                                                                                            ACCEPTED
                                                                                       03-13-00760-CR
                                                                                              4406706
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   3/6/2015 3:50:50 PM
                          No. 03-13-00760-CR                                         JEFFREY D. KYLE
                                                                                                CLERK




                      In the Third Court of Appeals                    FILED IN
                              Austin, Texas                     3rd COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                                3/6/2015 3:50:50 PM
                                                                  JEFFREY D. KYLE
                                                                        Clerk
                        JAMES A. BROWN,
                                          Appellant,

                                     v.

                     THE STATE OF TEXAS,
                                          Appellee.


                 On appeal from the 331 st Judicial District,
                          of Travis County, Texas
                    Trial Cause No. D1-DC-13-300630
                The Honorable David Crain, Presiding Judge



                           STATE'S BRIEF


                                   ROSEMARY LEHMBERG
                                   TRAVIS COUNTY DISTRICT ATTORNEY

                                   WILLIAM   G. SWAIM Ill
                                   SPECIAL ASSISTANT DISTRICT ATTORNEY
                                   State Bar Number 00785074
                                   Post Office Box 1748
                                   Austin, Texas 78767
                                   Telephone: (512) 854-9415
                                   Bill. Swaim@traviscountytx.gov

March 6, 2015                      ATTORNEYS FOR THE STATE OF TEXAS


                  ORAL ARGUMENT Is NoT REQUESTED
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

INDEX OF AUTHORITIES ..................................................................................... ii

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED ............................................................................................... 3

STATEMENT OF FACTS ........................................................................................ 4

SUMMARY OF THE STATE'S ARGUMENT ....................................................... 6

ARGUMENT

Reply Point 1: The evidence of Brown's intent to harm by unlawful acts
               is legally sufficient to sustain the judgment of conviction
               for retaliation. .................................................................................. 8


Reply Point 2: A timely motion to quash was never presented to the court
               for a ruling, therefore this issue is not preserved for appeal. .. .. .. .. 14

Reply Point 3: Appellant fails to discharge his burden of production in support
               of his claims of ineffective assistance of counsel. .......................... 16

PRAYER ................................................................................................................. 25

CERTIFICATE OF COMPLIANCE ...................................................................... 26

CERTIFICATE OF SERVICE ............................................................................... 26
                      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
attomeybernard({_ijyahoo.com
tanisaL(a)hotmail.com
       -...., ___./




Appellee: TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE

Appellee's Counsel:
William G. Swaim III
Special Assistant District Attorney
P.O. Box 1748
Austin, Texas 78701
(512) 854-9415
(512) 854-9436 Facsimile
Bill.Swaim(0traviscountytx.gov




                                      i
                                      INDEX OF AUTHORITIES

Statutes                                                                                                   Page
TEX. CRIM. PROC. CODE ANN. ART. 1.14
      (West Supp. 2014) ...................................................................................... 14

Rules
TEX. R. APP. P. 33.1 ................................................................................................. 14
TEX. R. APP. P. 38.l(i) ..................................................................................... 16, 22

Cases
Bodeker v. State, 629 S.W.2d 65
       (Tex. Crim. App. 1981) ................................................................................ 11
Brooks v. State, 323 S.W.3d 893
       (Tex. Crim. App. 201 0) ................................................................................. 8
Cooks v. State, 240 S.W.2d 906
       (Tex. Crim. App.-2007) ........................................................................... 23
Coward v. State, 931 S.W.2d 386
       (Tex. App.-Houston [14th Dist.] 1996, no pet.) ....................................... 10
Davis v. State, 890 S.W.2d 489
       (Tex. App. -Eastland 1994, no pet.) ......................................................... 10
Garcia v. State, 57 S.W.3d 436
       (Tex. Crim. App. 2001) .............................................................................. 19
Hooper v. State, 214 S.W.3d 9
       (Tex. Crim. App. 2007) .............................................................................. 12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
       61 L. Ed. 2d 560 (1979) .................................................................... 8, 12, 13
Jarrell v. State, 537 S.W.2d 255
       (Tex. Crim. App. 1976) ................................................................................. 9
In re B.M, 1 S. W.3d 204
       (Tex. App.-Tyler 1999, no pet.) ............................................................... 10
Lawson v. State, 775 S.W.2d 495
       (Tex. App. -Austin 1989, pet. ref d) ........................................................ 11
Manemann v. State, 878 S.W.2d 334
       (Tex. App. -Austin 1994, pet. refd) .................................................. 10, 11
Moreno v. State, 755 S.W.2d 866
       (Tex. Crim. App. 1988) .............................................................................. 13


