of that indictment.

      On December 10, 2012, David Christopher Hesse was appointed to

represent Relator in Cause No. 12-DCR-061186 in the 240TH Judicial District

Court. A true and correct copy of that order is attached hereto, marked

Appendix 2, and incorporated by reference for all purposes.

      Trial of this case was held from February 16, 2015 to February 26, 2015.

On February 26, 2015, because of a hung jury, a mistrial was declared. A true

and correct copy of the docket sheet is attached marked Appendix 3, and

incorporated by reference for all purposes.

      On March 2, 2015, Respondent removed David Christopher Hesse as

Relator’s attorney and appointed Harris S. Wood, Jr. to represent him. A true

and correct copy of that order is attached and marked Appendix 4, and

incorporated by reference for all purposes. No hearing was held before

Respondent signed the order removing David Christopher Hesse as counsel

for Relator.

      Relator has not requested new counsel and, indeed, wishes for David

Christopher Hesse to continue to represent him. See Relator’s Declaration

which is attached and incorporated herein as Appendix 5.

      David Christopher Hesse did not find out about the order removing him



                                      3
until he received a call from Harris S. Wood, Jr. on March 4, 2015. See

Declaration of David Christopher Hesse attached hereto and incorporated

herein as Appendix 8.

      On March 13, 2015, Respondent signed an Amended Order removing

David Christopher Hesse as Relator’s attorney and appointing Harris S. Wood,

Jr. to represent him. A true and correct copy of that order is attached and

marked Appendix 6, and incorporated by reference for all purposes. No

hearing was held before Respondent signed the amended order removing

David Christopher Hesse as counsel for Relator.

      Relator sought mandamus relief from the First Court of Appeals, which

denied relief. See Appendix 7, attached hereto and incorporated herein. The

instant application results.

                    SUMMARY OF THE ARGUMENT

      A trial judge acts without reference to guiding authority and violates the

defendant’s Due Process rights when, without a request from the defendant

and without a hearing, the judge removes appointed counsel from

representing an indigent defendant and appoints new counsel. Mandamus

will issue to require the trial judge to set aside that order. Mandamus relief is

available to address this abuse of discretion as Relator has no adequate



                                       4
remedy by appeal and is entitled to mandamus relief.

      A writ of prohibition should issue to prohibit Respondent from taking

any further action on the underlying case until this appellate proceeding is

concluded.

                    ARGUMENT AND AUTHORITY

QUESTION NO. ONE RESTATED: The power of the trial court to appoint
   counsel to represent indigent defendants does not carry with it the
   concomitant power to remove counsel at the judge’s discretionary whim
   and without a hearing. Mandamus should issue to cause the order
   removing counsel to be vacated.


      Relator’s right to counsel implicates his rights under the under the Fifth,

Sixth, and Fourteenth Amendments of the United States Constitution. It also

implicates his rights under Art. 1, § 10, Texas Constitution.

      Relator’s right to be heard before his appointed counsel is removed also

implicates his Due Process rights under the Fourteenth Amendment of the

United States Constitution.

      As shown by his Declaration, Relator is not dissatisfied with his attorney

and has not requested new counsel to be appointed. As no request for new

counsel was made and since no hearing was held, it is clear that Respondent

issued the orders sua sponte.

      The “reasons” that Respondent recites in the Amended Order (Appendix

                                       5
6) do not afford grounds for removing appointed counsel without a hearing.

The amended order appears to be an “after-the-fact” attempt to justify the

unjustifiable.

         The recitation in the amended order of Hesse’s request to be removed

from the case relates to what transpired during trial in front of the Honorable

Lee Duggan, Jr. and was necessitated by his failure to follow the procedure

that this Court established as relates to an attorney’s contempt.1

         In Pink, this Court established the procedure to be used when an

attorney is to be held in contempt in a trial.2 When a trial judge does not follow

the procedure set forth in Pink and threatens to hold an attorney in contempt

during trial, that creates a conflict of interest for the attorney. This conflict is

between the attorney’s duty to zealously and aggressively represent his client3

and being able to afford only “tentative representation, not the zealous

representation that our profession rightly regards as an ideal and that the

public has a right to expect”4 because of the threat of being held in contempt.



         1
                Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). …
         2
                Ex parte Pink, 645 S.W.2d 262 (Tex. Crim. App. 1982). …
         3
                 Gaia Environmental, Inc. v. Galbraith, 451 S.W.3d 398, 407 (Tex. App. – Houston
[14TH
        Dist.] 2014, review denied). …
         4
                Gaia, 451 S.W.3d at 403. …

                                                6
Such a situation forces counsel to divide his loyalty between his duty to his

client and his concerns that he may illegally deprived of his liberty. It was

those concerns that prompted David Christopher Hesse to move for a mistrial

and to request being withdrawn during trial.

      That concern has passed in that nothing that David Christopher Hesse

does at this point can cause him to again be held in contempt for aggressively

and competently representing his client. Trial was before a visiting judge and

counsel presumes that Respondent or the next judge will properly follow the

procedure set forth in Pink.

      The fact that there is a contempt proceeding pending against counsel

does not change that fact or afford grounds to remove counsel.

