                                                                   June 18, 2016
                                       IN THE

                           THIRD COURT OF APPEALS

                                   AT AUSTIN, TEXAS



                 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 RULE 68 PETITION FOR DISCRETIONARY REVIEW



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 (c/o William G. Swaim III)
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 38-
                    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 38-
                                              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
   4. Did the trial court err when it allowed Police Officer Pile to testify from the Assault Victim
       Statement over Appellant’s objection in violation of the public records exception under
       Texas Rules of Evidence 803(8)(b)………………………………………………………..25

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 38-
                               TABLE OF AUTHORITIES

CASES:
Jackson v. State, 443 U.S. 307 (1979) ...........................................................................21
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ....................................21
Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002) ........................................21
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ..........................................21
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000) ...........................................21
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) ....................................21
In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999) ...........................................21, 22
Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App.1983) .........................................21
Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App.1993) ...................................22
Coward v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston 1996) ...............................22
Puckett v. State, 801 S.W.2d 188, 194 (Tex. App.-Houston 1990) ................................22
Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.-San Antonio 1996) ............................22
Santellan v. State,939 S.W.2d 155, 164 (Tex.Crim.App.1997)………...……………..24
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000)………………..……………24
Goodman v. State,66 S.W.3d 283, 285 (Tex.Crim.App.2001)…………………………….24
Zuniga v. State, 144 S.W.3d 477, (Tex.Crim.App.2004).……………………………………...24
Cada v. State, 334 S.W.3d 766, 770 (Tex.Crim.App.2011)………….………………..26
Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011)………………………….26
Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999)……………………….……….26
Beltran v. State, 593 5 S.W.2d 688, 689 (Tex. Crim. App. 1980)……….…………….…..27
Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston 2006)………….………………………...28
Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994)……………………...28
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)…………………29
United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987)……………...………..29
State v. Weippert, 237 N.W.2d 1 (N.D.1975)…….……….………………………………..29
Meyer v. State, 366 S.W.3d 728 (Tex. App. Texarkana 2012)………….………………………30
Wright v. State, 979 S.W.2d 868, 869 (Tex.App. Beaumont 1998)………………………31
Stafford v. State, 948 S.W.2d 921, 923-24 (Tex. App. Texarkana 1997)………………..31
McCoy v. State, 932 S.W.2d 720, 724 (Tex.App. Fort Worth 1996)…………………….31
Wilkins v. State, 279 S.W.3d 701 (Tex. App. Amarillo 2007)………………………….31
In re M.M.R., 932 S.W.2d 112, 115 (Tex. App. El Paso 1996)…………………………31
Wiggins v. State, 255 S.W.3d 766 (Tex. App. 2008)……………………………………33
Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008)…………………….…..34
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)………………….…..34
Mayes v. State, 8 S.W.3d 354, 358-61 (Tex. App. Amarillo 1999)………………….….34
Strickland v. Wasington, 466 U.S. 668, 692 (1984)………………………………….…36


                                                   5
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003)……………..………36
Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999)………………………….36

Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)……………………………..36
Smith v. Robbins, 528 U.S. 259 (2000)………………………………………………….37

Burdine v. Johnson, 262 F. 3d 336, 345 (5th Cir. 2001)…………………………………37

United States v. Cronic, 466 U.S. 648, 659 (1984)…………………..………………… 37
States v. Russell, 205 F.3d 768, 770-71 (5th Cir. 2000) ……………..………………….37
Cooks v. State, 240 S.W.3d 906, 911 (Tex.Crim.App. 2007) …………………………..38
Massingill v. State, 8 S.W.3d 733 (Tex.App.-Austin 1999) …………………………….39
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) ……………………………39


STATUTES:

Texas Penal Code § 6.03(a)…….…………………………………………………...27

Texas Penal Code § 36.06………….…..……………………………………….27, 28

Texas Penal Code § 1.07(48)…………………………………………………………….30

Tex. Penal Code Ann. § 2.01…………………………………………………………………30

Tex.R.App.P. 21.8(c)………………………………………………………………...….381




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. The Third Court of Appeals issued judgment on May

12, 2015 via Memorandum Opinion before Justices Puryear, Pemberton and

Bourland affirming the trial court’s judgment of conviction. Jurisdiction of

this court is invoked under rule 68 of the Texas Rules of Appellate

Procedure regarding petitions for discretionary review.




