                                                                                       ACCEPTED
                                                                                   01-14-00124-cr
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              1/2/2015 4:35:32 PM
                 No. 01-14-00124-CR                                          CHRISTOPHER PRINE
                                                                                           CLERK
                 No. 01-14-00125-CR
                            In the
                   Court of Appeals                           FILED IN
                           For the                     1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
                 First District of Texas               1/2/2015 4:35:32 PM
                         At Houston                    CHRISTOPHER A. PRINE
                                                               Clerk
                  

               No. 1388074 and No. 1388075
                  In the 177th District Court
                   Of Harris County, Texas

                  

            EVAN STUART FAIRBANKS
                           Appellant
                             V.
              THE STATE OF TEXAS
                           Appellee

                  

             STATE’S APPELLATE BRIEF

                  

                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                ALAN CURRY
                                                State Bar No: 05263700
                                                Assistant District Attorney
                                                Harris County, Texas

                                                ERIK LOCASCIO
                                                FARNAZ FAIAZ
                                                MIA MAGNESS
                                                Assistant District Attorneys
                                                Harris County, Texas

                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                Tel.: 713/755-5826
                                                curry_alan@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.


                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Alan Curry  Assistant District Attorney on appeal

             Erik Locascio  Assistant District Attorney at trial

             Farnaz Faiaz  Assistant District Attorney at trial

             Mia Magness  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Evan Stuart Fairbanks

      Counsel for Appellant:

             Connie Williams  Counsel at trial and on appeal

             Jyll Rekoff  Counsel at trial

      Trial Judge:

             Hon. Ryan Patrick  Presiding Judge


                                           i
ii
                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................i

IDENTIFICATION OF THE PARTIES ...........................................................................i

INDEX OF AUTHORITIES ............................................................................................. iv

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

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 3

REPLY TO ISSUE FOR REVIEW ONE ......................................................................... 4

    Alternative Argument – Jurisdiction .............................................................................. 5

    Authority to Restore Jurisdiction to Trial Court........................................................... 6

    Abatement of an Appeal when Error is Apparent in the Record............................... 9

    Post-Conviction Writ of Habeas Corpus ..................................................................... 13

REPLY TO ISSUE FOR REVIEW TWO ...................................................................... 15

CONCLUSION ................................................................................................................... 20

CERTIFICATE OF COMPLIANCE .............................................................................. 21

CERTIFICATE OF SERVICE ......................................................................................... 22




                                                              iii
                                        INDEX OF AUTHORITIES
CASES

Adkins v. State,
 764 S.W.2d 782 (Tex. Crim. App. 1988) ......................................................................... 6
Barton v. State,
  21 S.W.3d 287 (Tex. Crim. App. 2000) ......................................................................... 11
Batson v. Kentucky,
  476 U.S. 79, 106 S. Ct. 1712,
  90 L. Ed. 2d 69 (1986) ..................................................................................................... 10
Berry v. State,
  995 S.W.2d 699 (Tex. Crim. App. 1999) ..................................................................... 6, 7
Bowler v. State,
  822 S.W.2d 334 (Tex. App.—
  San Antonio 1992, pet. ref’d) .......................................................................................... 13
Brandon v. State,
  599 S.W.2d 567 (Tex. Crim. App. 1979) ....................................................................... 12
Callaway v. State,
  594 S.W.2d 440 (Tex. Crim. App. 1980) ....................................................................... 12
Campbell v. State,
  77 S.W.3d 918 (Tex. App.—
  Amarillo 2002, no pet.) ...................................................................................................... 5
Cartwright v. State,
  605 S.W.2d 287 (Tex. Crim. App. 1980) ....................................................................... 11
Connor v. State,
  877 S.W.2d 325 (Tex. Crim. App. 1994) ....................................................................... 10
Crosson v. State,
  36 S.W.3d 642 (Tex. App.—
  Houston [1st Dist.] 2000, no pet.).................................................................................... 9
Drew v. State,
  743 S.W.2d 207 (Tex. Crim. App. 1987) ................................................................. 7, 8, 9
Duncan v. Evans,
 653 S.W.2d 38 (Tex. Crim. App. 1983) ........................................................................... 6