      Respondent’s Right to Remove Counsel:

      This Honorable Court has held “[T]hat the power of the trial court to

appoint counsel to represent indigent defendants does not carry with it the

concomitant power to remove counsel at his discretionary whim.”5 This Court

further noted that, “the trial court did not have the inherent power to validly

remove appointed counsel and doing so patently violated the relator’s right to




      5
            Stearnes v. Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989). … …

                                          7
counsel.”6

       But that is what the Respondent did.

       Due Process Concerns:

       The Supreme Court has held that the “fundamental requirement of due

process is the opportunity to be heard “at a meaningful time and in a

meaningful manner.”7

       But Relator was denied the opportunity to even be heard before his

attorney was removed – originally or in the amended order.

       Entitlement to Writ of Mandamus:

       This Court has mandamus jurisdiction in criminal-law matters.8

       Mandamus is an extraordinary remedy. Mandamus will issue only to

correct a clear abuse of discretion or the violation of a duty imposed by law.

Mandamus relief is available if the trial court violates a duty imposed by law.9

A writ of mandamus will issue to correct trial court actions when there has

been a clear abuse of discretion, particularly where the remedy by appeal is



       6
              Stearnes, 780 S.W.2d at 223. …
       7
              Mathews v. Eldridge, 424 U.S. 319, 333 (1976). …
       8
               Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex. Crim. App. 2003) (orig. proceeding)
(per curiam). …
       9
              Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). …

                                               8
inadequate.10 A trial court abuses its discretion if it acts without reference to

any guiding rules and principles or if the trial court’s act is arbitrary or

unreasonable.11 “A trial court has no discretion in determining what the law

is or applying the law to the facts.”12 The “trial court’s erroneous legal

conclusion, even in an unsettled area of law, is an abuse of discretion.”13

       A writ of mandamus will issue to correct trial court actions when there

has been a clear abuse of discretion, particularly where the remedy by appeal

is inadequate.14 This Court has previously held that the remedy by appeal in

a situation such as this is inadequate.15

       But that is exactly what Respondent has done. He has violated the law

as laid down by this Court in Stearnes v. Clinton,16 by removing appointed


       10
               In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003); Ayres v. Canales, 790 S.W.2d 554,
556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d
240, 244 (Tex. 1978); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992); Jampole v. Touchy, 673
S.W.2d 569, 572 (Tex. 1984). …
       11
              Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). …
       12
             Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996)(citing Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992)). …
       13
              Id. …
       14
              Ayres v. Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d
343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978). …
       15
              Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989). …
       16
              Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989). …

                                              9
counsel without a hearing and on his whim. And in so doing, he has acted

directly in contravention of controlling precedent to interfere with the

attorney-client relationship that exists between Relator and David Christopher

Hesse. Mandamus should issue to set aside this order.

QUESTION NO. TWO RESTATED: A Writ of Prohibition should issue to
   prohibit Respondent from holding any hearings on the case until such
   time as the application for writ of mandamus shall have been
   determined.


      Respondent has set the case on the trial court’s docket on June 1, 2015,

at 1:30 p.m.. As it presently stands, David Christopher Hesse has been

removed as Relator’s attorney and has no right to represent Relator at that

hearing. Relator does not know whether this Court can rule on this application

before that time.

      Entitlement to Writ of Prohibition:

      The writ of prohibition is an extraordinary judicial writ that may be

issued by a Court of Appeals, as a court of superior jurisdiction, directed to a

court of inferior jurisdiction. Its purpose may be to prevent an inferior

tribunal from exercising a jurisdiction that it has no lawful right to exercise.

The writ of prohibition as used in Texas has three principal functions: (1)

preventing interference with the higher courts in deciding a pending appeal;



                                      10
(2) preventing an inferior court from entertaining suits which will relitigate

controversies which have already been settled by the issuing court; and (3)

prohibiting a trial court’s action when it affirmatively appears that the court

lacks jurisdiction.17

       Mandamus and prohibition are available in a criminal proceeding if the

relator shows that: (1) the act he seeks to compel or prohibit does not involve

a discretionary or judicial decision; and (2) he has no adequate remedy at law

to redress the harm that he alleges will ensue.18 The first prong requires the

relator to show that he has a clear right to the relief sought, meaning that the

facts and circumstances dictate only one rational decision under unequivocal,

well-settled, and clearly controlling legal principles.19 When a relator seeks

extraordinary relief that amounts to the undoing of an accomplished judicial

act, that relief is more in the nature of mandamus than prohibition.20

       Any attempt by Respondent to force the underlying case to hearings or



       17
              Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941, 943 (Tex. App. – Dallas 1982, orig.
proceeding). …
       18
              Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding);
see also In re State ex rel. Weeks, 391 S.W.3d 117, 122–23 (Tex. Crim. App. 2013) (orig.
proceeding); De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding). …
       19
              Simon, 306 S.W.3d at 320. …
       20
              Id. at 320 n. 2. …

                                              11
to trial will interfere with this Court’s jurisdiction and will deprive Relator of

the right to have the impropriety of the challenged order removing David

Christopher Hesse determined before he is subjected to hearings or a trial

hereunder.

