                                                                                             ACCEPTED
                                                                                        03-13-00760-CR
                                                                                               3627987
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                 12/31/2014 12:16:54 PM
                                                                                       JEFFREY D. KYLE
                                                                                                 CLERK
                                   No. 03-13-00760-CR

                                        IN THE
                                                                       FILED IN
                                                                3rd COURT OF APPEALS
                           THIRD COURT OF APPEALS                   AUSTIN, TEXAS
                                                               12/31/2014 12:16:54 PM
                                   AT AUSTIN, TEXAS
                                                                  JEFFREY D. KYLE
                                                                        Clerk


                 JAMES ARTHUR BROWN, Defendant-APPELLANT

                                          vs.

                    THE STATE OF TEXAS, Plaintiff-APPELLEE



                ON APPEAL FROM THE 331ST JUDICIAL DISTRICT

                           OF TRAVIS COUNTY, TEXAS

                TRIAL COURT CAUSE NUMBER D-1-D-C-13.300630

              THE HONORABLE DAVID CRAIN, PRESIDING JUDGE



                             APPELLANT’S BRIEF



Brian Bernard                                           Tanisa Jeffers
Bernard & Associates                                    Bernard & Associates
1203 Baylor St.                                         1203 Baylor St.
Austin, TX 78703                                        Austin, TX 78703
Phone: 512.478.5291                                     Phone: 512.478.3408
Fax: 512.478.9827                                       Fax: 512.478.9827
Email: attorneybernard@yahoo.com                        Email: tanisaL@hotmail.com

                          ATTORNEYS FOR APPELLANT


                         ORAL ARGUMENT REQUESTED




                                          -1-
                  IDENTITY OF PARTIES AND COUNSEL


Appellants: JAMES ARTHUR BROWN

Appellants’ Counsel:
Brian Y. Bernard
Tanisa Jeffers
Bernard & Associates
1203 Baylor St.
Austin, Texas 78703
(512) 478-5291
(512) 478-9827 Facsimile
Brian Y. Bernard
Tanisa Jeffers
attorneybernard@yahoo.com
tanisaL@hotmail.com

Appellee: TRAVIS COUNTY DISTRICT ATTORNEY’S OFFICE

Appellee’s Counsel:
Rosemary Lehmberg
Office of the Travis County District Attorney
Appeal Division
P.O. Box 1748
Austin, Texas 78701
(512) 854-9400
(512) 854-9789 Facsimile
rosemary.lehmberg@traviscountytx.gov




                                                Page 2 of 50-
                    REQUEST FOR ORAL ARGUMENT

JAMES ARTHUR BROWN, Defendant-Appellant, respectfully requests oral
argument. Oral discussion of the facts and the applicable precedent would benefit
the Court.




                                                  Page 3 of 50-
                                       TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL..............................................2.

REQUEST FOR ORAL ARGUMENT……………..……………………………...3

TABLE OF CONTENTS…………………………………………………………4v

TABLE OF AUTHORITIES……………………………………………………….5

STATEMENT OF JURISDICTION……………….………………………………7

STATEMENT OF THE CASE………………………………...…………………..9

STATEMENT OF FACTS AND PROCEDURES……………..………………...11

STATEMENT OF ISSUES PRESENTED……………………………………...…8
  1. Was there insufficient evidence to convict Appellant of Retaliation pursuant to Texas Penal
      Code § 36.06?………..…………………………………………………………………….20
  2. Did the trial court err when it overruled Appellant’s Motion to Quash Indictment? ……...36
  3. Was there ineffective assistance of counsel where trial counsel failed to withdraw and there
      was no hearing on Appellant’s Motion for New Trial within the 75-day time period? ......36

SUMMARY OF ARGUMENT...............................................................................20

ARGUMENT AND AUTHORITIES .....................................................................20
  1. Standard of Review. ........................................................................................21
  a. Legal Sufficiency………………….……………………………………………...21
  b. Factual Sufficiency..........................................................................................23
      i. Intentionally or Knowingly……….....…………………………………….27
      ii. Harms or Threatens to Harm…...…………………...…………………….28
      iii.Unlawful Act.…………………………………………...………………...29
      iv. In Retaliation for or on Account of their Service as a Public Servant…..30
  c. The Video……………………………………………………………..……..33
  2. Quash Indictment…………………………………………………..…………35
  3. Ineffective Assistance……………………………………………..………….35

PRAYER FOR RELIEF.. .......................................................................................41.
CERTIFICATE OF COMPLIANCE & SERVICE……………………………….42
EXHIBIT A………………………………………………………………….……43

                                                                        Page 4 of 50-
                             TABLE OF AUTHORITIES

CASES:
Jackson v. State, 443 U.S. 307 (1979).....................................................................23
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).............................23
Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002)..................................23
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...................................23
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).....................................23
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) .............................24
In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999).....................................22, 24
Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App.1983) ..................................24
Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App.1993) ............................24
Coward v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston 1996)........................24
Puckett v. State, 801 S.W.2d 188, 194 (Tex. App.-Houston 1990) ........................24
Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.-San Antonio 1996).....................24
Santellan v. State,939 S.W.2d 155, 164 (Tex.Crim.App.1997)………...………...26
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000)………………..………26
Goodman v. State,66 S.W.3d 283, 285 (Tex.Crim.App.2001)…………………..26
Zuniga v. State, 144 S.W.3d 477, (Tex.Crim.App.2004).……………………….27
Cada v. State, 334 S.W.3d 766, 770 (Tex.Crim.App.2011)………….…………..29
Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011)…………………..29
Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999)……………………....30
Beltran v. State, 593 5 S.W.2d 688, 689 (Tex. Crim. App. 1980)……….……….30
Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston 2006)………….………….31
Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994)……………..32
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)…………32
United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987)……………....32
State v. Weippert, 237 N.W.2d 1 (N.D.1975)…….……….……………………...32
Meyer v. State, 366 S.W.3d 728 (Tex. App. Texarkana 2012)………….………..33
Wright v. State, 979 S.W.2d 868, 869 (Tex.App. Beaumont 1998)………………34
Stafford v. State, 948 S.W.2d 921, 923-24 (Tex. App. Texarkana 1997)………...34
McCoy v. State, 932 S.W.2d 720, 724 (Tex.App. Fort Worth 1996)……………..34
Wilkins v. State, 279 S.W.3d 701 (Tex. App. Amarillo 2007)…………………...35
In re M.M.R., 932 S.W.2d 112, 115 (Tex. App. El Paso 1996)…………………..35
Wiggins v. State, 255 S.W.3d 766 (Tex. App. 2008)……………………………..37
Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008)…………………38
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)………………38
Mayes v. State, 8 S.W.3d 354, 358-61 (Tex. App. Amarillo 1999)………………38
United States v. Cruikshank, 92 U.S. 542 (1876)…………………………………40

                                                5
State v. Mays,967 S.W.2d 404, 406 (Tex.Crim.App.1998)………………………40
Taylor v. State, 637 S.W.2d 929, 930 (Tex. Crim. App. 1982)………………….41
Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1983)..……………………...41
Saathoff v. State, 891 S. W. wd 264, 266 (Tex. Crim. App. 1994)……………….41
Doyle v. State, 661 S.W.2d 726, 727 (Tex.Crim. App.1983)…………………….41
Strickland v. Wasington, 466 U.S. 668, 692 (1984)………………………………41
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003)………………41
Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999)…………………...41

Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)………………………43
Smith v. Robbins, 528 U.S. 259 (2000)…………………………………………...43

Burdine v. Johnson, 262 F. 3d 336, 345 (5th Cir. 2001)…………………………..44

United States v. Cronic, 466 U.S. 648, 659 (1984)…………………..…………...44
States v. Russell, 205 F.3d 768, 770-71 (5th Cir. 2000) ……………..…………..44
Cooks v. State, 240 S.W.3d 906, 911 (Tex.Crim.App. 2007) ……………………44
Massingill v. State, 8 S.W.3d 733 (Tex.App.-Austin 1999) ……………………...46
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) ……………………..46


STATUTES:

Texas Penal Code § 6.03(a)…….…………………………………………………30
Texas Penal Code § 36.06………….…..……………………………………..28, 30
Texas Penal Code § 1.07(48)……………………………………………………...33
Tex. Penal Code Ann. § 2.01……………………………………………………...34
U.S. Const. Amendment VI.…….………………….……………………………..40
Tex. Const. art. I., § 10…..………………………………………………………..40
Tex.Code Crim.Proc.Ann. § 1.05….……………………………………………...40
Tex.Code Crim.Proc.Ann. § 21.04…..…………………………………………...40
Tex.Code Crim.Proc.Ann. § 21.11…..…………………………………………...40
Tex.R.App.P. 21.4(a)……………………………………………………………...44
Tex.R.App.P. 21.8(c)…………………………………………………………….451




1Reference: Designation of record and transcript are as follows: RR=Reporter’s Record (or Trial
Transcript), CR=Clerk’s Record


                                                   6
                  STATEMENT OF JURISDICTION


      Jurisdiction of this Court is invoked under rules 4.03 and 4.04 of

Texas Code of Criminal Procedure as an appeal from a final conviction and

sentence in 331st Judicial District for the State of Texas. Notice of appeal

was timely filed in accordance with Rule 26.2 of the Texas Rules of

Appellate Procedure.




                                    7
                            No. 03-13-00760-CR

                                   IN THE

                      THIRD COURT OF APPEALS

                           AT AUSTIN, TEXAS



         JAMES ARTHUR BROWN, Defendant-APPELLANT

                                         vs.

          THE STATE OF TEXAS, PLAINTIFF-APPELLEE


                         BRIEF OF APPELLANT



TO THE HONORABLE JUDGES OF THE THIRD COURT OF

APPEALS:

      JAMES ARTHUR BROWN, by and through the undersigned counsel,

files this brief in appeal of his conviction and sentence in the district court

and, in support, offers the following:


        STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. Did the trial court err when it determined there was sufficient evidence to
convict appellant for the offense of Retaliation pursuant to Texas Penal Code
§36.06?



                                         8
II. Did the trial court err when it overruled Appellant’s Motion to Quash
Indictment?

III. Was there ineffective assistance of counsel where trial counsel failed to
withdraw and there was no hearing held on Appellant’s Motion for New
Trial within the 75-day time period?


                      STATEMENT OF THE CASE

      Appellant James Arthur Brown was charged with Retaliation, a third

degree felony, under cause number D-1-D-C-13-300630 on March 28, 2013.

The warrant was executed on April 5, 2013 (CR . 8). Brown was assigned

court appointed counsel on May 1, 2013.

      On May 29, 2013 a Travis County Grand Jury returned an indictment

charging Brown with Obstructive Retaliation.

      Appellant James Arthur Brown was arrested and charged with

Retaliation under cause number D-1-D-C-13-300630 on April 5, 2013. (CR

p. 6). Brown was assigned court appointed counsel on May 1, 2013. Due to

the nature of the case and the classification of the alleged victims as public

servants, Special Prosecutor Colby Holcomb was appointed to prosecute the

case on April 5, 2013. (CR p. 10).

      Prior to indictment Brown filed a series of motions. On May 15, 2013

Brown filed a pro se Motion Requesting Examining Trial (CR p. 13).

Brown’s Motion Requesting Examining Trial was not ruled upon by the trial



                                     9
court at that time. (CR p. 15). On May 17, 2013 Brown filed a pro se Motion

Requesting Speedy Trial (CR p. 16). Brown’s Motion Requesting Speedy

Trial was not ruled upon by the trial judge at that time. (CR p. 18). On May

29, 2013 a Travis County Grand Jury returned a three-count indictment

charging Brown with Retaliation. (CR p. 19). Thereafter, Brown filed a pro

se Motion for Discovery (CR p. 21). Brown was notified that the case was

indicted on June 5, 2013. (CR p. 26).

      Recognizing there would possibly be disputed issues of fact, Brown’s

court appointed counsel filed a Motion for the Appointment of an

Investigator. Said motion was granted by the trial court on May 30, 2013.

(CR p. 27). Brown filed a pro se Motion for Reduction of Bond and Motion

to Suppress Evidence on July 12, 2013 (CR p. 28, 31). Brown’s pro se

Motion for Reduction of Bond and Motion to Suppress Evidence were not

ruled upon by the trial court at that time. (CR p. 30, 32). Brown waived his

right to a jury trial at arraignment. (CR p. 33-34).

      Brown continued filing pro se motions, filing Motions to Quash

Indictment on September 4, 2013 and October 9, 2013. (CR p. 35, 42).

Brown’s pro se Motions to Quash Indictment were not ruled upon by the

trial court at that time. (CR p. 39, 46). Brown’s court appointed counsel filed

a Motion to Have the Defendant Examined by a Psychiatrist on September 4,



                                        10
2013. (CR p. 40). Said motion was granted by the trial court. (CR p. 41).

After having waived his right to a jury trial, a trial before the court began on

October 23, 2014. Brown was found guilty and sentenced to 15 years in the

Texas Department of Correction. (CR p. 52).

       Brown’s trial attorney file a Motion for New Trial on October 31,

2013. (CR p. 59). Brown filed a pro se Motion for New Trial as well on

November 1, 2013. (CR p. 61). In conjunction with the Motion for New

Trial, Brown filed pro se Motions for Free Appellate Record, Motion to

Appeal, Motion for Appointment of Counsel on Appeal, Memorandum of

Law and Notice of Appeal on November 8, 2013. (CR p. 68, 71, 77, 81, 83).

This appeal followed, having been timely filed on November 8, 2013 (CR p.

83).

       A bench warrant was issued for Brown ordering him to attend a

Designation hearing on January 8, 2014. (CR p. 100). Brown’s previous trial

attorney was reappointed as trial counsel on January 7, 2014 (CR p. 103) and

this appellate counsel appointed on January 16, 2014. (CR p. 105). Appellate

counsel filed her own Notice of Appeal on January 30, 2014. (CR p. 107).

Thereafter, Brown filed an Amended Appellant’s Brief where he detailed in

eight points of error why he believed his conviction should be overturned.

(CR p. 109-148). Trial counsel filed a Motion for Additional Funds for



                                      11
Investigator on February 3, 2014 that was granted by the trial court. (CR. p.

149, 151). Trial counsel filed a Motion for Withdrawal that was granted

April 4, 2014. (Supp. CR p. 3, 5). This appellate counsel was reappointed as

appellate counsel for procedural purposes on April 4, 2014. (Supp. CR p. 6).