                                                               iv
Easton v. State,
  920 S.W.2d 747 (Tex. App.—
  Houston [1st Dist.] 1996, no pet.).................................................................................. 13
Emerson v. State,
 820 S.W.2d 802 (Tex. Crim. App. 1991) ....................................................................... 11
Ex parte Caldwell,
 383 S.W.2d 587 (Tex. Crim. App. 1964) ......................................................................... 7
Ex parte Duffy,
 607 S.W.2d 507 (Tex. Crim. App. 1980) ....................................................................... 14
Ex parte Torres,
 943 S.W.2d 469 (Tex. Crim. App. 1997) ....................................................................... 14
Frangias v. State,
  392 S.W.3d 642 (Tex. Crim. App. 2013) ....................................................................... 16
Garcia v. Dial,
  596 S.W.2d 524 (Tex. Crim. App. 1980) ......................................................................... 7
Garcia v. State,
  595 S.W.2d 538 (Tex. Crim. App. 1980) ....................................................................... 12
Garrett v. State,
  749 S.W.2d 784 (Tex. Crim. App. 1986) ......................................................................... 6
Garza v. State,
  896 S.W.2d 192 (Tex. Crim. App. 1995) ......................................................................... 8
Green v. State,
  906 S.W.2d 937 (Tex. Crim. App. 1995) ................................................................... 6, 11
Guzman v. State,
  85 S.W.3d 242 (Tex. Crim. App. 2002) ......................................................................... 11
Hutchinson v. State,
 86 S.W.3d 636 (Tex. Crim. App. 2002) ......................................................................... 11
Jackson v. State,
   973 S.W.2d 954 (Tex. Crim. App. 1998) ....................................................................... 14
James v. State,
  745 S.W.2d 28 (Tex. Crim. App. 1988) ......................................................................... 12
Jones v. State,
   338 S.W.3d 725 (Tex. App.—
   Houston [1st Dist.] 2011), aff’d,
   364 S.W.3d 854 (Tex. Crim. App. 2012) ....................................................................... 19


                                                           v
Jones v. State,
   364 S.W.3d 854 (Tex. Crim. App.),
   cert. denied, 133 S. Ct. 370 (2012) ..................................................................................... 19
Keeton v. State,
  724 S.W.2d 58 (Tex. Crim. App. 1987) ......................................................................... 11
Kipp v. State,
  876 S.W.2d 330 (Tex. Crim. App. 1994) ....................................................................... 12
Lewis v. State,
  711 S.W.2d 41 (Tex. Crim. App. 1986) ........................................................................... 7
Lopez v. State,
  18 S.W.3d 637 (Tex. Crim. App. 2000) ........................................................................... 6
Manning v. State,
 730 S.W.2d 744 (Tex. Crim. App. 1987) ....................................................................... 12
Martinez v. State,
 74 S.W.3d 19 (Tex. Crim. App. 2002)............................................................................ 10
McIntire v. State,
 698 S.W.2d 652 (Tex. Crim. App. 1985) ................................................................... 9, 10
Miller-El v. State,
 748 S.W.2d 459 (Tex. Crim. App. 1988) ....................................................................... 11
Nichols v. State,
  877 S.W.2d 494 (Tex. App.—
  Fort Worth 1994, pet. ref’d)............................................................................................ 19
Odelugo v. State,
  443 S.W.3d 131 (Tex. Crim. App. 2014) ....................................................................... 18
Olivo v. State,
  918 S.W.2d 519 (Tex. Crim. App. 1996) ......................................................................... 8
Perez v. State,
  310 S.W.3d 890 (Tex. Crim. App. 2010) ....................................................................... 16
Pettway v. State,
  4 S.W.3d 390 (Tex. App.—
  Houston [1st Dist.] 1999, no pet.).................................................................................. 13
Reyes v. State,
  849 S.W.2d 812 (Tex. Crim. App. 1993) ....................................................................... 10
Robinson v. State,
  16 S.W.3d 808 (Tex. Crim. App. 2000) ......................................................................... 15