      A writ of prohibition should issue to prevent the Respondent from

taking any action to proceed to hold hearings or to proceed to trial on the

indictment against Respondent.

                               CONCLUSION

      This Court should hold that Respondent abused his discretion when,

without a hearing, he removed David Christopher Hesse as Relator’s attorney

and appointed Harris S. Wood, Jr. to represent Relator. This Court should

further hold that a writ of prohibition is necessary to prevent the Respondent

from proceeding to trial on the indictment against Relator. This Court should

thereafter issue its writs of mandamus and prohibition in conformity with the

allegations of this Petition and the Court’s findings. This Court should grant

Relator general relief.




                                       12
                           Respectfully submitted,

                           /s/ D. Chris Hesse
                           David Christopher Hesse
                           S.B.O.T. # 24049081
                           112 West 8th Avenue, Suite 301
                           Amarillo, Texas 79101
                           Tel: (806) 350-6785
                           Fax: (806) 350-6786
                           Chris@PanhandleCriminalDefense.Attorney
                           Attorney for Relator, Brandon Jay Carter

Of Counsel:

L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net

Michael Mowla #24048680
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
(972) 795-2401
Fax: (972) 692-6636
michael@mowlalaw.com




                                   13
                       CERTIFICATE OF SERVICE

       I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Petition was delivered to:

Honorable Thomas R. Culver, III
240TH Judicial District Court
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3E
Richmond, Texas 77469
Becky.Fisher@fortbendcountytx.gov

John F. Healey, Jr., District Attorney
Gail Kikawa McConnell, Ass’t District Attorney
1422 Eugene Heimann Circle
Richmond, TX 77469
Gail.McConnell@fortbendcountytx.gov

Harris S. Wood, Jr.
701 North Post Oak Road #425
Houston, Texas 77024
Fax: (281) 579-1586
hwoodatty@yahoo.com

      On May 14, 2015.



                                           /s/ D. Chris Hesse
                                           D. Chris Hesse




                                      14
                   CERTIFICATE OF COMPLIANCE

      This is to certify that, using the word count feature of WordPerfect X7,
the total number of words in the Petition is 2138, except in the following
sections: caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of questions presented, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix. This
document also complies with the typeface requirements because it has been
prepared in a proportionally-spaced typeface in 14-point Georgia and the
footnotes are in a proportionally-spaced typeface in 12-point Times New
Roman.

                                    /s/ D. Chris Hesse
                                    David Christopher Hesse




                                     15
APPENDICES




    16
APPENDIX 1
           THE STATE OF TEXAS                                                                           Amanda Bolin
                                                                                                        30.02 {d}
                                                                                                        22990007

                  vs
           BRANDON       JAY~~ER
                             ,_/   //



           D.O.B.:                                                       CONTROL NO: 12-006209

           FELONY                            7ION           INTEND    ARREST DATB: Not arrested on this charge


                                                                      OPPBNSE DATE: September 26, 2011

                                                                      AGBNCY/AGBN'CY NO: FORT BEND COUNTY SHERIFF'S
                                                                      OFFICE/ 110025389

           BAJ'.L AMOmrl':                                            PRJ'.OR CAUSE NO;

                TED:                             /                    CO-DEF:
                                        [/   '       _,/'       ~


           IN THE NAME AND BY           ~'Uf'Ho(r7YOF,~ STATE              OF TEXAS:

           The duly organized Grand ~ury of /tojt /~en/;~unty, Texas, presents in the
           District Court of Fort B~n~~· T~x'a'S, ~tn t in Fort Bend County,
           Texas, BRANDON JAY CARTER~··'11~ter ./sixlfd     Defendant, heretofore on
           or about September 26, 2011, did t;i:re~~n)sl~h~ntentionally or knowingly
           enter a habitation, without the~:Y=(ctive)con~t\of Larissa Treybig, the
           owner thereof, and attempted tb'-96mmit                    9r
                                                       c?\~itf:j<l\ the felony offense of
           sexual assault;                     / / ./ / ·/A \ /

                                                                    v/~
                                                                      //             ~~

                                                                     v/v/~.'\
                                                                                /
                                                                                (
                                                                                               (\)I

                                                                           \. \"'--_____...,      ~                A
                                                                             ~___)             / //                ~t':11tancourt
                                                                                            c~,, ~ ~"
                                                                                       <;//~~d
                                                                                         'v     \{~ ~~;.-
                                                                                               ( (~",~Ji )~
                                                                                                      ~1>~~:
                                                                                                ~~:Yw@5~~
           AGAINST THE PEACE AND DIGNITY OF THE STATE.                                                -z~,,~~/~;~
                                                                                                        / / -
12-0CR-001181!
                                                                                                       <v/          i~
                                                                                                                                    (,.)




11110!
Indictment
203lll36



~II                                                                  (ORIGINAL/DA)
APPENDIX 2
4




                              ORDER APPOINTING COUNSEL

                                     cause No.12-ocR-061186   -2'/oril




    Upon determination ~y                                          indigent, DAVID
    CHRISTOPHER HES                                                BRANDON JAY
    CARTER.


