                                                                                          AP-77,034
                                                                        COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                      Transmitted 4/16/2015 9:40:11 AM
April 16, 2015                                                          Accepted 4/16/2015 9:41:50 AM
                                                                                          ABEL ACOSTA
                                     NO. AP-77,034                                               CLERK

                     IN THE COURT OF CRIMINAL APPEALS
                              AT AUSTIN, TEXAS
                   ________________________________________

                                 BRANDON DANIEL,
                                    APPELLANT

                                           VS.

                            THE STATE OF TEXAS,
                                  APPELLEE
                   ________________________________________

                  THE STATE’S MOTION TO ABATE APPEAL

    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
    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 remanding this cause to the trial court for a hearing on appellant’s desire

    to dismiss his counsel, proceed pro se, and waive all appeals

            In support of the instant motion, the State asserts as follows:

    1. Procedural Background and Relevant Facts

        The State charged appellant by indictment with the capital murder of

    Austin Police Officer Jaime Padron committed on April 6, 2012. (CR 100,

    118-119). A jury found appellant guilty of capital murder (CR 184), and

    pursuant to the jury’s answers to the special issues at punishment, the trial
court sentenced appellant to death on February 28, 2014. (CR 189-190; RR

26: 221). Appellant timely filed a motion for new trial, which was overruled

by operation of law, and notice of appeal. (CR 196, 197). The trial court

appointed attorney Ariel Payan to represent appellant on direct appeal

pursuant to appellant’s desire to be represented by counsel. (CR 205; RR

26: 219).

   On the same day of sentencing, the trial judge found the appellant to be

indigent and that the appellant desired to have counsel appointed for the

purpose of a writ of habeas corpus pursuant to Art. 11.071, V.A.C.C.P.. (CR

192; RR 26: 220). The trial judge therefore entered an order appointing the

Office of Capital Writs and Director Brad Levenson as counsel to investigate

the case, file the appropriate writ, and fully represent appellant. (CR 192).

   On January 16, 2015, Payan timely filed a brief on direct appeal on

appellant’s behalf. The State’s brief on direct appeal is currently due on

April 20, 2015, but the State anticipates requesting additional time in which

to complete its responsive brief.

2. This Appeal Should Be Abated

   On March 4, 2015, appellant filed a letter with the District Clerk’s Office

of Travis County. See Exhibit A, certified copy of appellant’s letter,

attached to this motion. In the letter directed to the judge of the convicting



                                       2
court, appellant expresses his desire to dismiss his direct appeal attorney,

Ariel Payan, dismiss the brief Payan filed on his behalf, proceed pro se, and

waive all appeals. Appellant also indicates his desire to dismiss the Office

of Capital Writs and Brad Levenson on habeas review, proceed pro se, and

waive habeas review.1

    Appellate review of a death sentence is automatic and cannot be waived.

Art. 37.071(h), V.A.C.C.P. Thus, an appellant must either be represented by

counsel on direct appeal or he must proceed pro se. The State submits that

this Court should abate this appeal and remand this case to the trial court for

a hearing to determine whether (1) the appellant understands that he cannot

waive his right to direct appeal, (2) the appellant really desires to dismiss

Payan and proceed pro se, (3) the appellant has been advised of the dangers

and disadvantages of self-representation if he chooses to represent himself

on direct appeal, see e.g., Burgess v. State, 816 S.W.2d 424 (Tex.Crim.App.

1991), and (4) the appellant is competent to make these decisions, see Rees

v. Peyton, 384 U.S. 312 (1966).

    On the other hand, the law does not require the filing of an application

for writ of habeas corpus, and an applicant may waive his right to habeas

1
 Additionally, in a letter dated March 26, 2015, and addressed to Travis County District
Attorney Rosemary Lehmberg, appellant expressed his desire to waive his appeals and
sought the District Attorney’s help “to expedite the situation.”