            STATEMENT OF FACTS AND PROCEDURES

      On April 5, 2013 Brown was arrested for Retaliation stemming from

an incident occurring after his parental rights were terminated as to his eldest

daughter, three-year-old Layla. (CR p. 6). Once the jury returned a verdict

terminating his parental rights, it was alleged that Brown “stormed” out the

courtroom Id. As he waited at the elevator he allegedly hurled threats at 1.

Jannice Joseph, the Assistant District Attorney who prosecuted the case; 2.

Sara Laney, the CPS caseworker; and 3. Cynthia Dyar, the Attorney ad litem

for the child. Id. The threats, according to the alleged victims, involved the

following language:



                          “I know where you live…

                          I’m coming for you…

                          I am getting the electric chair…

                          My life is over…” Id.




                                      12
      Brown was appointed counsel on May 1, 2013. Prior to indictment,

Brown filed pro se Motions Requesting an Examining Trial and Motion for

Speedy Trial. (CR pgs. 13, 15). Neither motion was ruled upon by the trial

court at that time. (CR pgs. 15, 18). A three-count indictment alleging

Brown committed the offense of Retaliation was returned by a Travis

County Grand Jury on May 29, 2013. (CR p. 19). Thereafter, Brown filed a

pro se Motion for Discovery (CR p. 21). It does not appear that the trial

court entered a Standing Discovery Order.

      Recognizing there would possibly be disputed issues of fact, Brown’s

court appointed counsel filed a Motion for the Appointment of an

Investigator. Said motion was granted by the trial court on May 30, 2013

(CR p. 27). Brown filed pro se Motions for Reduction of Bond and Motion

to Suppress Evidence on July 12, 2013 (CR pgs. 28, 31) which do not appear

to have been ruled upon by the court at that time. (CR pgs. 30, 32).

      Brown also filed pro se Motions to Quash Indictment on September 4,

2013 and October 9, 2013 (CR pgs. 35, 42) which also do not appear to have

been ruled upon by the court at that time. (CR pgs. 39, 46). Brown’s court

appointed counsel filed a Motion to Have the Defendant Examined by a

Psychiatrist on September 4, 2013 to determine if competency was an issue

(CR p. 40). Said motion was granted by the trial court (CR p. 41). After



                                      13
having waived his right to a jury trial at arraignment, a trial before the court

began on October 23, 2014. Brown was found guilty and sentenced to 15

years in the Texas Department of Correction (CR p. 52).

       A trial before the court was commenced on October 23, 2013. The

court overruled all pretrial motions at that time. The state called Attorney ad

Litem Cynthia Dyar as its first witness (RR p. 10, line 22). Ms. Dyar

testified that she represented Mr. Brown’s oldest child, Layla who was

removed from her parents because of abuse and neglect allegations. (RR. p.

11, line 1). Ms Dyar testified that after the verdict was read Mr. Brown

“stormed” out the courtroom with his mother before the entire verdict was

read. (RR p. 16, lines 3-8). Ms. Dyar testified that once she, Ms. Joseph and

Ms. Laney left the courtroom and entered the hallway that Mr. Brown

started “screaming” at us “I’ll get the electric chair for what I do.” (RR p.17,

lines 4-6; RR p. 21, line24). Ms. Dyar testified that as Sheriff’s deputies

stood between both she, the other ladies and Mr. Brown that Mr. Brown said

“I know where you live” on more than one occasion, that “his life was over”

and that the state “would not get his other daughter.” (RR p. 22, lines 1-5).

Ms. Dyar testified that although Mr. Brown did not say her name and

sheriff’s deputies were in between the two parties she felt the threats were

intended for her and that it was the “scariest thing someone has said to me.”



                                      14
(RR. p. 22, lines 24-25; RR p. 24, lines 1-2). Ms. Dyar testified that the

courthouse security video gives only “partial angles,” but that Mr. Brown

was “agitated, pacing back and forth” in front of the elevator and then got on

the elevator once it opened. (RR p. 27, lines 2-6). On cross examination, Ms

Dyar admitted that Mr. Brown did not threaten the three ladies specifically,

that he never said “I’m coming--” and that he was expressing his grief, but

she still felt threatened (RR p. 30. lines 24-25; RR p. 31, lines 1-2); RR p.

31, lines 14-15 & 23-25). Despite feeling threatened, a representative from

Ms. Dyar’s office again attended court with Mr. Brown a few days later. She

also admitted and that it was possible Mr. Brown was hitting the elevator

button as he “paced” in the hallway and that Mr. Brown was only in the

hallway 45 seconds. (RR p. 32, lines 7-16; RR p. 33, lines 20-21; RR p. 34,

lines 6-7).



      Sara Laney, CPS caseworker testified that Mr. Brown appeared

agitated as he waited for the elevator with sheriff’s deputies standing

between her and the other ladies and began making threats that appeared to

be directed at the three ladies because he “was looking directly at us” (RR p.

38, lines 24-25; RR p. 39, lines 1-3). Ms. Laney testified that he repeated “I

don’t care if I get the electric chair, I know where you live, let them arrest



                                     15
me.” (RR p. 39, lines 13-19). She testified that she was scared because CPS

parents such as Mr. Brown could know where she lived since she transports

their children in her personal vehicle and that until the day Mr. Brown was

arrested the police routinely checked on her well being while at home. (RR

p. 40, lines 23-25; RR p. 41, lines 2-10; RR p. 41, lines 6-12). On cross

examination, Ms. Laney admitted that Mr. Brown called her right before

trial and said “take my baby, see what happens” which also made her

“uncomfortable.” (RR p. p. 42, lines 14-16). Ms. Laney admitted that her

back was to him when he started yelling and that he was closer to the

sheriff’s deputies than he was to she and the other two alleged victims. (RR

p. 46, lines 10-12: RR p. 48, lines 22-25). Ms. Laney also testified that Mr.

Brown said something to the extent of “they’ve taken my babies, my life is

over.” (RR p. 49, lines 18-21).

      Assistant District Attorney Jannice Joseph testified that Mr. Brown’s

behavior was “up and down” during the trial, that sometimes he was “fine”

and that he made some outbursts during the state’s closing arguments, but

she became more concerned when she thought she saw him “write down the

foster mothers information.” (RR p. 54, lines 15-23); (RR p. 55, lines 13-16

& lines 21-23). She testified that Mr. Brown “stormed out” while the judge

was still speaking, that the distance between she and he was less than thirty



                                     16
feet and that he was obviously “angry and upset” when he began muttering

“I know where you live…I got D and E so Ariana [defendant’s younger

daughter who was not a party to this case] is gone…My life is over, I’m

going to get the electric chair.” (RR p. 57, lines 16-19): (RR p. 60, lines 19-

23); (RR p. 61, lines 6-9); (RR p. 61, lines 20-23 & p. 62, lines 1-6). Ms.

Joseph testified that “he looked right at her” as he uttered those words,

making her “concerned for her safety” even while Mr. Brown’s mother

attempted to calm him, telling him to stop because “nobody is going to do

anything.” (RR p. 62, lines 9-12; lines 17-19 & lines 21-25).