    December 10, 2012




    vlu!r.~ ~. ~Ji..
      ,A   /




    Presiding Administrative Judge




                  FILED
                                                                 12-0CR-A61186
                                                                 OftAP
               20 lZDEC 12 PH 2: I4                              Order Appol1



               ~~~                                               illlllll\11111111
                CLERK DISTRICT COURT
                 fGRi r;rno C0 . TX
APPENDIX 3
        12-DCft-!ltl116&
        DOSH
        Oom!Slleet
        Zl7ll41M!
                                                               CRIMINAL DOCKET
        ~111111111111111~1~                                                                                                                      CAUSE NO:   12~DCR..061186


          COURT NO.                   1        STYLE OF CASE              ATTORNEYS
         240th Judicial                                                                                                                                by Indictment
                                                                DISTRICT ATIORNEY
         District Court                   THE STATE OF TEXAS
        DATE OF FILING                       VS
.   MONTH            DAY       YEAR       BRANDON JAY CARTER
    -     August 20, 2012




        DATE OF ORDERS
                     DAY   I   YEAR



                                                                                                              ------------111-------------·-------~11



        \~                                                            ~~:t\~)l:,,UU\)   '-'-~-¥'o,)ll\>:l-Bl.,.   ,,.,,. ..   11. B   lllo   ~   Ill
                                                                                                                ORDERS OF COURT




      (



                                                                                                                            ,,,,... ...-~ ..


111       1   i---   1   '°,........   ,_~   ·-   $""   T'   ,--,. ....   -r   r""'""    ~,.;... -       "' i..;;<                             ~~~~~~~~-·--!~~~~--~-·




                                                                          """''   \   --~                ···---------
                                                                                                                        ---------·-----·                 1111

                                                                               ~        { • iJV,KK"'I.                                               ----111--------------------



                                                                                      VI • v                                                             II                        II
                                              - - .                                                                         -----·-···                   I--                       II
                                       CRIMINAL DOCKET

 COURT NO.             STYLE OF CASE
240th Judicial
District Court   THE STATE OF TEXAS
                                                         .   . .                                 II
                    VS




                                                                   II~---·--------··--··--·-··
                            DOCKET                               CAUSE NO.



                                                                             MONTH   I DAY I   YEAR
                                     T'1.,..I....
                                                    FLAINTil'F



                      vs.
     L-\7..Wl"'C'TU




('
              I       ;:::
                      0
                                          z
                                          9
              Ir>     ~ 01
                      :i:       ~I
              !~      ~~I
              vJ      '< 0
                                ::!l
                                0
                                m

              if\
                  -   -<
                      m w
                      )>
                                :ll

                      ::!l




                          0
                          ::D
                          0
                          m
                          ::D
                          (/}
                        0
                          '1
                          0
                          0
                          c
                        :i:i
                        ()
                        0
                          ~
                          z
                          c:
                          rn
                          0




                                ;:::
                                6
-t--f--+---,1---1-1--1           el
                                ";:::r=
                                                     CRIMINAL DOCKET

    OURT NO.         1          STYLE OF CASE                   ATTORNEYS
  240th Judicial
                                                      DISTRICT ATTORNEY
  District Court         THE STATE OF TEXAS
 DATE OF FILING             VS
MONTH   DAY   YEAR       ()       . 1    f" __ _
                         0 RA-Nt:>ON     ~71'..a..
I   I




        I   I


        II
APPENDIX 4
12-0Cll-061186
OllOEll
Order
345U'15


~II                   !Ill
       /
\ \\                               R TO SUBSTITUTE COUNSEL

      ~                      2 ___
                     YI"L~"-...      '\
                                      \

                 l             )          \




      BRAND~NJ~~
                             \~2~86
      Upon determination by the Court t       t~~igent,
                                              7--   ~--~y-;v




                                                          /'\




      Date: March 02, 2015

                                                      (         )l   <)
                                                      ~~
                                                       /\ r; ~\


                                                                >~
From:                               levy, Raquel
Sent                           /    Monday, March 02, 2015 3:55 PM
To:                        /        'hwoodatty@yahoo.com'
Subject     /        /              FELONY APPOINTMENT - CERTIFICATE OF CONTACT
Attachmen • /                       CERTIFICATE OF CONTACT.doc

           I!                      /'
DearCou~I~~
You have been                              represent:




                                   ~)
Name:


DOB:
                  04/25/1991          ~~
Address:          802    Vestabe~ I /~
                  Houston, Tx 77073 / ) \

Phone:            281-232-6744
                                        ~L)) ~
Charge:           Burglary Habitation Intend   5exoif(nse       #1 -    ~
Court Date:       4-6-15@ 1:30 PM IN THE 240TH           CT COUR           /\. \,     ·~
                                                                /' /            '->       'v>
If the defendant has made bond, they may be reached          af'th~dress ~ne otherwise they will be in the Fort Bend
County Jail. As you are aware it is your responsibility to   ~e eve ~b~ effort to contact the defendant by the
end of the next working day after today. Failure to comply w·          thi 'fesp      1 1tY     ay result in your replacement as
counsel for the defendant pursuant to Art. 26.04(1<} of the Co          f Cri   ma~i>\
                                                                           (    (               .
Please reply to this email IMMEDIATELY and acknowledge your            rece~t ~receiving.()
                                                                                \. ~                        ,../")
Raquel Levy                                                                       ~-          //
Administrative Court Services                                                              / /  \
Indigent Defense Coordinator                                                          /      ,  ~
301 Jackson St.                                                                       \,/       /~~\)
Richmond, Tx77469                                                                        ( /\ ' )
                                                                                                                                 />
2s1-341-31so
FAX #281-238-3224
Raguel.Lev~@fortbendcountvtx.gov
                                                                                              \,\ ,