                                            3
review. Ex parte Reynoso, 257 S.W.3d 715 (Tex.Crim.App. 2008). Since

the trial court appointed counsel to present appellant on habeas review and

the appellant now expresses his desire to dismiss counsel and waive habeas

review, the State submits that abatement and remand are necessary for the

trial court to additionally determine whether the appellant wishes to file an

application for writ of habeas corpus and, if he does not, whether he has

made this decision knowingly and voluntarily. See Reynoso, AP-74,952,

Order dated September 15, 2004. If the appellant does wish to pursue

habeas review, the trial court should determine whether appellant wishes to

dismiss his appointed counsel and proceed pro se and, if he does, whether he

has made this decision knowingly and voluntarily.




                                       4
                                     PRAYER

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

and remand this cause to the trial court for a hearing on appellant’s desire to

proceed pro se and waive all appeals.

                                        Respectfully submitted,

                                        ROSEMARY LEHMBERG
                                        District Attorney
                                        Travis County, Texas

                                        /s/ Lisa Stewart
                                        Lisa Stewart
                                        Assistant District Attorney
                                        Director, Appellate Division
                                        State Bar No. 06022700
                                        P.O. Box 1748
                                        Austin, Texas 78767
                                        Phone No. (512) 854-3626
                                        Fax. No. (512) 854-4810
                                        Lisa.Stewart@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 document, that this

document contains 758 words, excluding words contained in those parts of

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

                                                     /s/ Lisa Stewart
                                                     Lisa Stewart
                                                     Assistant District Attorney


                                       5
                      CERTIFICATE OF SERVICE

      I hereby certify that, on this 15th day of April, 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 attorneys for the

appellant:

Ariel Payan
1012 Rio Grande
Austin, Texas 78701
Fax: 512-472-4102
ArielPayan@hotmail.com

Brad Levenson
Office of Capital Writs
Stephen F. Austin Building
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
Fax: 512-463-8590
Brad.Levenson@OCW.Texas.gov

Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Lisa.McMinn@spa.texas.gov



                                                     /s/ Lisa Stewart
                                                     Lisa Stewart
                                                     Assistant District Attorney




                                       6
EXHIBIT A




    7
February 25, 20L5

Judge Brenda Kennedy
403rd District Court                        'ot
                                            Fllor

P.O. Box 1748
Austin, TX 78767

Re: Brandon Daniel v. State of Texas; L2-20L7L8

Dear Judge Kennedy:

        I was senteneed to death in your court Last February for
the murder of an Austin police officer Ln 20L2. After long and
careful consideration of all of my options I have decided to
respectfully request to waive any and all of my appeals immed-
iately. The reasons for my decision include, but are not limited
to: the fact that I want justice to be served and I feel that the
punishment is appropriate for my crime; we are both interested
in saving the taxpayer's money, the Eime of all involved and in
sparing my family and the victim's family any more angst than
necessaryi and, finally, I-would like to limit my time in prison
to the least amount possible.

          I undersland that this means Ehat I forfeit any possibility
of receiving a sentence that is lesser in the eyes of the Iaw.
I am competent and will submit t,o any exams Ehat the court
requires. I am also completely informed of the situation and the
effects of my decision due to my lawyer, Brad D. Levenson of the
Of f ice of Capital I'lrit,s (OCW;, who has consistently [ried to
di-ssuade me. Although the entire OGW has been very helpful
Ehroughout the process, r would also like to dismiss the 0cll and
represent myself pro se for the remainder of the case in order
to avoid any conflicLs of interest.

          My   direst appellaUe counsel, Ariel payan, filed an appeal
against   my   wishes despite confirming that he received my letLer
                                                                    ,oli,:
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asking him not to file the appeal, stating that the direct appeal
is mandatory although there are several cases on death row of a
direcL appeal being waived. r would also like Eo dismiss Arlel
Payan and represent myself pro se in any and all litigation and
r request that my waiver of my appears supersede the direct appeal
that was filed on my behalf.

        Thank you     for your consideration.




                                      ffi
                                      Sincerely,


                                      Brandon DanieL
                                      TDCJ #999589
                                      Polunsky Unit
                                      3872 FM 350 South
                                      Livingston, Texas 7735t




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