                                                           ii
Strickland, 466 U.S. 668, 104 S. CT. 2052,
       80 L. Ed. 2d 674 (1984) ........................................................................ 19,21
Thompson v. State, 9 S. W.3d 808
       (Tex. Crim. App. 1999) .............................................................................. 19
United States v. Orozco-Santillan, 903 F .2d 1262
       (9th Cir. 1990) ............................................................................................. 11
Wayslina v. State, 275 S.W3d 908
       (Tex. Crim. App. 2009) .............................................................................. 11
Wilson v. State, 398 S.W.2d 291
       (Tex. Crim. App. 1965) .............................................................................. 15




                                                         iii
                            STATEMENT OF THE CASE

         Brown was charged by indictment with three counts of retaliation against a

public servant, third degree felonies.    CR 19-20.   The indictment further alleged

four previous felony convictions potentially enhancing the initial charges to second

degree felonies.    !d.    On October 23, 2013, following a bench trial, the court

found him guilty on all three counts of the indictment.         CR 48, 52-55, 57-58.

The court further found the enhancement paragraphs true.         !d.   That same day,

the court assessed punishment and sentenced Brown to fifteen years in the Texas

Department of Criminal Justice.     !d.

         Defense counsel filed a motion for new trial on October 31, 2013.          CR

59-60.     The next day, Brown filed a pro se motion for new trial.         CR 61-67.

Brown filed a pro se notice of appeal and "Motion to Appeal" on November 8,

2013.     CR 71-76, 83.

         No further court proceedings occurred, although, on December 16, 2013, the

trial court issued a bench warrant for Brown's return from the Texas Department of

Criminal Justice for a hearing January 8, 2014.       CR 100.    The court appointed

counsel for Brown on January 7, 2014.      CR 103.    The trial court, in a letter dated

December 22, 2014 and appended to Appellant's brief, explained the purpose of

Brown's return to court:


                                           1
            Appellant filed a Motion for New Trial on October 21, 2013.
      Trial counsel filed a Motion for New Trial on November 1, 2013.
      Brown was set to come back to court on January 14, 2014. Brown
      refused to enter the courtroom. Thereafter, the Motion for New Trial
      expired by operation of law.
            The court fully intended to reduce the sentence significantly but
      Brown refused to participate.

Brief for Appellant at 50.




                                        2
                              ISSUES PRESENTED



                                     Issue One


      Whether the trial court's inferences from the testimony and evidence in

finding Brown intentionally threatened unlawful acts are legally sufficient to

uphold the conviction for retaliation?




                                     Issue Two


      Whether the issue of Brown's prose and oral motions to quash is even

preserved, as no ruling was ever sought from the court?




                                    Issue Three


      Whether Appellant has even presented for consideration his multiple claims

of ineffective assistance of counsel, where he has not satisfied his burden of

production under Strickland v. Washington or the Texas Rules of Appellate

Procedure?




                                          3
                           STATEMENT OF THE FACTS

       On March 28, 2013, James Arthur Brown was at the Travis County civil

courthouse for a jury trial on the termination of his parental rights.       2 RR 53.

Assistant Travis County District Attorney Jannice Joseph represented the State and

CPS social worker Sara Laney, and the child's ad litem attorney, Cynthia Dyar,

were involved the case.     2 RR 10, 37, 52.      A jury returned a verdict terminating

Brown's parental rights.    2 RR 53, 56.       As the judge was addressing Brown, "he

got angry and stormed out of the court."        2 RR 56.    Immediately following the

hearing, Joseph, Laney, and Dyar, the three complaining witnesses, encountered

Brown outside the courtroom in the hallway by the elevators.         2 RR 17, 38, 61.

Looking directly at them, he began screaming threats.        2 RR 22, 31, 39, 50, 61.

Each stated that Brown's threats were repetitions and "slight variations" of "I will

get you," "I know where you live," and, "Whatever happens, I don't care if I get the

electric chair."   2 RR 39, 112.   All three workers testified that they were afraid

or felt they needed to be concerned for their safety.    2 RR 23, 40, 62.