                                                                                                    y        '------
                                                                                                                       "'v/j



                                                                                                                       ;i
                                                                                                                          /  /
                                                                                                                                 /   /


                                                                                                :t
                                                                                                    ,/'¥·-~~""'   <




                                                                 1
APPENDIX 5
                         UNSWORN DECLARATION
                             CPRC § 132.001

       "My name is Brandon Jay Carter, my date of birth is April 25 111 , 1991, and my address is

1410 Ransom Road, Richmond, Texas 77469.           l declare under penalty of perjury that the

following is true and correct

       I want Attorney David Christopher Hesse to remain as my court appointed attorney in

Cause# 12DCR61186 in the 240 111 District Court, Fort Bend County, Texas. I never asked for

another counsel in this matter."


EXECUTED in Fort Bend County, State of Texas on the 4th day of March, 2015.




                                            Declarant
APPENDIX 6
                                                             12-DCR-061186
                                                            ORDER
                                                            Order
                                                            3471820



                                No. 12-DCR-061186

THE STATE OF TEXAS                       §   IN THE 240TH JUDICIAL
vs                                       §   DISTRICT COURT OF

BRANDON JAY CARTER                       §   FORT BEND COUNTY, TEXAS

      AMENDED ORDER TO SUBSTITUTE APPOINTED COUNSEL
      On March 2, 2015, the Presiding Administrative Judge, James H. Shoemake,
upon the request of Thomas R. Culver, III, the elected judge of the 240th District
Court, entered an Order appointing Harris S. Wood, Jr. to defend Defendant,
Brandon Jay Carter. In accordance with this Court's docket entry, the Court
Administration Coordinator issued a notice substituting Mr. Wood for appointed
attorney Chris Hesse. This amended order is now entered to memorialize good
cause for the substitution of counsel.

      Mr. Hesse represented Defendant in ajury trial, commencing February 17,
2015, with the selection of a petit jury, which was empaneled and sworn on
February 18, 2015. The jury could not come to a unanimous decision, and
Defendant's motion for a mistrial was granted on February 26, 2015. After the
jury was released from service, Mr. Hesse was found in contempt of court by the
Hon. Lee Duggan, Jr., sitting by assignment. Mr. Hesse sentenced to a$500 fine,
and released on a personal recognizance bond.          Attached hereto, without
attachments, is a copy of the Notice of Allegations of Contempt and Order Setting
Show Cause Hearing set for March 23, 2015. [Exhibit 1]
          In addition to the allegations of contempt, the reporter's record reflects
several exchanges between Mr. Hesse and the trial court wherein Mr. Hesse
expressed his concern about being held in contempt and "asked to be removed
from this case because my interests are adverse to my client's at this very
moment." [Exhibit 2, RR-Feb. 24, 2015 at 5] And again, "I ask that I be
withdrawn as attorney of record...." [Exhibit 3, RR-Feb 25, 2015 at 57]
          Because Mr. Hesse is subject to a show cause hearing for contempt and had
asked to be removed from this case because he might be held in contempt, this
Court hereby finds good cause to remove David Christopher Hesse as the
appointed attorney in this cuase and to substitute Harris S. Wood, Jr. to defend
Brandon Jay Carter.

          In addition, on March 3, 2015, the Indigent Defense Coordinator has notified
the Court that Mr. Hesse asked to be removed from all appointment lists because
he is moving to Amarillo in May 2015. [Exhibit 4, being the affidavit of Raquel
Levy]

           Signed on March 12, 2015.


                                         Thomas R. Culver, III
                                 p/K     Presiding Judge, 240th District Court
        MAR Um2015 P

CterfcBfefifeteSBrt,ff9Jttten#<fe,^C
Exhibit 1
                              No. 12-DCR-061186

STATE OF TEXAS                             §.         ™THE 240TH ^JDIOAL
                                           6          DISTRICT COURT OF
VS.                           .     .......b

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
mcorporated herein, is acopy ofthe Reporter's Record ofthe 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 acopy of
the audio recording ofthe trial proceedings on February 24-26, 2015.
                              1. Factual Allegations

1.01 Respondent is the attorney of record for the Defendant^ ^entitled
       and numbered cause.                                   ?flftH&K ~? M8'' ^