                                     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


    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

       JAMES ARTHUR BROWN, by and through the undersigned counsel, files this

petition for discretionary review in appeal of the affirming of his conviction by the Third

Court of Appeals, and in support, offers the following:


              STATEMENT OF ISSUES PRESENTED FOR REVIEW

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

II. Did the appellate court err when it ruled Appellant’s Motion to Quash Indictment was
only an oral motion when a pro se written motion had also been filed?

III. Did the appellate court err when it overruled Appellant’s claim of ineffective
assistance of counsel?

IV. Did the appellate court err when it denied Appellant’s Motion for Abatement of
Appeal?


                                            8
                          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 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).



                                        9
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, 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).


       The Third Court of Appeals issued judgment on May 12, 2015 via

Memorandum Opinion before Justices Puryear, Pemberton and Bourland

affirming the trial court’s judgment of conviction. Jurisdiction of this court is



                                        10
invoked under rule 68 of the Texas Rules of Appellate Procedure regarding

petitions for discretionary review.


                    STATEMENT OF PROCEDURAL HISTORY

       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.

       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 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



                                         11
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).

       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 me.” (RR p. 39, lines 13-19). 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


                                         12
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 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 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 case

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

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


                                         13
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, 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


                                         14
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 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


                                         15
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. 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). He 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, Boyden testified that the day of the termination hearing


                                        16
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).


       The Third Court of Appeals issued judgment on May 12, 2015 via

Memorandum Opinion before Justices Puryear, Pemberton and Bourland

affirming the trial court’s judgment of conviction. Jurisdiction of this court is

invoked under rule 68 of the Texas Rules of Appellate Procedure regarding

petitions for discretionary review.




                           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



                                        17
which to have a hearing on his Motion for New Trial. Brown’s Motion for

Abatement of Appeal should have been granted as new evidence had been

discovered.




                        ARGUMENT AND AUTHORITIES


I. The appellate 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).

       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




                                         18
proceedings, or cooperating with the government in a criminal investigation.”

Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App.1993).



       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



                                         19
Arnold and Duncan who said they felt 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).

                   b.       THE EVIDENCE LACKS FACTUAL SUFFICIENCY


         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.



         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
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 ___________.


                                                     20
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 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


                                         21
(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 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


                                             22
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 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




                                         23
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). 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 deputies who overheard his comments


                                         24
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 judge not threatening

unlawful action, but threatening both criminal prosecution and civil action against

those who violate his rights).




                                         25
   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 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



                                         26
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 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

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-


                                                   27
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. someone saw him get on elevator & officer saw

him leave, cross street); (RR p. had another court date). 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 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).




murders/


                                          28
                                    C. THE VIDEO


       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. (RR p. ). 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). Part 2 shows the elevator opening and




                                          29
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. (RR p. his

testimony, the officers) (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.




                                         30
II. 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.


          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 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



                                            31
       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.


       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). 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



                                          32
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.

       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.

III. Did the appellate court err when it denied Appellant’s Motion for
Abatement of Appeal?


       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


                                        33
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.


           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 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. Brown believes trial counsel provided him ineffective assistance of

counsel because having a hearing on the motion for new trial may have resulted in

his sentence being significantly reduced.




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


                                                   34
                                PRAYER FOR RELIEF

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

appellate court’s affirmation of conviction of Appellant for the instant offense.




                                              Respectfully submitted,

                                              JAMES ARTHR BROWN
                                              Preston E. Smith Unit
                                              1313 C.R. 19
                                              Lamesa, TX 79331-1898
                                              Phone: (806) 872.6741

                                              ATTORNEY PRO SE


                                              By: /s/ James Arthur Brown_____________




                                             35
                      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 12 day of June, 2015.

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/ James Arthur Brown




                                      36
Exhibit A




    37
                                   Exhibit B

      The Judgement of the Third Court of Appeals before Justices Puryear,

Pemberton and Bourland.




                                   38