      Brown was arrested and later indicted for three counts of obstruction or

retaliation against a public servant enhanced to a second degree felony allegation

so prior felony convictions.   CR 19. 20.       Following a bench trial on October 23,

2013, Brown was found guilty of all three counts of retaliation.        CR 48; 2 RR


                                           4
112.     The court also found true the enhancement allegations.   !d.   Immediately

following, Brown, on his own motion, requested the court to quash the indictment.

2 RR 112-13.      The judge explained that his motion was not timely whereupon

Brown accused the judge of racism and was removed from the courtroom.           2 RR

113.     The judge proceeded to sentencing with the defendant absent, referring on

the record to Brown "yelling and screaming very violently" in his holding cell.    2

RR 116, 123.      The court sentenced Brown to fifteen years in prison on each

count.

         Brown, on his own, filed a motion for new trial on October 31, 2013, and

trial counsel filed a motion for new trial on November 1, 2013.    CR 59, 61.     No

further court proceedings occurred although the Brown was returned on a bench

warrant for hearing date listed as January 8, 2014.     On January 14, 2014, Brown

refused to enter the courtroom for the scheduled hearing, and his motion for new

trial expired by operation of law.   Brief for Appellant at 50.




                                          5
                   SUMMARY OF THE STATE'S ARGUMENT



                                    Reply Point One

       The evidence of Brown's intent to harm by unlawful acts is legally

sufficient to sustain the judgment of conviction for retaliation.          The

evidence in the record quickly narrows this legal analysis to Brown's intent

to threaten and the unlawful acts alleged in the indictment.    The trial court

found that the State's evidence and the inferences derived therefrom proved

the offense of murder and a wide range of possible criminal activity

including aggravated assault and assault as alleged in the indictment, which

are lesser included offenses of murder.



                                    Reply Point Two

       A timely motion to quash was never presented to the court for a ruling,

therefore this issue is not preserved for appeal.     Brown filed two pro se motions

to quash and presented an untimely, oral, prose motion to quash after trial.      With

no ruling ever made on these motions, nothing is preserved for appeal here.

Appellant apparently presents this issue to give voice to Brown's mistaken belief

that merely filing his writings triggers relief.


                                            6
                                 Reply Point Three

      Appellant fails to discharge his burden of production in support of any of his

claims of ineffective assistance of counsel.   The multiple claims in this point of

error are presented without support from the record and fall short of the first prong

of the Strickland v. Washington analysis, Appellant's burden of production

demonstrating deficient performance by trial counsel.      These claims further run

afoul ofTex. R. App. P. 38.l(i), requiring support from the record.




                                         7
                                   ARGUMENT

                                  Reply Point One

      The evidence of Brown's intent to harm by unlawful acts is legally

sufficient to sustain the judgment of conviction for retaliation.


      The Court of Criminal Appeals held that "the Jackson v. Virginia

legal-sufficiency standard is the only standard that a reviewing court should apply

in determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt."

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)(eliminating the

separate factual sufficiency review). Under this standard a reviewing court "is

required to defer" to the fact-finder's credibility and weight determinations.   !d. at

894 (citing Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979)).

      In the instant case, Judge David Crain articulated that all three of the State's

complaining witnesses were credible when finding Brown guilty on the three

counts of the indictment.    2 RR 112.     Each complainant explained her role in

Brown's custody termination hearing the day of the offense, March 28, 2013:

Janice Joseph, Assistant District Attorney as trial counsel; Cynthia Dyar, ad litem

attorney for the child in the suit; and Sarah Laney, caseworker for Child Protective

                                          8
Services. 2 RR 14, 35, 52-53.       Brown testified at the trial and stated there that he

knew that all three were public servants, and that they worked together to terminate

his parental rights.   2 RR 103.       All three complaining witnesses testified that

immediately following the hearing they encountered Brown outside the courtroom

by the elevators in the hallway.     2 RR 17, 38, 61.    Brown looked directly at them

while he was screaming threats.        2 RR 22, 31, 39, 50, 61.     Each stated that the

threats were repetitions and "slight variations" of "I will get you," "I know where

you live," and, "Whatever happens, I don't care if I get the electric chair."      2 RR

39, 112.      Even with their experience in and perspective of child custody

proceedings, all three victims testified that they were afraid or felt they needed to

be concerned for their safety.      2 RR 23, 40, 62.    Sarah Laney testified that to her

the phrase "electric chair" implied the offense of "murder".           2 RR 50.     This

testimony, found credible by the trial court, amply factually supports the

indictment's allegation of intentional threats to the three women on account of

their service as public servants.

