                                                                                               ACCEPTED
                                                                                          03-13-00760-CR
                                                                                                  3596204
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                    12/29/2014 8:37:16 AM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                              No. 03-13-00760-CR
                           T.C. No. D-1-DC-13-300630
                                                                     FILED IN
                  IN THE COURT OF APPEALS FOR THE 3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
                  THIRD COURT OF APPEALS DISTRICT,
                                                  12/29/2014 8:37:16 AM
                           AUSTIN, TEXAS
                                                                  JEFFREY D. KYLE
                                                                       Clerk



JAMES BROWN, Appellant

v.

THE STATE OF TEXAS, Appellee

Appealed from the District Court of Travis County, Texas
The 331st Judicial District


  MOTION TO ABATE APPEAL AND REMAND FOR HEARING ON
 MOTION FOR NEW TRIAL AND FOR PERMISSION TO FILE OUT OF
              TIME MOTION FOR NEW TRIAL


To the Court of Appeals, Third Judicial District:


Now comes JAMES BROWN, Appellant, by and through his attorney of record in
the above entitled and numbered cause, and files this Motion to Abate Appeal and
Remand for Hearing on Motion for New Trial and For Permission to File Out of
Time Motion for New Trial, and would show the following:

                                         I.

In the 331st District Court of Travis County, Texas in Cause No. D-1-DC-13-
300630, the Appellant was convicted of the offense of Retaliation under Texas
Penal Code 36.06(a)(1)(a) and sentenced to fifteen years in prison on October 23,
2013 by presiding judge David Crain.

                                        II.

On October 31, 2013 trial counsel filed a Motion for New Trial. (CR p. 59). On
November 1, 2013 Mr. Brown filed his written pro se Motion for New Trial. (CR
p. 61). On November 8, 2014 Mr. Brown filed his written pro se Motion to
Appeal. (CR p. 71). In Mr. Brown’s Motion for New Trial and Motion to Appeal
he indicated that he had been provided ineffective assistance. (CR pgs. 65, 73).
Thereafter, Mr. Brown filed his written pro se Motion for Appointment of Counsel
on Appeal. (CR p. 77). Unfortunately, the trial judge suffered a stroke during the
Thanksgiving holiday and was out of the office the remainder of the year. The
Honorable Judge David Crain’s letter is attached hereto and incorporated herein as
Exhibit A. Once the trial judge returned to the bench, Mr. Brown was bench
warranted back to Travis County on the motion for new trial. On January 8, 2014
Mr. Brown was brought to court. However, he did not have a hearing because he
was unwilling to participate with trial counsel as his attorney. On February 5, 2014
Mr. Brown filed his written pro se Amended Appellant’s Brief where he reasserts
his claim of ineffective assistance of counsel. (CR pgs. 120-130). On April 4, 2014
trial counsel files a Motion to Withdraw. (Supp CR p. 3). Said motion was granted
by the trial court. (Supp CR p. 4). A copy of Mr. Brown’s Motion for New Trial
and Motion for Appeal is attached hereto and incorporated herein as Exhibit B.

                                         III.

Once the trial judge renders sentence, a defendant has thirty days to file a motion
for new trial. Tex.R.App.P. 21.4(a). The Court of Criminal Appeals has determined
that this time period “is a critical stage of the proceedings.” Cooks v. State, 240
S.W.3d 906, 911 (Tex.Cr.App. 2007). The Court of Criminal Appeals has also
determined that “a defendant has a constitutional right to counsel during that
period.” Id. A hearing on the motion for new trial must occur within seventy-five
days or it is overruled by operation of law. Tex.R.App.P. 21.8(c).

Appellant was represented by trial counsel during the entire thirty-day period for
filing a motion for new trial. However, he was unwilling to continue to be
represented by trial counsel. Mr. Brown made three separate written allegations of
ineffective assistance of counsel in three separate pro se motions, i.e. his Motion
for New Trial, Motion to Appeal, and Amended Appellant’s Brief. (CR pgs. 65,
73, and 120-130). Mr. Brown’s Motion for New Trial and Motion to Appeal
alleging ineffective assistance of counsel were both filed during this critical thirty-
day time period. Appellant counsel was not appointed until after both the thirty
day time period and the seventy-five day time period in which to have a hearing
on a Motion for New Trial had expired. Thus, clearly Mr. Brown was deprived of
counsel during this critical stage. Moreover, trial counsel did not file a Motion to
Withdraw until April 4, 2014.
                                         IV.