      On cross-examination Ms. Joseph testified that prior to this incident

she witnessed Mr. Brown “intimidate” the caseworker once through his

“mannerism” after a ruling he didn’t like, but that he didn’t overtly “say

anything.” (RR p. lines 11-12 & lines 21-22). She went on to testify that it

would surprise her to hear sheriff’s deputies present at the time of the

incident testify that Mr. Brown was not “threatening anyone,” was instead

“blowing off steam” and that he “was talking to his mother” and not to

[them]. (RR. p. 66, lines 6-9 & 12-15). Ms. Joseph further testified that very

soon after this incident she also attended another hearing with Mr. Brown

where “he was in the same room with her,” exhibited no threatening

behavior to anyone present and that the threats she felt he made in the instant



                                      17
case were “implied and not direct.” (RR p. 67, lines 8-19 & lines 12-25).

      Defense counsel moved for a directed verdict based on State of Texas

v. Connick, _________________________. (RR p. 69, lines 15-24). The

state opposed, arguing that the evidence showed defendant threatened

assault and aggravated assault when he said he would get “the electric

chair.” (RR p. 70, lines 21-25; RR p. 71, lines 1-4). After a short recess, the

court denied the motion for directed verdict distinguishing the authority

defense relied upon by noting it was “a different type of witness” and that in

the instant case a “whole range of threats from assault to murder” had

allegedly been made. (RR p. 71, lines 15-25).

      The defense called Deputy Melissa Slone as its first witness. Ms.

Slone testified that as Mr. Brown pushed the button for the elevator he was

upset, but quiet when he left the courtroom with his mother, that is until the

three alleged victims entered the corridor where he waited for the elevator.

(RR p. 77, lines 19-23, RR p. 78, lines 5-8). The deputy testified that his

speech became more elevated at the alleged victims appearance outside the

courtroom and said “I can’t live without my kids” and “I know where you

work.” (RR p. 80, lines 2-6 & lines 9-11). But the deputy also believed Mr.

Brown was “talking to his mother” as that is “who he was looking at,” but

“he was talking loud enough to where everybody could hear.” (RR p. 81,



                                      18
lines 5-10). Deputy Slone thought it “understandable” that Mr. Brown was

upset, did hear him say “I know where you work,” but felt that the ladies

were safe and not under any threat. (RR p. 82, lines 7-9, lines 20-22; lines 4-

6). On redirect she also admitted that the entire incident lasted “less than a

minute,” and that she had in fact “observed the entire incident.” (RR p. 85,

lines 6-7 & lines 8-11).

      The defense next called Deputy Porsche Arnold to the stand. She

testified that she did not think Mr. Brown should have been arrested as he

was simply grieving over the loss of his child. (RR p. 86-87, lines 23-25 &

lines 1-2; RR p. 87, lines 3-11). On cross, Deputy Arnold testified that the

alleged victims told her “Mr. Brown said ‘I know where you live,’ but that

she herself had not heard him say that. (RR p. 88, lines 16-22). She also

testified that Mr. Brown was looking at everyone in the corridor, not just the

alleged victims as he made the alleged inflammatory statements, i.e. he was

looking at “everybody…the ladies, me, his mom, everybody that was out

there,” while he repeatedly pushed the elevator button ultimately taking the

first elevator that arrived. (RR p. 88, lines 3-6; RR p. 90, lines 1-5).

      The defense called Deputy Christopher Duncan, an 18-year veteran of

the department, who testified that he overheard Mr. Brown say “I’m not

afraid of dying,” but did not overhear Mr. Brown say “I know where you



                                        19
live.” (RR p. 92, lines 6-14). Deputy Duncan also did not feel that Mr.

Brown should have been arrested as he heard no threats and felt Mr. Brown

was simply upset over the result of the termination hearing. (RR p. 92 lines

15-21). On cross, Deputy Duncan also reiterated that Mr. Brown said he was

not afraid to die and that “he wasn’t afraid of the electric chair” as he stood

between Mr. Brown and the three ladies. (RR p. 93, lines 7-9 & lines 18-21).

      Despite defense counsel’s advice to the contrary, Mr. Brown chose to

testify on his own behalf. Mr. Brown testified that he was talking to his

mother about filing a lawsuit as he waited for the elevator saying once I file

“they’re going to want to give me the electric chair when I’m done.” (RR p.

95, lines 15-21). Mr. Brown testified that as he was talking to his mother he

1. never spoke of harming anyone; Id. 2. never said “I know where you

live.” (RR p. 96, lines 11-14); 3. and never said “I am not afraid of dying,

I’m coming for you” or “When I come to your house they’ll arrest me.” (RR

p. 96, lines 20-25; RR p. 97, lines 1-9), but did say “they’re going to want to

give me the electric chair, they took my babies” and “my life is over if my

kids are gone,” (RR p. 96, lines 17-19). In response his mother said “be quiet

they’re going to take you to jail” which prompted him to say “I’m not afraid

of going to jail.” (RR p. 98, lines 12-17). In reference to the comment

regarding the electric chair, he admitted to speaking “figuratively.” (RR p.



                                      20
98, lines 6-10). He also admitted to making the “electric chair” comment in

civil court as well, but was not arrested saying he felt that with this arrest the

state “was trying to prove a point.” (RR p. 98, lines 18-25). Mr. Brown

testified that he never said he would hurt anyone and that he wasn’t planning

to hurt anyone. (RR p. 99, lines 4-15).

      Mr. Brown admitted he had changed his life, quit selling drugs,

became a licensed HVAC technician, was gainfully employed, but “still

drank and smoked a little powder,” but then quit for the sake of his children.

(RR p.100, lines 6-16). On cross-examination he testified that he never said

“take my baby, see what happens” to the caseworker. (RR p. 101, lines 11-

12) and that as he spoke, he never looked at the three ladies because “his

back was to them” (RR p. 103, lines 6-10).

      At sentencing the defense called Tiffany Boyden, the mother of

Brown’s children. (RR p. 115, lines 8-13). At the point she takes the stand,

Brown calls the judge a “racist” in open court and is removed from the

courtroom. (RR p. 116, lines 5-13). Boyden testified that Brown was

suicidal, not homicidal after the jury’s verdict and felt his “life was over.”

(RR p. 116, lines 23-25). Boyden went on to testify that despite the State’s

contention, Brown was not a violent man and had never “put his hands on

me” in the five years that she had known him. (RR p. 118, lines 4-8). Lastly,



                                       21
Boyden testified that the day of the termination hearing Brown had not eaten

the entire day because he had no money, that she walked 15 blocks from her

home to bring him a burger once the jury returned a verdict, and that they

left the courthouse together “crying” because of the loss of their child. (RR

p. 119, lines 3-13). In closing argument that State asked for 16 years in

prison, Boyden becomes upset and is removed from the courtroom. (RR p.

121, lines 17-25; p, 122 lines 1-5). Brown continues to be disruptive in the

jail behind the courtroom, The judge reiterates that Brown made a “racially

offensive” remark and sentences him to 15 years in the Texas Department of

Correction. (RR p. 123, lines 7-25).




                      SUMMARY OF ARGUMENT

      Brown was unlawfully convicted of Retaliation pursuant to Texas

Penal Code 36.06(a)(1)(a) as there was insufficient evidence to support the

conviction. Brown was denied effective assistance of counsel during a

critical stage of his defense as he was essentially unrepresented during the

75-day time period in which to have a hearing on his Motion for New Trial.