      It is the intent to threaten that is key to this type of criminal offense, not the

intent to carry out the threat.     Jarrell v. State, 537 S.W.2d 255, 257 (Tex. Crim.

App. 1976).    "[T]he statute does not require that the threatened retaliatory harm

be imminent, nor does it require that the actor actually intend to carry out his


                                            9
threat."   In re B.M, 1 S.W.3d 204, 207 (Tex. App.-Tyler 1999, no pet.); Coward

v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston [14th Dist.] 1996, no pet.);

Davis v. State, 890 S.W.2d 489, 492 (Tex. App.-Eastland 1994, no pet.).

Regardless of any testimony that he would not or did not intend to harm the

victims, Brown's statements would still constitute threats under the statute.

       The trial court's verdict and interpretation of the evidence as establishing

Brown's intent to threaten is specifically supported by the context in which the

threats were made.    The Third Court in 1994 observed in a case involving a phone

call threatening bodily injury, "The meaning of statements can only be interpreted

by considering the context in which they are made."        Manemann v. State, 878

S.W.2d 334, 338 (Tex. App.-Austin 1994, pet. ref'd).            In the instant case,

Brown's remarks are made repeatedly, immediately outside the courtroom where

his parental rights had just been terminated, while directly looking at three people

involved in bringing about that result, within minutes of the court's decision, while

pacing agitatedly and with his mother trying to pull him away into an elevator.

      Brown's statements in themselves satisfy the elements of the offense

"threaten to harm by an unlawful act".    A particular statement may be considered

a threat under an objective standard where a reasonable person to whom the

statement is communicated interprets the statement as a serious expression of


                                         10
intent to harm or assault.   Manemann, 878 S.W.2d at 337 (citing United States v.

Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).       The three women who

were the object of Brown's threats all testified that they are experienced in such

hearings where people are understandably upset, but that Brown's actions were

distinctly threatening.

      The trial court correctly interpreted Brown's threats as embracing the

unlawful acts of aggravated assault or assault alleged in the indictment.

Aggravated assault is a lesser included offense of murder.     Lawson v. State, 775

S.W.2d 495, 499 (Tex. App.-Austin 1989, pet. ref'd).            Assault is a lesser

included offense of aggravated assault.    One of the State's complaining witnesses

testified that to her the phrase "electric chair" implied the offense of "murder".

Where the State's evidence proves the greater offense, it necessarily proves any

lesser included offenses.    Wayslina v. State, 275 S.W3d 908, 910 (Tex. Crim.

App. 2009); Bodeker v. State, 629 S.W.2d 65, 66-7 (Tex. Crim. App. 1981).

While only the crime of "murder" was mentioned as an interpretation of Brown's

comment "I know where you live, and I'll get the electric chair for what I do", as

Judge Crain noted, "by implication, if something severe enough would be

assaultive behavior, severe enough to get the electric chair would also include the

lesser-included offenses of aggravated assault or assault."    2 RR 50, 112.   The


                                          11
judge further observed, "I think his statements implied a whole range of possible

criminal activity, anywhere from assault up to a murder, and also including

aggravated assault." 2 RR 73.

        Appellant asserts that the video evidence introduced by the State at his trial

IS   insufficient to sustain the conviction.    The video evidence from security

cameras in the courthouse hallways admittedly does not fully capture the offense.

There is no sound and Brown appears on the edge of the video walking in and out

of view.    3 RR State's Exh. #4.    Given this context, the video evidence does not

contradict the verdict, which is principally and easily supported by the testimony of

the witnesses alone.      In fact, the only statement conflicting with the video

evidence is Brown's assertion, "That's not even the real video.      My back was to

them.    They lying."   2 RR 74.

        "The reviewing court must give deference to 'the responsibility of the trier

of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts."'     Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,

318-9, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).           Even if there were

inconsistencies in the evidence, "Such a verdict must stand unless it is found to be

irrational or unsupported by more than a 'mere modicum' of the evidence, with


                                          12
such evidence being viewed under the Jackson light.         Concrete application of the

Jackson standard is made by resolving inconsistencies in the testimony in favor of

the verdict."   Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

       "[T]he relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."        Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 ( 1979).        The credible

testimony of the State's witnesses and the reasonable inferences drawn from it by

the trial court ensure this conviction is legally sufficient.




