                                                                                           ACCEPTED
                                                                                      03-13-00760-CR
                                                                                             3718822
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  1/9/2015 3:56:06 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                             NO. 03-13-00760-CR

                    IN THE COURT OF APPEALS              FILED IN
                                                  3rd COURT OF APPEALS
                         THIRD DISTRICT               AUSTIN, TEXAS
             ________________________________________
                                                  1/9/2015 3:56:06 PM
                                                                JEFFREY D. KYLE
                              JAMES BROWN,                           Clerk
                                APPELLANT

                                     VS.

                      THE STATE OF TEXAS,
                            APPELLEE
             ________________________________________

          THE STATE’S MOTION TO ABATE APPEAL
                          AND
      MOTION FOR APPELLANT’S MOTION TO BE HELD IN
                       ABEYANCE

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      The State of Texas, by and through the District Attorney for Travis

County, respectfully moves this Court for its order abating the instant appeal

and holding in abeyance the pending motion of the appellant styled 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 (herein referred to as

“the appellant’s motion”).

      In support of the instant motion, the State asserts as follows:
1. Procedural background

      On May 29, 2013, a Travis County grand jury filed an indictment

charging the appellant with three counts of the felony offense of obstruction

or retaliation. CR 19. One of the victims named in the indictment was

employed, at the time of the offense, as a Travis County Assistant District

Attorney and continues to be so employed.

      On April 5, 2013, the Travis County District Attorney appointed

attorney Corby Holcomb to serve as Special Assistant District Attorney for

the purpose of representing the State in the case styled State of Texas v.

James A. Brown, Cause Number D1DC13-300630. CR 10. For the Court’s

convenience, a copy of the document reflecting that appointment is attached

hereto.

      On October 23, 2013, a bench trial was held in the 331st District

Court. The trial court (the Honorable David Crain presiding) found the

appellant guilty of all three counts and, on each count, assessed the

appellant’s punishment at confinement for a term of 15 years in the

Institutional Division of the Texas Department of Criminal Justice. CR 51-

58.

      The appellant’s motions for new trial were filed on October 31 and

November 1, 2013. CR 59-66. Notice of appeal was filed on November 8,



                                       2
2013, and on January 30, 2014. CR 83, 107. The trial court certified that

the appellant has the right of appeal. CR 84.

      On December 29, 2014, the appellant filed 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 (herein referred to as

“the appellant’s motion”).

2. This appeal should be abated

      In light of the fact that one of the appellant’s victims is currently

employed as an Assistant District Attorney, and the fact that a special

prosecutor was appointed to represent the State in the proceedings occurring

in the 331st District Court, the State of Texas asserts that it would be

appropriate for the State to be represented by a special prosecutor in relation

to the instant appellate proceedings.

      Abatement of this appeal is warranted because it is presently unclear

whether the State be represented during the instant appellate proceedings by

Special Assistant District Attorney Holcomb or, alternatively, by a different

special prosecutor. It appears that Mr. Holcomb has not been served with

appellant’s motion or with the appellant’s brief. The State respectfully

requests that the appeal be abated for a period of time reasonably sufficient




                                        3
to enable the State to secure the services of a special prosecutor, whether it

be Mr. Holcomb or a different individual.

3. The appellant’s motion should be held in abeyance

      Because the special prosecutor who will represent the State in the

proceeding has been firmly identified and has not been served with the

appellant’s motion, the State requests that, as part of the above-requested

abatement, the appellant’s motion be held in abeyance. Further, the State

requests that the special prosecutor be afforded an adequate opportunity to

respond to the appellant’s motion after these proceedings are reinstituted and

after that individual receives service of the appellant’s motion.

                                      PRAYER

      Wherefore, the State requests that this Court abate the instant appeal

and hold the appellant’s motion in abeyance.




                                       4
                                      Respectfully submitted,

                                      ROSEMARY LEHMBERG
                                      District Attorney
                                      Travis County, Texas

                                      /s/ M. Scott Taliaferro
                                      M. Scott Taliaferro
                                      Assistant District Attorney
                                      Director, Appellate Division
                                      State Bar No. 00785584
                                      P.O. Box 1748
                                      Austin, Texas 78767
                                      Phone No. (512) 854-3626
                                      Fax. No. (512) 854-4810
                                      Scott.Taliaferro@traviscountytx.gov
                                      AppellateTCDA@traviscountytx.gov



                    CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,

based on the computer program used to generate this motion, that this

motion contains 636 words, excluding words contained in those parts of the

brief that Rule 9.4(i) exempts from inclusion in the word count.



                                                   /s/ M. Scott Taliaferro
                                                   M. Scott Taliaferro
                                                   Assistant District Attorney




                                      5
                       CERTIFICATE OF SERVICE

      I hereby certify that, on this 9th day of January, 2015, a copy of the

foregoing motion was sent, via U.S. mail, email, facsimile, or electronically

through the electronic filing manager, to the following attorney for the

appellant:

      Tanisa Jeffers, Esq.
      Brian Bernard, Esq.
      Bernard & Associates
      1203 Baylor Street
      Austin, TX 78703
      Fax:          512.478.9827
      Email:       tanisaL@hotmail.com
                   attorneybernard@yahoo.com


                                                    /s/ M. Scott Taliaferro
                                                    M. Scott Taliaferro
                                                    Assistant District Attorney




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