                                                               HEBKOTSTWCT-COURT
1.02 Ajury trial commenced on February 17, 2015, with the selection of apetit
     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 ofthe 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 ofthe Court during
       his cross-exaxmnation ofthe State's witness, Detective Tommy Thompson.
       1.081 Respondent argued with the Court's rulings, including "I want to
              tow more about this DeMarcus Hawthorne" [Ex Aat 54]; "I'-have a
     right to confront, sir" [Ex Aat 56]; "I object to being denied-" [Ex A
     at 80-81]; "I can put my objection, now, sir. My objection-" [Ex Aat
     81]; "My objection is I-" [Ex Aat 81]; "My client is being denied—
     my client is being denied-" [Ex Aat 81]; "And Iwant 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 demed his right to confront-" [Ex Aat 81];
     "Every time you talk over me, sir, I'm not getting on the record. I
     object-" [Ex Aat 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 Aat 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 Aat 43-45, 80]
1.083 Respondent twice continued to pursue questioning about latent
       prints after the State's objection was sustained, and the' ddurt had
             instructed Respondent to move on to new material. [Ex Aat 55-56]
     1.084 Respondent interrupted the Court when the Court spoke:
            The Court: You have the usual pathway ofobjections—
            Respondent: And Iwant 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 ofthe parties.
1.10 On February 26, 2015, the jury resumed deliberating, but sent out awritten
     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
      aJudgment of Contempt and Commitment Order after finding Respondent
      in contempt and authorized Respondent to make apersonal appearance bond
      as an officer of the Court.                                       -';   •"
                           2. Allegations of Contempt

2.0l 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 aparticular 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
     unpede, embarrass, or obstruct the court in the lawful discharge ofits duties.
       Exparte Soape, 341 S.W.2d 621 (Tex. 1961).
                              4. Range ofPunishment

 4.01 The range ofpunishment for contempt is afine of not more than $500.00, or
       confinement mthe county jail for aperiod of not more than six months, or
       by both afine and aperiod of confinement.
                             5. AssignedJudge

,01 Pursuant to Section 21.002(d) of the Government Code, the Honorable Olen
     Underwood, presiding judge of this admmistrative region, has appointed the
     Honorable Michael Seller, 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
                           SHOWCAUSE 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 not be held in contempt ofcourt and punished accordingly.
                        NOTICE OF SHOW CA USE 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 ,m. in this Court as Respondent
swore he would when released on apersonal recognizance bail bond. Acopy of
this notice and order shall also be provided to the Honorable Olen Underwood,
Administrative Judge; the Honorable Michael Seller, Presiding Judge by
assignment; and the Honorable Thomas Culver, Presiding Judged me 240*
District Court.

      Signed March

                                            Hon. Michael Seller
                                            Judge Presiding by Assignment
                                            240th District Court
                                            Fort Bend County, Texas
Exhibit 2
                            REPORTER'S   RECORD
                        VOLUME 1 OF      i VOLUMES
                  TRIAL COURT CAUSE NO. 12-DCR-61186



     THE   STATE OF TEXAS           IN THE DISTRICT COURT

                                    FORT BEND COUNTY,   TEXAS
     vs


                                    240TH JUDICIAL DISTRICT
     BRANDON JAY CARTER




 9


10                    EXCERPT OF BENCH CONFERENCE

11


12


13
           On the 23rd day of February, 2015, the following
14
     proceedings came on to be held in the above-titled and
15
     numbered cause before the Honorable LEE DUGGAN, JR,
16
     Presiding Judge, held in Richmond, Fort Bend County,
17   Texas .


18
           Proceedings reported by computerized stenotype

19   machine.


20


21


22


23


24


25
                                APPEARANCES
 1


 2   AMANDA BOLIN
     STUTI PATEL
 3   DISTRICT ATTORNEY'S OFFICE
     301 Jackson Street
 4   Richmond,    Texas 77469
     Telephone:      281-341-4460
 5
     Attorney for The State of Texas

 6


 7   CHRIS   HESSE
     ATTORNEY AT LAW
 8   1110 Front Street, Ste.        C
     Richmond, Tx 77469
 9   Telephone:      281-984-0051
     Counsel for Brandon Carter
10


11


12


13


14


15


16


17


18


19


20


21


22


23


24


25
 1                    (Judge enters)
 2                    (Out of the presence of the jury)
 3                    THE COURT:     Thank you, have a seat.
                      MR. HESSE:     Your Honor, my we approach on

     the    record?

                      THE COURT:     Approach.

                      MR.   HESSE:   Your Honor   --

                      THE COURT:     Do you want your defendant

     here before we    speak?
                      MR. HESSE:     Yes, that would be great.
10


11
                      THE COURT:     Counsel, may I have both of

12   you here for a bench conference?
 3                    MS. PATEL:     Yes, Judge
                      MS.   BOLIN:   Yes,   your Honor.
14

                      THE COURT:     I don't want to talk to either
15

16   of you about evidence in the matter at this time but
17   simply scheduling and procedure

18
                      Are your witnesses here for those matters

19
     that you propose to offer proof about?
                      MS.   PATEL:   Yes,   your Honor.
20


21
                      THE COURT:     Is your out of town witness

22   here


23
                      MR. HESSE:     Your Honor, just before we hit

24   that just really quick.
25                    THE COURT:     I'm sorry?
                     MR. HESSE:    Just before we talk about that, J
2    would like -- just prior to the court reporter coming into
3    the courtroom, you called us up to talk to us about the
 4   case.