                                                              vi
Rousseau v. State,
  824 S.W.2d 579 (Tex. Crim. App. 1992) ....................................................................... 11
Sandoval v. State,
  993 S.W.2d 417 (Tex. App.—
  Corpus Christi 1999, no pet.) ............................................................................................ 5
Spence v. State,
  758 S.W.2d 597 (Tex. Crim. App. 1988) ....................................................................... 12
State ex rel. Cobb v. Godfrey,
  739 S.W.2d 47 (Tex. Crim. App. 1987) ........................................................................... 8
State v. Garza,
  931 S.W.2d 560 (Tex. Crim. App. 1996) ......................................................................... 8
State v. McLain,
  337 S.W.3d 268 (Tex. Crim. App. 2011) ....................................................................... 19
State v. Oliver,
  808 S.W.2d 491 (Tex. Crim. App. 1991) ....................................................................... 11
State v. Riewe,
  13 S.W.3d 408 (Tex. Crim. App. 2000) ....................................................................... 7, 8
Strickland v. Washington,
   466 U.S. 668 (1984) .......................................................................................................... 16
Trevino v. State,
  565 S.W.2d 938 (Tex. Crim. App. 1978) ....................................................................... 10
Trevino v. State,
  841 S.W.2d 385 (Tex. Crim. App. 1992) ....................................................................... 11
Williams v. State,
 731 S.W.2d 563 (Tex. Crim. App. 1987) ....................................................................... 11


STATUTES

TEX. CRIM. PROC. CODE ANN. art. 38.22, § 6
  (Vernon 1979) ................................................................................................................... 11


RULES



                                                                 vii
TEX. R. APP. P. 25.2 ................................................................................................................ 6
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................. i
TEX. R. APP. P. 9.4(g) .............................................................................................................. i




                                                                 viii
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

      In cause number 1388074, the appellant was charged with the felony offense of

possession of marihuana (C.R. I-8), and, in cause number 1388075, the appellant was

charged with the felony offense of possession of a controlled substance (C.R. II-8).

In both cases, the appellant entered pleas of guilty in accordance with plea bargain

agreements with the State (C.R. I-29-30; C.R. II-29-30). The appellant filed motions

to withdraw his pleas of guilty, and the trial judge denied those motions (C.R. I-39-42;

C.R. II-39-42).   After the trial judge found the appellant guilty of the charged

offenses, he assessed the appellant’s punishment at confinement for two years in

prison for the first offense and 180 days in the state jail for the second offense (C.R.

I-50; C.R. II-50). After motions for new trial were timely filed (C.R. I-53; C.R. II-53),

written notices of appeal were timely filed (C.R. I-65; C.R. II-65).

                         




                             STATEMENT OF FACTS

      The State challenges all factual assertions in the appellant’s brief and presents

the following account of the facts.
      The docket sheets reflect that, on the date that the appellant entered his pleas

of guilty, a court reporter was waived (C.R. I-82; C.R. II-82). Over a month after he

had entered his pleas of guilty, the appellant filed a Motion to Withdraw Plea of

Guilty in each case, claiming that he was coerced by his trial attorney to enter pleas of

guilty, and that his pleas of guilty were, therefore, involuntary. Affidavits from the

appellant and his mother were attached to the Motion to Withdraw Plea of Guilty,

and the Motion to Withdraw Plea of Guilty was denied on the same date that it was

filed (C.R. I-39-45; C.R. II-39-45). Arguments were presented on the Motion to

Withdraw Plea of Guilty, but it is not clear what—if any—evidence was presented or

whether a court reporter was present or had been waived for that hearing (C.R. I-42;

C.R. II-42).