                                            13
                                     Reply Point Two

         A timely motion to quash was never presented to the court for a

ruling, therefore this issue is not preserved for appeal.



         In order to preserve for appeal a complaint about a court's ruling on a

motion, the record must show that the motion was presented to the trial court, and

that the trial court ruled on it, or refused to rule on it, whereupon the movant

objected.    TEX. R. APP. P. 33.1.    Where a defendant fails to object to a defect in a

charging instrument before the date trial begins, "he waives and forfeits the right to

object to the defect, error, or irregularity and he may not raise the objection on

appeal or in any other post-conviction proceeding."          TEX. CRIM. PROC. CODE

ANN. ART. 1.14 (West Supp. 2014).

         While Brown, on his own, filed two motions to quash, they were apparently

never ruled on by the trial court.       CR 35, 42.    Without any support from the

record, Appellant states, "A trial before the court was commenced on October 23,

2013.     The court overruled all pretrial motions at that time."   Brief for Appellant

at 14.    The one motion to quash that does appear on the record was made by

Brown after the trial was over, to which the Judge responded, "I believe your

motion is not timely after the trial has occurred."      2 RR 113; TEX. CRIM. PROC.

                                           14
CODE ANN.       ART.   1.14 (West Supp. 2014).    In Wilson v. State, the Court of

Criminal Appeals addressed this issue directly.

      "He complains of the overruling of four motions to quash the

      indictment.      None of these is shown to have been presented to the

      trial judge for his ruling. In the absence of a bill of exception, formal

      or informal, appellant's attack upon the indictment must be considered

      as though no motion to quash or exception to the indictment was

      filed."

Wilson v. State, 398 S.W.2d 291, 292 (Tex. Crim. App. 1965).

      It appears that Brown assumed that merely filing a motion on his own was

the equivalent of a proper legal objection as evidenced in his "Memorandum of

Law," where he states, "The court erred, when upon notice by motion to quash

indictment 'Sep. 04, 2013 and Oct. 09, 2013,' did not correct errors in the

indictment for a fair and impartial trial."      CR 81.   As neither of his written

motions nor his oral motion at trial were timely presented or ruled upon on the

record, this issue is not preserved for appeal and should be overruled.




                                         15
                                  Reply Point Three

       Appellant fails to discharge his burden of production in support of his

claims of ineffective assistance of counsel.


       Appellant's initial presentation of this point of error appears to contend that

ineffective assistance of counsel may be found in trial counsel's failure to

withdraw and in that no hearing was held on Appellant's motion for new trial

within seventy-five days.     Within the argument, Appellant lists three additional

grounds to support the claim: (1) trial counsel did not file any pretrial motions, (2)

trial counsel did not call a key witness, and (3) trial counsel did not subpoena the

individual responsible for the State's video evidence.      A further claim is added

alleging Brown was unrepresented during the thirty-day period in which to file a

motion for new trial.    Appellant provides insufficient factual support for these

claims and, respectfully, this point of error should be overruled.     TEX. R. APP. P.

38.1(i).

       The State will initially respond to the three additional grounds all listed in a

single paragraph of Appellant's brief.      Brief of Appellant at 44.     These three

claims appear to be drawn from Brown's mostly hand-written motions.                The

claims and their sources are as follows:




                                           16
            1. His counsel did not file pre-trial motions,

               CR 73 (Mot. to Appeal, sec. IV; CR 65 (Mot. for New Trial, sec. XII)

            2. His counsel did not call as a witness Valerie Brown, Appellant's

               mother, and

               CR 73 (Mot. to Appeal, sec. IV)

            3. His counsel did not call "video surveillance personnel"

               CR 73 (Mot. to Appeal, sec. IV).

      Brown's trial counsel did file pre-trial motions including a motion for

discovery, a motion for psychiatric exam, and a request for appointment and

funding of an investigator.      CR 27, 40, 85-92.      Appellant's brief is silent on

what, if any, motions, should have been filed or as to what purpose.        Therefore it

is impossible to reach a conclusion that failure to file or litigate pre-trial motions

was representation so deficient as to deprive Brown of a fair trial.