 5                   THE COURT:    That's correct.     I did.
 6                   MR. HESSE:    And I demanded that everything
 7   be put on the record.
                     THE COURT:    And I don't want to hear some

 9   authority from you on that the fact the Judge is not
10   entitled to have the cooperation of lawyers on non-trial
11   matters.

12                   MR. HESSE:    I demanded that everything
13   that's said between the attorneys and the Judge be put
14   on the record and at which point you advised me if I
15   persist in making that demand, you would hold me in
16   contempt.

17
                     THE COURT:    I'm going to certainly

18
     consider it because you've been an impediment to the
19   orderly flow of the case.      You haven't been held in
20   contempt yet.
                     m_r. HESSE:   That's what —     urn —   what you
22   told me is you would - if      I persist in that course of
23   action insisting that this     be put on the record that you
24   would hold me in contempt.      And so, sir, now — if you
25   would allow me to speak -      now that I'm afraid of being
  1   held in contempt

 2                    THE COURT:     Be careful.   We are startinc
 3    even

 4                    MR. HESSE:     Now that I'm afraid of being
 5    held in contempt, I ask for'a continuance and I ask for
 6    a mistrial and I ask to be removed from this case
 7    because my interest are adverse to my client's at this
      very moment.

 9
                      THE COURT:     Tell me how your   interests are

10    adverse to your client?9

11
                     MR.    HESSE:   I can't defend my client when

12    I'm afraid of being held in contempt

13
                      THE COURT:     As I say, you have noL been

14    and although I've been told orally about matters that I
15    didn't hear that have been said that you said so you are
16    treading close.      But it 's a clean slate and a brand new
17    week.    So your motion is for —
IQ                   MR. HESSE:      For a continuance, for a
19    mistrial and that I be withdrawn as the attorney of
20    record

2\                    THE COURT:     Each of your motions is

22    overruled.

23


2 4


25
 1   STATE   OF   TEXAS

 2   COUNTY OF FORT BEND

 3

         I, Liz Wittu, Official Court Reporter in and for the
 5   240TH District Court of Fort Bend, State of Texas, do
 6   hereby certify that the above and foregoing contains a
 7   true and correct transcription of all portions of
     evidence and other proceedings requested in writing by
 9   counsel for the parties to be included in this volume of
10   the Reporter's Record in the above-styled and numbered
11   cause, all of which occurred in open court or in
12   chambers and were reported by me

13       j further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits,
15   if any, offered by the respective parties

16       I further certify that the total cost for the
17   preparation of this Reporter's Record is $                 and
18   was paid/will be paid by                                     •

19
                                /S/ Liz Wittu
20
                                Liz   Wittu,   CSR
21                              Texas CSR 7928
                                Official   Court     Reporter
22
                                240TH   District     Court
                                Fort Bend County,       Texas
23                              301 Jackson
                                Houston,   Texas 77469
24                              Telephone:      281-341-8601
                                Expiration:      12/31/2015
25
Exhibit 3




            1   'P
                         February 24 & 25, 2015



                           REPORTER'S   RECORD
 1
                         VOLUME 1 OF 1 VOLUMES
2
                   TRIAL COURT CAUSE NO. 12-DCR-61186

 3
     THE STATE OF TEXAS           ) IN THE DISTRICT COURT •-
                                  ) FORT BEND COUNTY,   TEXAS
 4   vs .



 5
     BRANDON JAY CARTER           ) 240TH JUDICIAL DISTRICT
 6


 7




                          EXCERPT OF TESTIMONY
 9


10


11


12
            On the 24th & 25th day of February, 2015, the

13
     following proceedings came on to be held in the
14
     above-titled and numbered cause before the Honorable» LEE
15
     DUGGAN, JR, Presiding Judge, held in Richmond, Fort Bend
16   County,    Texas.

17
            Proceedings reported by computerized stenotype
18   machine.

19


20

21


22


23


24


25
                                                        L
                                 February 24 & 25,      2015




     1                                    APPEARANCES


 2       AMANDA BOLIN
         STUTI PATEL
 3       DISTRICT ATTORNEY'S        OFFICE
         301 Jackson Street
 4       Richmond,      Texas   77469
         Telephone:       281-341-4460
 ^j
         Attorney for The State of Texas

 6


 1       CHRIS HESSE
         ATTORNEY AT      LAW
 8       1110   Front    Street,   Ste.    C
         Richmond,      Tx 77469
 9       Telephone:       281-984-0051
         Counsel   for Brandon      Carter
10


11


12


13

14


15


16


17


18


19


20


21


22


23


24


25
                 Tommy Thompson - February 24, 2-015             57
                    Cross-Examination by Mr.   Hesse



 1   rule on the objections, that's it.      I don't want to
 2   argue about it.     That's contempt.   I'm trying to stay
 3   away from contempt.     I would like to finish this case.'
 4                    How long, additionally, do you think it's
 5   going to be before you're finished this evening?
 6                    MR. HESSE:   Sir, are you threatening me
 7   with contempt?