                                       22
                     ARGUMENT AND AUTHORITIES


I. The trial court erred as there was insufficient evidence to convict
Appellant of Retaliation pursuant to Texas Penal Code § 36.06.


              a.    THE EVIDENCE LACKS LEGAL SUFFICIENCY

      In evaluating sufficiency of the evidence, the standards for review are

well established. In applying a legal sufficiency standard, courts review all

the evidence “most favorable to the verdict and decide whether any rational

trier of fact could have found the essential elements of the offense beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); See also Herrin v.

State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002).

      Deference is given to the trier of fact in resolving conflicts in

testimony, weighing the evidence and drawing reasonable inferences

between the facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318-19). Any inconsistencies in the

evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394,

406 (Tex.Crim.App.2000). In evaluating factual sufficiency, courts review

all the testimony and evidence “without construing it favorably to either

party and can set aside a verdict only if it is so contrary to the overwhelming

                                      23
weight of the evidence as to be clearly wrong and unjust.” Clewis v. State,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996).



        The offense of retaliation involves global factors. The statute’s

purpose is to encourage "a certain class of citizens to perform vital public

duties without fear of retribution." In re B.M., 1 S.W.3d 204, 207 (Tex.App.-

Tyler     1999)   (quoting Doyle      v.    State, 661    S.W.2d     726,    728

(Tex.Crim.App.1983). The vital public duties include “reporting criminal

activities, testifying in official proceedings, or cooperating with the

government in a criminal investigation.” Morrow v. State, 862 S.W.2d 612,

615 (Tex. Crim. App.1993).



        The threatened retaliatory harm need not be imminent nor must the

defendant intend to carry out his threat. B.M., 1 S.W.3d at 207; Coward v.

State, 931 S.W.2d 386, 389 (Tex. App.-Houston 1996); Puckett v. State, 801

S.W.2d 188, 194 (Tex. App.-Houston 1990). The offense of retaliation is a

result-oriented offense where the focus is on whether the behavior is done

with an intent “to effect the result specified in the statute.” Herrera v. State,

915 S.W.2d 94, 98 (Tex. App.-San Antonio 1996).




                                       24
         Brown challenges the legal sufficiency of the evidence that he

threatened to harm Dyar, Laney and Joseph. Dyar, Laney and Joseph

testified that they heard him say “I know where you work,” “I’m gonna get

the electric chair” and “my life is over.” (RR p. 22, lines 1-5); (RR p. 39,

lines 13-19); and (RR p. 57, lines 16-19), (RR p. 60, lines 19-23), (RR p.

61, lines 6-9), (RR p. 61, lines 20-23 & p. 62, lines 1-6). The three victims

testified that they took those statements as threats because of the ruling just

minutes before terminating Brown’s rights as to his 3-year-old daughter,

Layla.     As further evidence of legal insufficiency, Brown points to the

testimony of officers Slone, Arnold and Duncan who all testified that they

did not feel Brown had done or said anything “that would have resulted in an

arrest.” (RR p. 82, lines 7-9, lines 20-22; lines 4-6); (RR p. 86-87, lines 23-

25 & lines 1-2; RR p. 87, lines 3-11); and (RR p. 92 lines 15-21).

         Brown also challenges the legal sufficiency of the evidence that he

intended to retaliate against Dyar, Laney and Joseph because of their work

on his daughter’s parental rights termination case. Brown testified that he

had “just lost his child’ and that because of that “he felt his life was over.”

(RR p. 96, lines 17-19). Brown testified that “no one threatened nobody.”

(RR p. 99, lines 4-15). As further evidence of his non-retaliation, Brown

points to the testimony of officers Arnold and Duncan who said they felt


                                      25
Brown was only “grieving” when he made the inflammatory statements. (RR

p. 86-87, lines 23-25 & lines 1-2; RR p. 87, lines 3-11); and (RR p. 92 lines

15-21).

      As to each of Brown's challenges to the legal sufficiency of the

evidence, even when viewing the evidence in the light most favorable to the

State, we believe a rational factfinder did not have enough evidence to

convict Brown of retaliation beyond a reasonable doubt. Thus, Brown

maintains the evidence was legally insufficient.


             b.     THE EVIDENCE LACKS FACTUAL SUFFICIENCY




      In evaluating factual sufficiency of the evidence, courts first assume

that the evidence is legally sufficient. See Santellan v. State,939 S.W.2d 155,

164 (Tex.Crim.App.1997). However, in regards to factual sufficiency, a

neutral review of the evidence must demonstrate that the proof of guilt is

either 1. so weak as to undermine confidence in the jury’s determination; or

2. is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,

11 (Tex.Crim.App.2000); See also Goodman v. State,66 S.W.3d 283, 285

(Tex.Crim.App.2001). Thus, there are two ways in which the evidence may

be factually insufficient.



                                      26
         “First, when considered by itself, evidence supporting the
         verdict may be too weak to support the finding of guilt beyond
         a reasonable doubt. Second, there may be both evidence
         supporting the verdict and evidence contrary to the verdict.
         Weighing all the evidence under this balancing scale, the
         contrary evidence may be strong enough that the beyond-a-
         reasonable-doubt standard could not have been met, so the
         guilty verdict should not stand.” Zuniga v. State, 144 S.W.3d
         477, (Tex.Crim.App.2004).


Brown challenges the factual sufficiency of the evidence that he threatened

to harm Dyar, Laney and Joseph. Contrary to the testimony of the three

victims that Brown threatened assault and aggravated assault when he said

“I’m gonna get the electric chair,” Brown points out that he was talking to

his mother about filing a lawsuit as he waited for the elevator saying once I

file “they’re going to want to give me the electric chair when I’m done.”

(RR p. 95, lines 15-21).2                 Brown testified that as he was talking to his

mother he 1. never spoke of harming anyone; Id. 2. never said “I know

where you live.” (RR p. 96, lines 11-14); 3. and never said “I am not afraid

of dying, I’m coming for you” or “When I come to your house they’ll arrest

me.” (RR p. 96, lines 20-25; RR p. 97, lines 1-9). Accordingly, Brown

believes that the evidence was factually too weak to support the verdict.




2This attorney has determined that Brown did in fact file a lawsuit against the State of Texas in regards to
his parental rights termination lawsuit under cause number ___________.


                                                     27
      Furthermore, Brown challenges the factual sufficiency of the evidence

that he intended to retaliate against Dyar, Laney and Joseph, arguing that the

proof of those elements is outweighed by contrary proof. In addition to

Brown’s own testimony, Officer Slone testified as to Brown’s lack of intent,

testifying that she thought it “understandable” that Mr. Brown was upset and

felt that the ladies were safe and not under any threat. (RR p. 82, lines 7-9,

lines 20-22; lines 4-6).

      Officer Arnold also testified as to Brown’s lack of intent at retaliation,

testifying that Brown did not look only at the victims, but everyone in the

corridor as he made the inflammatory statements and believed Brown was

simply “grieving” over the loss of his child. (RR p. 86-87, lines 23-25 &

lines 1-2; RR p. 87, lines 3-11). Officer Duncan testified as well as to

Brown’s lack of intent saying under oath that he did not hear Brown make

any threats and that he felt Brown was simply “upset” over the result of the

termination hearing. (RR p. 92 lines 15-21). Accordingly, Brown believes

the evidence was so factually weak as to undermine confidence in the

verdict.


