                                                                                      AP-77,034
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                 Transmitted 4/15/2015 4:28:17 PM
April 15, 2015                                                     Accepted 4/15/2015 4:31:44 PM
                                                                                     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



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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.”


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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.




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                                     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


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                      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




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EXHIBIT A




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