      Brown's trial counsel did not call as a witness Valerie Brown, Appellant's

mother, as the reporter's record clearly shows.       Appellant's brief only describes

her as being "present when the complained of language in the indictment was

uttered."    Brief for Appellant at 46.      Brown himself only complains of her

absence with no description of her possible testimony or purpose.        CR 73 (Mot. to

Appeal, sec. IV).     Appellant's counsel expands on her possible role as a witness


                                           17
In a supplementary motion filed with the Third Court describing her proposed

testimony as follows:

       "Mrs. Brown will testify that Mr. Brown was upset at having his
       parental rights to his 3 year old [sic] daughter terminated just
       moments before, that he was planning to file a lawsuit because he felt
       his rights were being violated and that he never threatened anyone, but
       was simply "grieving."

Mot. to Abate Appeal and Remand for Hrg. on Mot. for New Trial and for

Permission to File Out of Time Mot. for New Trial at 3.           This single

sentence without support from a sworn statement or other source is the only

description of the substance of the testimony of the proposed witness.

       Through cross-examination of one of State's complaining witnesses and

courthouse deputies at the scene, trial counsel did develop the ideas that the

Defendant was possibly upset at the recent parental rights termination judgment

and possibly grieving.      2 RR 31-32, 87-89, 92.        The State's complaining

witnesses testified that at the scene Valerie Brown was trying to pull Brown into an

elevator.   CR 40, 46, 48, 62.   Joseph specifically testified "and she was trying to

tell him to stop, and she was trying to tell him no, nobody is going to do anything."

CR 62.      Further, the record indicates Valerie Brown was present at the trial,

sitting behind the prosecuting attorney and pestering him.      CR 73.    In light of




                                         18
these descriptions of her involvement, trial counsel's decision not to call her as a

witness becomes a potential strategy to limit the damage to his client.

      Courts 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.    Strickland, 466 U.S. 668, 689, 104 S. CT.

2052, 2065, 80 L. Ed. 2d 674 (1984); Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001); Thompson, 9 S.W.3d at 812.       Appellant fails here in his burden

of production to demonstrate affirmatively from the record any deficient

representation by trial counsel in not calling Valerie Brown as a witness.

      Trial counsel did not call any witness related to the production of the

courthouse video as the reporter's record clearly shows.         Brown's complaint

about the evidence appears to be that it was edited prejudicially.           Brief of

Appellant at 44; CR 63 (Mot. For New Trial, sec. XIII); CR 73 (Mot. To Appeal,

sec. IV).      The only direct mention of a potential witness is in Appellant's

supplemental motion to the Third Court as follows:

      "        Flores will testify that there is possibly additional video
      evidence over and above the two "snippets" of video information
      entered as evidence in the trial before the court."


                                         19
Mot. to Abate Appeal and Remand for Hrg. on Mot. for New Trial and for

Permission to File Out of Time Mot. for New Trial at 3.            This vague

representation of the testimony of an only partially identified witness is also

unsupported by a sworn statement or other source.

       The State's video evidence consists of two duplicate pmrs of videos

depicting the relevant areas in the Travis County civil courthouse: the doorway to

the courtroom where the termination hearing was held and, peripherally, one of the

elevators in the central hallway.     3 RR State's Exh. #4.      Three photographic

exhibits put the locations of the video scenes into context.      3 RR State's Exh.

#1-3; 2 RR 7-20.     The pair of videos depicting the courtroom doors contain two

time frames: 12:09:24 thru 12:09:35 and 12:11:21 thru 12:13:18.        3 RR State's

Exh. #4.    These may be the "snippets" and editing complained of by Appellant

although not specifically identified in the brief or supplemental motion.         The

other pair of videos depicting the elevator area are continuous runmng from

12:12:01 - 12:14:55.     3 RR State's Exh. #4.     The videos overlap in completely

covering the period during which the threats were made. The first segment of the

door video was for the State's purpose of demonstrating that Brown "stormed" out

of the civil courtroom prior to the incident.   2 RR 37, 56.




                                          20
      The record does contain an explanation of trial counsel's decision regarding

a "video surveillance witness":

      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.

2 RR 75.

      Assuming arguendo that calling a video surveillance witness would have

provided more information on the areas and timeframes filmed, 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, 104 S. CT at 2067.   Testimony at trial illustrated weaknesses in the State's

video evidence by demonstrating that the video angle filming the elevator area was

cutoff, that only the back of the defendant could be seen outside the elevator and

that the camera angle did not display the location of the other involved persons.   2

RR 24, 26, 28, 79.       There is no affirmative record support that additional

testimony from any other person, let alone "__ Flores", regarding the production

of the video recordings would have made any difference at all in the outcome.