      On February 6, 2014, the trial judge sentenced the appellant in accordance with

the plea bargain agreements—two years in prison for the possession of marihuana

offense and 180 days in the state jail for the possession of a controlled substance

offense (C.R. I-50; C.R. II-50). On the same date, the appellant filed a motion for

new trial in each case, in which he repeated the allegations set forth in his Motion to

Withdraw Plea of Guilty. The appellant also made the claim that his trial attorney

rendered ineffective assistance of counsel by not filing a motion to suppress based

upon the alleged invalidity of the search warrant that was attached to the motion for

new trial. The trial judge denied the motion for new trial on the same date that it was




                                           2
filed, noting that a motion to suppress had in fact been filed by the appellant’s trial

attorney (C.R. I-53-57, 82; C.R. II-53-57, 82).

      On February 6, 2014, the appellant field a notice of appeal in each case, noting

that he wished to appeal the trial judge’s ruling on his Motion to Withdraw Plea of

Guilty (C.R. I-65; C.R. II-65), and the trial judge certified that the appellant had the

right to appeal, at least by way of permission from the trial judge (C.R. I-35; C.R. II-

350. On March 4, 2014, after the appellant’s original motion for new trial had already

been denied, the appellant filed an amended motion for new trial, in which he added

the allegation that his trial attorney rendered ineffective assistance of counsel by not

obtaining a ruling on the motion to suppress (C.R. I-71-74; C.R. II-71-74).

                         




                        SUMMARY OF THE ARGUMENT

      The appellant has failed to raise facts that would necessitate or authorize this

Court to restore jurisdiction to the trial court, so that the trial court can hold another

hearing on the appellant’s motion for new trial. Therefore, this Court was correct to

deny the appellant’s motion to abate the appeal. The appellant has failed to present a

sufficient record upon which to base a claim of ineffective assistance of counsel.

Although the record does not reflect to what extent a motion to suppress was

litigated, if any, a search warrant that allegedly provided the basis for a search warrant

                                            3
does appear to state sufficient probable cause to justify a search. The trial court did

not abuse his discretion in denying the appellant’s motion for new trial, and the

appellant has failed to prove his claim of ineffective assistance of counsel.

                         




                      REPLY TO ISSUE FOR REVIEW ONE

       Under his first issue for review, the appellant claims that this Court “erred in

denying Appellant’s motion to abate his appeal so that he could adequately develop

the record to assert his ineffective assistance of counsel allegation on direct appeal.”

In each of the cases before this Court, the appellant has filed a motion to abate, in

which he asks this Court to “remand these cases to the trial court and to direct the

trial court to take whatever action it deems necessary or appropriate to have former

trial attorney Jyll Rekoff appear and testify regarding Appellant’s motion for new

trial.” (Appellant’s motion at 8-9).

       In his motion to abate, the appellant conceded that a hearing was held on his

motion for new trial (Appellant’s motion at 2). The appellant also noted that, at that

motion for new trial hearing, he was not able to obtain the testimony of his trial

attorney, Jyll Rekoff (Appellant’s motion at 3). In his motion to abate, the appellant

also noted that he was “not alleging erroneous action, failure, or refusal to act by the

trial court, but is alleging that the 75 day, mandate to rule on Appellant’s Motion for


                                            4
New Trial imposed by Rule 21.8(a) TRAP, arbitrarily stripped the trial court of

jurisdiction, and prevents the proper presentation of these cases to the Court of

Appeals.” (Appellant’s motion at 1).

       But a hearing was in fact held on the appellant’s motion for new trial, and the

trial court ruled on the motion for new trial by denying the motion in each case. The

appellant does not claim that he sought (or was denied) a continuance of his motion

for new trial, so that he could obtain the testimony of his trial attorney. The State

continues to respectfully suggests that the appellant has failed to raise facts that would

necessitate or authorize this Court to restore jurisdiction to the trial court, so that the

trial court can hold yet another hearing on the appellant’s motion for new trial.