      Section §36.06 has been described as a good example of the `Chinese

Menu' style of alleging the elements of a penal offense" by the Texas Court



                                      28
of    Criminal    Appeals.     Cada        v.     State,   334   S.W.3d   766,   770

(Tex.Crim.App.2011);         Geick    v.        State,     349   S.W.3d   542,   546

(Tex. Crim. App. 2011). Several of the elements present alternatives for

charging the offense. Cada, 332 S.W.3d at 770. The elements and

alternatives of the offense of retaliation are:

(1) The Defendant
(2) a. intentionally (or)
       b. knowingly
(3) a. harms (or)
       b. threatens to harm
(4) another person
(5) by an unlawful act
(6) a. in retaliation for (or)
       b. on account of
(7) a. the service of another (or)
       b. the status of another
(8) as a
       a. public servant
       b. witness
       c. prospective witness [or]
     c. informant. Id.


        The State must allege at least one item from each numbered

category. Id. The elements can be plead in combination and “it is sufficient

if the proof at trial establishes any one of the alleged alternative elements

beyond a reasonable doubt.” Id. at 770-71. We measure the sufficiency of

the evidence by the specific alternative elements alleged by the State in the

charging instrument. Id. at 773-74. No other elements are considered. Id. at

                                            29
774 (citing Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999)

(State’s evidence was insufficient to prove the one theory of solicitation of

capital murder that it had alleged even though it was sufficient to prove the

unplead statutory alternative). Due process requires the State to prove each

element of the offense alleged beyond a reasonable doubt. Id. at 774, 776.




                    i.    INTENTIONALLY OR KNOWINGLY




      A person acts intentionally when it is his conscious objective or desire

to engage in the conduct or cause the result. Texas Penal Code § 6.03(a). A

person acts knowingly when he is aware of the nature of his conduct or that

his conduct is reasonably certain to cause the result. Id. § 6.03(b). Intent can

be inferred from the acts, words, and conduct of the accused. See Beltran v.

State, 593 5 S.W.2d 688, 689 (Tex. Crim. App. 1980). Under § 36.06 if the

act is done negligently or recklessly, it is not an illegal act. See TEX.

PENAL CODE ANN. § 36.06(a)(1)(A).



      Brown argues that he did not act intentionally as he made the

inflammatory comments just moments after hearing a jury verdict

terminating his parental rights. He was emotional as he vented to his mother

                                      30
while waiting for the elevator and felt “his life was over.” (RR p. 96, lines

17-19). There was no “conscious desire” to retaliate against the three victims

as he made promises to his mother to file a lawsuit. Nor did Brown act

knowingly as he made the inflammatory comments as that would require

that he be “aware that his conduct is reasonably certain to cause another” to

feel retaliated against. Brown would argue that a person who has just lost his

child should be entitled to verbally grieve. Even three deputies charged with

the duty of safety and security all agree that Brown was doing just that,

simply grieving. The defense presented evidence showing Brown made “off-

hand, one-time statements in anger” immediately after a ruling, and those

statements were “never uttered again.” See Lebleu v. State, 192 S.W.3d 205

(Tex. App. Houston 2006)(Evidence sufficient for conviction of retaliation

where appellant did not make off-hand, one-time statements in anger

immediately following a ruling, but made several statements over a period of

time).


                     ii.   HARMS OR THREATENS TO HARM


         The record has established that Brown did not actually harm Dyar,

Laney and Joseph. However, a threat is a communicated intent to inflict

harm. See BLACK'S LAW DICTIONARY 1519 (8th ed.2004). The word



                                     31
threat is not defined under section 36.06. See §36.06. In determining if a

statement should be considered a threat, courts look at both the context in

which the comments were made and the language used. Manemann v.

State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994). In determining if the

subject comment is a threat, an objective standard is used, namely “whether

a reasonable person would foresee that the statement would be interpreted by

those to whom the maker communicates the statement as a serious

expression of intent to harm or assault.” United States v. Orozco-

Santillan, 903   F.2d   1262,   1265    (9th   Cir.1990); United   States   v.

Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987). The test is whether a threat

justifies fear by an ordinary hearer, not whether the threat caused a specific

listener to actually become fearful. State v. Weippert, 237 N.W.2d 1

(N.D.1975)(emphasis added).




   Dyar, Laney and Joseph testified that Brown said “I know where you

work” and “I’m gonna get the electric chair.” – just moments after hearing

the jury verdicts which terminated his parental rights as to his oldest child.

Though these words may have caused the three to feel fear, the test is

whether an ordinary hearer would be fearful. Brown argues that there were

three other ordinary hearers in the corridor that day, namely the three


                                       32
deputies who overheard his comments and who all agreed that Brown

neither did or said anything that justified him being convicted of a felony

retaliation charge. Accordingly, we believe the State failed to prove this

element of the offense.




                   iii.   …ANOTHER BY AN UNLAWFUL ACT:



   “Unlawful” is defined as “criminal, tortious or both and includes what

would be criminal or tortious, but for a defense not amounting to

justification or privilege.” Texas Penal Code § 1.07(48). In the instant case,

the indictment alleged the threatened “unlawful act” to be assault and

aggravated assault. (CR p. 19). The State presented evidence that because

Brown said in some context “I’m gonna get the electric chair” that actions

which garner the electric chair amount to some form of assault or aggravated

assault. (RR p. 71, lines 23-25; p. 72, lines 1-2). However, Brown contends

that the missing element of proof is any evidence that his words threatened

unlawful action, especially where he testifies his exact statement was “once I

file a lawsuit, they’re going to give me the electric chair.” (RR p. 95, lines

15-21). See Meyer v. State, 366 S.W.3d 728 (Tex. App. Texarkana 2012),

(Insufficient evidence of retaliation where defendant sends a letter to the


                                     33
judge not threatening unlawful action, but threatening both criminal

prosecution and civil action against those who violate his rights).


  iv.    IN RETALIATION FOR OR ON ACCOUNT OF THEIR SERVICE AS A PUBLIC
                                SERVANT




        The Texas Penal Code requires that “no person may be convicted of

an offense unless each element of the offense is proved beyond a reasonable

doubt.” Tex. Penal Code Ann. § 2.01. The Texas Courts of Appeals require

that the State present evidence that the unlawful act was “in retaliation for or

on account of the service or status of a public servant,” i.e. the State must

prove a retributory intent element. As to the interpretation of this section of

36.06, the Texas Courts of Appeals are split. Some courts require that the

retributory intent be based on duties “already performed” by the public

servant while other courts believe the retributory intent can be performed “at

the same time” as the discharge of duties. See Wright v. State, 979 S.W.2d

868, 869 (Tex.App. Beaumont 1998) (where Riley v. State, 965 S.W.2d 1, 2

(Tex.App. Houston 1997), required "a retributive attack for duties already

performed," v. Stafford v. State, 948 S.W.2d 921, 923-24 (Tex. App.