 8                    THE COURT:   Sir?
 9                    MR. HESSE:   Are you threatening me with
10   contempt?

H                     THE COURT:   No, sir, I'm telling you that
12   your conduct borders on it.      But I've overlooked a lot,
13   and I intend to continue to try to overlook a lot.
14                    MR. HESSE:   If my conduct borders on
15   contempt, I ask for a continuance.      I ask for a
16   mistrial.   I ask that I be withdrawn as attorney of
17   record, and I ask that the issue of my contempt be --
ig                    THE COURT:   We've been over all this

19   before.

20                    MR. HESSE:   The issue of my contempt be --
2i                    THE COURT:   And do not try to talk over
22   me.   She only takes my voice when the two of us are
23   being heard.
24                    MR. HESSE:   That's very unfortunate, sir.
25                    THE COURT:   Sir?
                  Detective Tommy Thompson - February 25, 2015                  119
                           Recross-Examination by Mr.        Hesse




     1   STATE    OF    TEXAS


     2   COUNTY    OF    FORT   BEND

     3


 4           I, Liz Wittu, Official Court Reporter in and for the

 5       240TH District Court of Fort Bend,           State of   Texas,    do

 6       hereby certify that the above and foregoing contains a

 7       true and correct transcription of all portions of

 8       evidence and other proceedings requested in writing by

 9       counsel for the parties to be included in this volume of

10       the Reporter's Record in the above-styled and numbered

11       cause, all of which occurred in open court or in

12       chambers and were reported by me.

13           I further certify that this Reporter's Record of the

14       proceedings truly and correctly reflects the exhibits,

15       if any, offered by the respective parties.

16           I further certify that the total cost for the

17       preparation of this Reporter's Record is $                       and

18       was paid/will be paid by                                    ______•

19
                                       /S/   Liz Wittu
20
                                       Liz Wittu,      CSR
21                                     Texas   CSR    7928
                                       Official Court Reporter
22                                     240TH   District      Court
                                       Fort Bend County,        Texas
23                                     301   Jackson
                                       Houston,      Texas   77469
24                                     Telephone:       281-341-8601
                                       Expiration:       12/31/2015
25
Exhibit 4
THE STATE OF TEXAS

COUNTY OF FORT BEND


                       AFFIDAVIT OF RAQUEL LEVY

      BEFORE ME, the undersigned authority, on this day personally appeared
Raquel Levy, who swore or affirmed to tell truth, and stated as follows:
      "My name is Raquel Levy. I am over the age of eighteen years and have
personal knowledge ofthe facts stated herein, which are true and correct.
      I am currently employed as the Indigent Defense Coordinator,
Administrative Court Services, Fort Bend County. I have been so employed since

the year of 2007.

      As part of my duties, I maintain the Misdemeanor and Felony Lists of
attorneys qualified for appointment to criminal cases. On February 12, 2015, Mr.
Hesse asked me to remove him from all appointment lists because he is moving to
Amarillo in May 2015. I notified the judges ofMr. Hesse's request on March 3,

2015."

                                                                  0

                                                   Rajquel Levy       f
      SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority

on March 12, 2015, by Raquel Levy.


                                     Notary Public in and for the State of
                                     Texas
                                     My commission expires:
APPENDIX 7
Opinion issued May 7, 2015




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00216-CR
                              NO. 01-15-00217-CR
                            ———————————
                  IN RE BRANDON JAY CARTER, Relator



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION

      Relator, Brandon Jay Carter, has filed a petition for (1) a writ of mandamus

challenging an order substituting his appointed trial counsel, and (2) a writ of

prohibition preventing the trial court from holding hearings or proceeding to trial

in the underlying case.1 We deny the petition.

1
      The underlying case is State of Texas v. Brandon Jay Carter, cause number 12-
      DCR-061186, pending in the 240th District Court of Fort Bend County, Texas, the
      Honorable Thomas R. Culver, III presiding.
                                 PER CURIAM

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           2
APPENDIX 8
          UNSWORN DECLARATION OF D. CHRIS HESSE

      Under 28 U.S.C. § 1746 and Texas Civil Practice and Remedies Code §

132.001 et seq., I declare under penalties of perjury that my name is David

Christopher Hesse. I am also known as D. Chris Hesse. I am over the age of 18

years, and am competent to make this declaration. My date of birth is April

30, 1973. My address is 112 West 8th Avenue, Suite 301 Amarillo, Texas 79101.

This document is not a lien required to be filed with a county clerk, an

instrument concerning real or personal property required to be filed with a

county clerk, or an oath of office or an oath required to be taken before a

specified official other than a notary public. I have not been forced to sign this

declaration. I declare that under the penalties of perjury that all assertions

provided in this document are correct and true.

      The documents that are attached to the Petition for Writ of Mandamus

are true and correct copies of the original documents which are to be found

among the papers of Cause No. 12-DCR-061186 in the Office of the District

Clerk of Fort Bend County, Texas, or among the papers in Docket No. 01-15-

00216-CR and Docket No. 01-15-00217-CR in the First Court of Appeals in

Houston, Texas. I did not find out about the order removing me as the

attorney for Relator until I received a phone call from Harris Wood, Jr., on

March 4, 2015. There was no hearing held before the original or the amended
order was signed by Judge Culver.

     Signed on May 11, 2015.

                                    /s/ David Christopher Hesse
                                    David Christopher Hesse