Therefore, this Court was correct to deny the appellant’s motion to abate the appeal.




                         Alternative Argument – Jurisdiction

       As it has in the past, the State continues to respectfully contend that (1) a court

of appeals does not have the authority to restore jurisdiction to a trial court, so that

the trial court would be required to file and have heard an out-of-time motion for new

trial (2) absent some indication already in the appellate record that some error has

occurred that would necessitate a hearing on a motion for new trial. Cf. Campbell v.

State, 77 S.W.3d 918, 920-21 (Tex. App.—Amarillo 2002, no pet.). Cf. also Sandoval v.

State, 993 S.W.2d 417, 418-19 (Tex. App.—Corpus Christi 1999, no pet.).


                                            5
                  Authority to Restore Jurisdiction to Trial Court

      It is well settled that, once a court of appeals obtains jurisdiction over an

appeal, the trial court loses jurisdiction over the case. Lopez v. State, 18 S.W.3d 637,

639 & n.9 (Tex. Crim. App. 2000) (citing Green v. State, 906 S.W.2d 937, 939 (Tex.

Crim. App. 1995)). The trial court cannot thereafter regain jurisdiction unless the

court of appeals properly returns the case to that court. Lopez, 18 S.W.3d at 639 & n.10

(citing Green v. State, 906 S.W.2d 937, 940 n.4 (Tex. Crim. App. 1995); Adkins v. State,

764 S.W.2d 782, 784 (Tex. Crim. App. 1988); Garrett v. State, 749 S.W.2d 784, 786-87

(Tex. Crim. App. 1986); Duncan v. Evans, 653 S.W.2d 38, 40 (Tex. Crim. App. 1983)).

      In Green v. State, the Texas Court of Criminal Appeals “held that once the trial

court has submitted the record to the court of appeals, the trial court loses jurisdiction

until it receives a mandate from the appellate court. TEX. R. APP. P. 25.2(e) states,

“Once the record has been filed in the appellate court, all further proceedings by the

trial court—except as provided otherwise by law or by these rules—will be suspended

until the trial court receives the appellate-court mandate.” Also, it is axiomatic that,

where there is no jurisdiction “the power of a court to act is absent as if it [the court]

did not exist.” Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995). See Berry v.

State, 995 S.W.2d 699, 700 (Tex. Crim. App. 1999). See also Drew v. State, 743 S.W.2d




                                            6
207, 223 (Tex. Crim. App. 1987) (citing Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.

Crim. App. 1980); Ex parte Caldwell, 383 S.W.2d 587 (Tex. Crim. App. 1964)).

      In Berry v. State, the Texas Court of Criminal Appeals further held that, because

supplemental findings of fact and conclusions of law had been made after the

appellate record had been filed with the court of appeals, the trial court was without

jurisdiction to make those supplemental findings of fact and conclusions of law. The

court further held that the Texas Rules of Appellate Procedure did not give the court

of appeals the authority to give jurisdiction to the trial court to make those supplemental

findings of fact and conclusions of law. See Berry, 995 S.W.2d at 700-02. Cf. Lewis v.

State, 711 S.W.2d 41, 42-44 (Tex. Crim. App. 1986) (when case was abated to trial

court to determine why defendant’s appellate brief had not been filed, trial judge was

not permitted to hold evidentiary hearing, in which defendant could present evidence

in hopes of supporting his intended claim of ineffective assistance of counsel).

      Therefore, it is also well settled that, under the Texas Rules of Appellate

Procedure, jurisdiction cannot be retroactively obtained. State v. Riewe, 13 S.W.3d 408,

412-13 (Tex. Crim. App. 2000). In State v. Riewe, in reaffirming such a holding, the

Texas Court of Criminal Appeals stated,

      [W]hen the Legislature granted this Court rule-making authority, it
      expressly provided that the rules could not abridge, enlarge or modify
      the substantive rights of a litigant. And our caselaw prevents a court of
      appeals from using an appellate rule to create jurisdiction where none
      exists. It does not matter which appellate rule the court of appeals
      attempts to use, be it former Rule 83, former Rule 2(b), or current Rule
      25.2(d). The point is that, once jurisdiction is lost, the court of appeals

                                            7
        lacks the power to invoke any rule to thereafter obtain jurisdiction. Even
        a claimed deprivation of constitutional rights cannot confer jurisdiction upon a court
        where none exists, anymore than parties can by agreement confer jurisdiction upon a
        court.