Appellant fails here in proving deficient representation by trial counsel in not

calling a "video surveillance" witness.

                                          21
          Appellant's brief provides no factual support for and does not even develop

the contention that ineffective assistance of counsel may be found in trial counsel's

failure to withdraw and in that no hearing was held on Appellant's motion for new

trial within seventy-five days.    TEX. R. APP. P. 38.1(i).    The record clearly shows

that a hearing was set for the seventy-fifth day after trial counsel filed a motion for

new trial.     Trial counsel's motion was filed October 31, 2013.      CR 59-60.    The

trial court bench-warranted Brown back from prison for a hearing January 14,

2014.      CR 100; Brief for Appellant at 50.    Further proof that trial counsel was

still acting on behalf of Brown can be found in the court's order of appointment for

trial counsel dated January 7, 2014.     CR 103.     Rhetorically, the State must ask,

who does Brown contend moved the trial court to bench warrant him back within

the seventy-five day time limit for action on the motion for new trial, if not his trial

counsel?      The January 14, 2014 hearing date was Brown's opportunity to alter the

course of events, but he declined to even participate.        Brief for Appellant at 50.

To label trial counsel deficient here on this basis with no record support at all is

unfair.     Appellant utterly fails to discharge his burden of production on this

particular aspect of his broad claim of ineffective assistance of counsel.      TEX. R.

APP. P. 38.1(i).




                                           22
      Appellant's final ineffective assistance claim alleges Brown was deprived of

counsel during the thirty-day window for filing a motion for new trial.     This claim

is flatly refuted by the record.     Trial counsel filed a motion for new trial on

October 31, 2013, within thirty days of the trial on October 23, 2013.     CR 59-60.

A claim of deprivation of counsel during this period requires a showing that the

defendant did not have an opportunity to file a motion for new trial.     See Cooks v.

State, 240 S. W.2d 906, 910-11 (Tex. Crim. App.-2007).             Trial counsel is

presumed to have adequately represented a defendant during this period, which a

defendant can rebut.   Id.   Not only does Brown fail to rebut this presumption, the

record affirmatively shows trial counsel acted properly.   Appellant utterly fails to

discharge his burden of production on this particular aspect of his broad claim of

ineffective assistance of counsel.

      Brown's real problem is that he spumed his opportunity for a potential

reduction in his sentence and a chance for his trial complaints to be developed

more fully, an opportunity that trial counsel impliedly engineered for him.        The

record shows a motion for new trial hearing was scheduled for January 14, 2014.

Brown was bench-warranted back from prison and was available for his requested

hearing.   But he refused to enter the courtroom and participate.        In the case at

bar, Brown seeks to impute ineffective assistance to trial counsel based on his,


                                          23
Brown's, own self-defeating actions.   As Appellant has not discharged his burden

of production on the alleged deficient acts of representation, Brown should not be

allowed to prevail and cast blame on another for a disaster of his own making.

The State respectfully requests that the Court overrule this point of error alleging

ineffective assistance of counsel.




                                        24
                                    PRAYER



      For these reasons, the Travis County District Attorney, on behalf of the State

of Texas, asks this Court to overrule the points of error and affirm the judgment of

conviction for James A. Brown.

                                      Respectfully submitted,

                                      ROSEMARY LEHMBERG
                                      TRAVIS COUNTY DISTRICT ATTORNEY

                                      ~~r;z
                                      WILLIAM G. SWAIM III
                                      SPECIAL ASSIST ANT DISTRICT ATTORNEY
                                      State Bar Number 00785074
                                      Post Office Box 1748
                                      Austin, Texas 78767
                                      Telephone: (512) 854-9415
                                      Bill.Swaim@traviscountytx.gov

                                      ATTORNEYS FOR THE STATE OF TEXAS




                                        25
                       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
3,853 words, excluding words contained in those parts of the brief that Rule 9.4(i)
exempts from inclusion in the word count.



                                        Is/ William G. Swaim III
                                        Special Assistant District Attorney


                          CERTIFICATE OF SERVICE

      I certify that, on this the 6th day of March, 2015, a copy of the foregoing
motion was sent, via U.S. mail, email, or electronically through the electronic file
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
                   atton1eybernard@yahoo.com



                                       Is/ William G. Swaim III
                                       Special Assistant District Attorney




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