A new trial may also be garnered through discovery of new evidence. A party who
seeks a new trial on the ground of newly discovered evidence must show that (1)
the evidence has come to the party's knowledge since the trial; (2) the evidence
was not discovered earlier because of a lack of due diligence; (3) the evidence is
not cumulative; and (4) the evidence is so material that it would probably produce
a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d
807, 809 (Tex. 1983). As to newly discovered evidence, “the issue is whether the
trial court's refusal of a new trial involves the violation of a clear legal right or a
manifest abuse of judicial discretion.” Id. at 809.

Mr. Brown consider’s Judge Crain’s letter new evidence. The letter, attached
hereto and incorporated herein as Exhibit A, points out that had a Motion for New
Trial hearing taken place, it is likely the trial judge would have significantly
reduced his sentence from 15 years in the Texas Department of Correction.

                                          V.

“Deprivation of counsel is subject to a harmless error or prejudice analysis.” Cook
at 911. To show harm, there must be “facially plausible claims” that could have
been presented in a motion for new trial. Id at 912. Also see Massingill v. State, 8
S.W.3d 733 (Tex.App.-Austin 1999, pet. ref’d).

In the instant case, the issue in a motion for new trial will be sufficiency of
evidence and ineffective assistance of counsel during the trial. Trial counsel did
not file pretrial motions nor did he call a key witness who witnessed firsthand the
language which is the subject of this indictment. Moreover, trial counsel did not
subpoena the individual responsible for generating the video entered into evidence
at trial. These witnesses will include Valerie Brown and ___ Flores. Valerie
Brown is defendant’s mother who was present when the complained of language
in the indictment was uttered. Ms. Brown will testify that Mr. Brown was upset at
having his parental rights to his 3 year old daughter terminated just moments
before, that he was planning to file a lawsuit because he felt his rights were being
violated and that he never threatened anyone, but was simply “grieving.” ___
Flores will testify that there is possibly additional video evidence over and above
the two “snippets” of video information entered as evidence in the trial before the
court.
                                         VI.

As to newly discovered evidence, “the issue is whether the trial court's refusal of a
new trial involves the violation of a clear legal right or a manifest abuse of judicial
discretion.” Jackson, 660 S.W.2d at 809.

The out of time motion for new trial will allow the trial judge to reduce Mr.
Brown’s sentence from 15 years in the Texas Department of Correction to 3 years
in the Texas Department of Correction. See attached Exhibit A.


                                         VII.

This issues of sufficiency of evidence and ineffective assistance of counsel
provide reasonable grounds for a motion for new trial. Moreover, the newly
discovered evidence evident in the affidavit of the trial judge also provides
reasonable grounds for a Motion for New Trial. In addition to providing
information to the trial judge, the Motion for New Trial is necessary to advance
these additional facts for purposes of presenting the issue on appeal. Thus, Mr.
Brown was clearly prejudiced by the lack of counsel during the critical stage for
filing a motion for new trial.

Wherefore, premises considered, Appellant requests that the Court abate the
appeal and remand the case for hearing on a Motion for New Trial and requests
permission to file the Motion for New Trial outside of the time limitations.

                                                Respectfully submitted,

                                                 Bernard & Associates
                                                 1203 Baylor Street
                                                 Austin, Texas 78703
                                                 Tel: 512/ 478-5291
                                                 Fax: 512/ 478-9827


                                                 By: /s/Tanisa Jeffers_____________
                                                 Brian Bernard, State Bar No. 24001728
                                                 Tanisa Jeffers, State Bar No. 24006153

                                                Attorneys for JAMES BROWN
                         CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Abate
Appeal and Remand for Hearing on a Motion for New Trial and for Permission to
File an Out of Time Motion for New Trial was mailed, hand delivered, faxed or
efiled to the Travis County District Attorney’s Office at 509 W. 11th St., 2nd
Floor, Austin, Texas 78701, on this the 24 day of December, 2014.


/s/Tanisa Jeffers_____
Brian Bernard
Tanisa Jeffers
Exhibit A
Exhibit B
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
Exhibit B (continued)