Texarkana 1997), and McCoy v. State, 932 S.W.2d 720, 724 (Tex.App. Fort

Worth 1996) (upheld convictions based upon a single incident). But see also



                                      34
Wilkins v. State, 279 S.W.3d 701 (Tex. App. Amarillo 2007)(Evidence

insufficient to revoke defendant’s term of community supervison based on

retaliation by a preponderence of the evidence where there was no evidence

the threatening remark was made with the retaliatory intent of placing the

hearer in fear of retribution for his public service as a district judge); In re

M.M.R., 932 S.W.2d 112, 115 (Tex. App. El Paso 1996) (Evidence

insufficient to show violation of §36.06 where it was not shown the assault

occurred “on account of” the service of the public servant where juvenile

was attempting to escape detention officer in order to continue fight with

another detainee).




      Whether this section of §36.06 requires that the retributory intent be

based on public service duties “already performed” or “at the same time” as

the discharge of duties, Brown believes there is insufficient evidence to

prove either. Because 36.06 is a result oriented offense, the action

criminalized is the threat to harm and the intent to inhibit public service by

others. Thus, the focus is not on whether Brown made a threatening

statement because of the work of Dyar, Laney and Joseph as public servants

on Brown’s parental rights termination case, but rather did Brown make his

statements with the intent to inhibit Dyar, Laney and Joseph’s service as a

                                      35
public servant with knowledge that it was reasonably certain that his

statement would inhibit Dyar, Laney and Joseph’s service as a public

servant? The record reflects that given the discovery of the Kaufman County

murders just two days later-- Dyar, Laney and Joseph perceived Brown’s

comments as threats, but testified that the Kaufman murders did not effect

their prosecution of this case. (RR p. 43, lines 7-9; p. 66, lines 23-25 & p.

67, line 1).3 However, the record contains no evidence that Brown intended

or was reasonably certain that his stated intent for “getting the electric chair”

would in any way affect the performance or be on account of Dyar, Laney

and Joseph’s status as public servants or cause the three of them to fear

retribution. Brown was simply grieving and contemplating filing a lawsuit.

        Furthermore, the record shows that Brown left the courthouse as soon

as the elevator arrived and that he had subsequent CPS hearings prior to his

arrest for the instant offense where he showed no ire toward Dyar, Laney

and Joseph and behaved appropriately. (RR p. 82, lines 1-6; RR p. 66, lines

20-22). Accordingly, we believe that no reasonable person could believe

beyond a reasonable doubt that Brown made a threatening remark with the

required retaliatory intent of placing Dyar, Laney and Joseph in fear of
3 On March 30, 2013 just two days after Brown’s termination hearing ended, the bodies of Kaufman
County District Attorney Michael McClelland and his wife Cynthia were found in their home. Both had
been shot and killed “execution-style.” The case received widespread attention because it was initially
thought the Aryan brotherhood was responsible, but later determined that a local Justice of the Peace was
the culprit. http://dfw.cbslocal.com/2014/12/28/kim-williams-to-plead-guilty-for-her-part-in-kaufman-
murders/


                                                   36
retribution as a result of their duty as public servants. Whether Dyar, Laney

and Joseph were public servants or not, Brown would have made the same

statements given that he felt his constitutional rights had been violated and

that he felt “his life was over” at losing parental rights to 3-year-old Layla.

See Wiggins v. State, 255 S.W.3d 766 (Tex. App. 2008)(Evidence sufficient

for retaliation conviction where at arrest defendant espouses threats and

threatening behaviors solely because of police officer’s actions while acting

as a public servant).




                                C. THE VIDEO

      THE DEFENDANT: That's not even the real
      video. My back was to them. They lying.
      Man, that's cold. They're going to find
      me guilty. (RR p. 74, lines 6-9)


      MR. IVY: Mr. Brown has asked that I
      subpoena to this hearing the person with
      the most knowledge of the video operations
      at the old courthouse and the person who
      was responsible for deciding what video
      footage the Court got to see this morning.
      I've explained to Mr. Brown that I didn't
      think the Court would stand for that kind
      of subpoena, that it would be found
      irrelevant. So I did not.


      THE COURT: Okay. (RR p. 74, lines 20-25)


                                      37
      When the record shows a trial court’s ruling is based on a

determination that could not have possibly been derived from facts

developed during trial, the appellate court “must keenly review the issue.”

Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008).

      In such an instance, should the appellate court affirm the trial court

ruling, it commits error. Id. at 342. When objective evidence such as a video

recording fails to support the trial court’s ruling, appellate courts are

justified in not giving deference to the trial court’s ruling that are based on

any portion of the record contrary to what is objectively shown on the video

recording. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App.

2000); See also Mayes v. State, 8 S.W.3d 354, 358-61 (Tex. App. Amarillo

1999).

      State’s Exhibit 4 is a video purporting to show some version of the

events which are the subject of Brown’s conviction. Part I shows someone

who appears to be Mr. Brown exiting the courtroom. (RR at 12.11.28).

However, the video is cropped in such a way that you can not see whether it

is actually him. Next the video shows Brown appearing to exit again with his

civil trial counsel. (RR at 12.11.54). A Sheriff’s deputy follows moments

later. (RR at 12.12.07). Three Sheriff’s deputies appear to leave the

courtroom followed closely by Dyar, Laney and Joseph. (RR at 12.12.45).

                                      38
Part 2 shows the elevator opening and closing on two separate occasions.

(RR at 12.12.04 and 12.12.22). Brown appears in the left corner of the

screen, the camera captures the back and left profile of him. (RR at

12.13.12). Brown walks in and out of the screen, appearing to be waiting on

the elevator. Brown does not appear agitated nor does he appear to be

talking. (Id.). The elevator then opens and closes. (RR at 12.14.33).



      The record does not reflect that Mr. Brown left the courtroom twice as

no witness testified to such. Though there was testimony that Brown was

speaking to his mother when he made the inflammatory comments, the video

is cropped in such a way that you can not see anyone to the left of the

screen. (See RR at 12.13.12). Accordingly, Brown believes the video

evidence introduced at trial is insufficient to show he “looked right at” Dyar,

Laney and Joseph while he spoke, in fact the video does not appear to show

him speaking at all. Further, Brown believes the video evidence is

insufficient to support his conviction for the offense of Retaliation.




                                       39
II. Did the trial court err when it overruled Appellant’s Motion to
Quash Indictment in violation of the Sixth Amendment to the United
States Constitution?


      The Sixth Amendment to the United States Constitution provides that

a criminal defendant has the right to be informed of the accusation pending

against him. See U.S. CONSTITUTION, AMENDMENT VI. Therefore,

an indictment must allege all the elements of the crime to such a degree of

precision that it would allow the accused to assert double jeopardy if the

same charges are brought up in subsequent prosecution. Id.; See also United

States v. Cruikshank, 92 U.S. 542 (1876).

      Moreover, the Texas Constitution and Code of Criminal Procedure

require   that   an   indictment   provide   an   accused   with   adequate

notice. See State v. Mays,967 S.W.2d 404, 406 (Tex.Crim.App.1998); Tex.