Riewe, 13 S.W.3d at 413 (citations omitted) (emphasis added). See also Olivo v. State, 918

S.W.2d 519, 525 (Tex. Crim. App. 1996) (citing Drew v. State, 743 S.W.2d 207, 225

(Tex. Crim. App. 1987)).

        In the instant case, a court of appeals does not have the authority to restore

jurisdiction to the trial court to consider an otherwise untimely filed motion for new

trial, over which the trial court has already lost jurisdiction. As the Texas Court of

Criminal Appeals stated in Oldham:

        The time limits set forth in the Rules of Appellate Procedure are not
        discretionary. . . . If appellate courts were able to suspend the
        timetables, to which they are held to comply, there would be nothing
        this Court could do to promote the timeliness of the appellate process
        and the very purpose of the Rules would be undermined.

Oldham, 977 S.W.2d at 358 (quoting Garza v. State, 896 S.W.2d 192, 194 (Tex. Crim.

App. 1995). See also State v. Garza, 931 S.W.2d 560, 563 (Tex. Crim. App. 1996); State

ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987) (“Suspension of rules

of appellate procedure by this Court is a serious matter, not to be undertaken

lightly.”).

        As the Texas Court of Criminal Appeals further stated in Oldham, “A

defendant’s right to file a motion for new trial emanates exclusively from the Rules of

Appellate Procedure, and the Rules must be strictly complied with when seeking the


                                                  8
remedy.” Oldham, 977 S.W.2d at 361 (citing Drew v. State, 743 S.W.2d 207, 223 (Tex.

Crim. App. 1987) (there is no common law right to move for a new trial in a criminal

case; remedy must be pursued in the manner prescribed)). This Court should not

order the trial court to give the appellant an opportunity to file and have heard an out-

of-time motion for new trial, when the trial court has already lost jurisdiction to

consider an out-of-time motion for new trial.



         Abatement of an Appeal when Error is Apparent in the Record

      There are situations in which appellate courts have properly permitted

abatements of appeals. See McIntire v. State, 698 S.W.2d 652, 662 (Tex. Crim. App.

1985); Crosson v. State, 36 S.W.3d 642 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

In McIntire v. State, the Texas Court of Criminal Appeals was confronted with actual

error on the part of the trial court in failing to hold a hearing on a timely filed motion

for new trial. Therefore, the court abated the appeal to determine if a hearing on a

motion for new trial could even be held, since three years had passed during the

pendency of the appeal. Similarly, in Crosson v. State, this Court had been confronted

with actual error on the part of the trial court in excluding testimony at a hearing on

the defendant’s motion to suppress. See Crosson v. State, 36 S.W.3d 642 (Tex. App.—

Houston [1st Dist.] 2000, no pet.)).       In the instant case, the appellant has not




                                            9
identified any error on the part of the trial court in not permitting testimony to be

developed at trial.

       In Trevino v. State, the defendant was denied his right to have an attorney at the

hearing on a timely filed motion for new trial—despite his repeated requests for an

attorney throughout the hearing on his motion for new trial. See Trevino v. State, 565

S.W.2d 938, 939-40 (Tex. Crim. App. 1978). Cf. also Connor v. State, 877 S.W.2d 325,

325-27 (Tex. Crim. App. 1994). Undeniably, in that case, the defendant was entitled

to an abatement of the appeal, so that he could have his motion for new trial

properly heard before the trial court. In that case, there was actual error on the part

of the trial court in permitting a motion for new trial to be heard in the absence of

the defendant’s attorney.