Const. art. I., § 10; Tex.Code Crim.Proc.Ann. § 1.05. An indictment must

allege the commission of an offense with enough certainty that the defendant

can "plead the judgment that may be given upon it in bar of any prosecution

for the same offense." Tex.Code Crim.Proc.Ann. § 21.04. Article 21.11 of

the Code of Criminal Procedure drives the point even further:


      An indictment shall be deemed sufficient which charges the
      commission of the offense in ordinary and concise language in
      such a manner as to enable a person of common understanding


                                     40
      to know what is meant, and with that degree of certainty that
      will give the defendant notice of the particular offense with
      which he is charged. Id.

The State is bound by the allegations it sets out in the indictment and it must

prove those particular allegations because of due process requirements,

beyond a reasonable doubt. Taylor v. State, 637 S.W.2d 929, 930 (Tex.

Crim. App. 1982).


      Once a Motion to Quash is filed, however, an indictment must provide

more specific allegations “if the prohibited conduct is statutorily defined to

include more than one manner or means of commission.” Benson v. State,

661 S.W.2d 708 (Tex. Crim. App. 1983); Saathoff v. State, 891 S. W. wd

264, 266 (Tex. Crim. App. 1994). Using the reasoning of Doyle, the

indictment in the instant case failed to specify “the manner and means” by

which Brown committed the offense of Retaliation. Doyle v. State, 661

S.W.2d 726, 727 (Tex.Crim. App.1983)(Trial court erred in overruling the

motion to quash because the indictment did not allege "facts sufficient to bar

a subsequent prosecution for the same offense" or give the defendant

“precise notice of the offense with which he was charged." Id. at 731).

      In the instant case the threat could have been conveyed in a number of

ways. Moreover, there are several ways in which a defendant may actually



                                      41
commit “assault or aggravated assault” as per the indictment. Accordingly,

Brown believes the indictment in this case is fundamentally defective and

insufficient to provide him notice of the offense charged as is his

constitutional right. Furthermore, Brown’s Motions to Quash Indictment

were never ruled upon by the trial court. (CR p. 39, 46). Brown also re-urged

his Motions to Quash Indictment at the conclusion of the trial to no avail as

the trial was over. (RR p. 113, lines 1-7).


III. Was there ineffective assistance of counsel where trial counsel failed
to withdraw and there was no hearing held on Appellant’s Motion for
New Trial within the 75-day time period?


      In determining ineffective assistance by counsel, it is well-established

that a two-prong analysis must take place. Deficient performance of counsel

must be established first and second that the deficient performance deprived

defendant of a fair trial. Strickland v. Wasington, 466 U.S. 668, 692 (1984).

Here, appellant must show that there is “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 693.

      Where the attorney’s actions are without sound foundation, only then

will an error in trial strategy be deemed inadequate representation.   See

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).   Courts



                                       42
generally presume that the action (or inaction of trial counsel) is trial

strategy when the record is silent as to trial counsel’s motivations regarding

the   case   at   bar.       Thompson     v.   State,   9   S.W.3d   808,   814

(Tex.Crim.App.1999).   A claim of ineffective assistance of counsel will be

upheld only where the record affirmatively supports such a claim.  

Thompson 9 S.W.3d at 812; Garcia v. State, 57 S.W.3d 436, 440

(Tex.Crim.App.2001); Strickland, 466 U.S. at 689. It is only when the

manner of managing the particular case is “so outrageous that no competent

attorney would have engaged in it” that the challenged management of the

case will constitute ineffective assistance. Id. Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. Id. Courts have distinguished between those cases

were appellant’s were denied benefit of counsel, from those cases where

counsel provided ineffective assistance. Smith v. Robbins, 528 U.S. 259

(2000). Where appellant has been denied trial counsel there is a presumption

of prejudice. Id. at 286. Conversely, where there is ineffective assistance of

counsel, no presumption of prejudice is assumed. Id.

      Furthermore, both the Supreme Court and the 5th Circuit have

determined that “the absence of counsel at critical stages of a defendant's

trial undermines the fairness of the proceeding and therefore requires a



                                     43
presumption that the defendant was prejudiced by such deficiency.” Burdine

v. Johnson, 262 F. 3d 336, 345 (5th Cir. 2001); See also United States v.

Cronic, 466 U.S. 648, 659 (1984); United States v. Russell, 205 F.3d 768,

770-71 (5th Cir. 2000). Both Cronic and Strickland stand for the proposition

that the absence or denial of trial counsel at a critical stage of a criminal

proceeding is an “egregious circumstance requiring the presumption of

prejudice.” Burdine, 262 F. 3d           at 344; Cronic 466 U.S. at 659;

Strickland 466 U.S. at 692.


      Brown believes such applies to the facts of his case as trial counsel

did not file any pretrial motions nor did he call a key witness who witnessed

firsthand the language which is the subject of the instant conviction.

Moreover, trial counsel did not subpoena the individual responsible for

generating the video entered into evidence at trial. Brown believes the video

was edited in such a way to further enhance the State’s case in violation of

his constitutional rights to due process. (See State’s Exhibit 4).


      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.Crim.App. 2007).



                                       44
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).

      Brown 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. 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). 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 Brown was deprived of counsel during this critical

stage. Moreover, trial counsel did not file a Motion to Withdraw until April

4, 2014.

      “Deprivation of counsel is subject to a harmless error or prejudice

analysis.” Cook at 911. To show harm, there must be “facially plausible




                                     45
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).

      In the instant case, the issue had a motion for new trial taken place

would have been 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 Travis County personnel

responsible for video services. Valerie Brown is Brown’s mother who was

present when the complained of language in the indictment was uttered.

      Lastly, a new trial can 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




                                      46
of a new trial involves the violation of a clear legal right or a manifest abuse

of judicial discretion.” Id. at 809.


           In his 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,4

Brown filed a letter from the trial judge where the trial judge indicated

Brown’s sentence would have been significantly reduced had he been able to

have a hearing on his motion for new trial.

           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

hearing on Mr. Brown’s Motion for New Trial occurred, it is likely the trial

judge would have significantly reduced his sentence from 15 years in the

Texas Department of Correction. Brown believes trial counsel provided him

ineffective assistance of counsel by not having a hearing on the motion for

new trial which would have resulted in his sentence being significantly

reduced..




4   Motion to Abate Appeal… was filed December 24, 2014 via efile.


                                                   47
                          PRAYER FOR RELIEF

      For the reasons addressed in this brief, Appellant prays that this Court

reverse the trial court’s conviction of Appellant for the instant offense.




                                        Respectfully submitted,

                                        BERNARD & ASSOCIATES
                                        1203 Baylor St.
                                        Austin, TX 78703
                                        Phone: (512) 478-5291
                                        Fax: (512) 478-9827
                                        ATTORNEYS FOR APPELLANT


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

                                    Email: attorneybernard@yahoo.com

                                            tanisaL@hotmail.com




                                       48
                   CERTIFICATE OF COMPLIANCE

In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellants’ Brief contains 7,392 words, which does not include the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues
presented, signature, proof of service, certificate of compliance, and
appendix.

/s/ Tanisa Jeffers
TANISA JEFFERS

                      CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has
been served upon the below named individuals as indicated, and according
to the Texas Rules of Civil Procedure and/or via electronic mail pursuant to
the parties’ written agreement that such service shall constitute personal
service on the 29th day of December, 2014.

Rosemary Lehmberg via electronic notice
Appellate Division: rosemary.lehmberg@traviscountytx.gov
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78701


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




                                      49
Exhibit A




    50