       Therefore, when a trial court commits the actual error of refusing to have a

hearing on a defendant’s motion for new trial—even though the defendant has taken

the appropriate actions in order for a hearing to be required—it is appropriate for the

case to be abated or remanded so that a hearing can be held on the defendant’s

motion for new trial. See Martinez v. State, 74 S.W.3d 19, 21-22 (Tex. Crim. App.

2002); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); McIntire v. State, 698

S.W.2d 652, 660-61 (Tex. Crim. App. 1985).

       Moreover, the Texas Court of Criminal Appeals has consistently abated appeals

to the trial court when—in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,

90 L. Ed. 2d 69 (1986)—the trial judge has committed the actual error of refusing to

                                           10
permit a full and/or appropriate hearing on the defendant’s claim that the trial

prosecutor engaged in purposeful racial discrimination in the exercise of his

peremptory challenges. See Hutchinson v. State, 86 S.W.3d 636 (Tex. Crim. App. 2002);

Guzman v. State, 85 S.W.3d 242 (Tex. Crim. App. 2002); Trevino v. State, 841 S.W.2d

385, 387 (Tex. Crim. App. 1992); Rousseau v. State, 824 S.W.2d 579, 580-85 (Tex. Crim.

App. 1992); Emerson v. State, 820 S.W.2d 802, 805 (Tex. Crim. App. 1991); State v.

Oliver, 808 S.W.2d 491, 496 (Tex. Crim. App. 1991); Miller-El v. State, 748 S.W.2d 459,

459-61 (Tex. Crim. App. 1988); Williams v. State, 731 S.W.2d 563, 564 (Tex. Crim.

App. 1987); Keeton v. State, 724 S.W.2d 58, 66-67 (Tex. Crim. App. 1987).

      The Texas Court of Criminal Appeals has also abated appeals so that a

restitution hearing can be held, in cases in which the trial court has erroneously

ordered restitution. See Barton v. State, 21 S.W.3d 287, 289-90 (Tex. Crim. App. 2000);

Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). Abatement of an

appeal back to the trial court is also appropriate when the trial court commits the

actual error of failing to file findings of fact and conclusions of law on the

voluntariness of a defendant’s confession, in violation of TEX. CRIM. PROC. CODE

ANN. art. 38.22, § 6 (Vernon 1979). See Green v. State, 906 S.W.2d 937, 938-40 (Tex.

Crim. App. 1995). The court has also held that abatement of an appeal back to the

trial court is appropriate when the trial court commits the error of refusing to permit

the defendant to present a bill of exception or other offer of proof. See Kipp v. State,




                                          11
876 S.W.2d 330, 340 n.15 (Tex. Crim. App. 1994); Spence v. State, 758 S.W.2d 597, 599-

600 (Tex. Crim. App. 1988).

       The Texas Court of Criminal Appeals has permitted an abatement for the

correction of errors or inaccuracies in the appellate record, as specifically permitted by

the rules of appellate procedure. See James v. State, 745 S.W.2d 28 (Tex. Crim. App.

1988). The court has also permitted abatement of an appeal to the trial court when

the trial judge has erroneously failed to hold a proper hearing on the defendant’s

competency to stand trial. See Manning v. State, 730 S.W.2d 744, 750 (Tex. Crim. App.

1987); Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979); Garcia v. State, 595

S.W.2d 538, 542 (Tex. Crim. App. 1980); Callaway v. State, 594 S.W.2d 440, 441 (Tex.

Crim. App. 1980). In all of these situations in which the Texas Court of Criminal

Appeals has permitted an abatement of the appeal back to the trial court for further

proceedings, the record has reflected some actual error on the part of the trial court.

In that situation, an abatement of the appeal would be appropriate under TEX. R. APP.

P. 44.4.

       Based upon these authorities, the State contends that (1) a court of appeals

does not have the authority to restore jurisdiction to a trial court, so that the trial

court would be required to file and have heard an out-of-time motion for new trial (2)

absent some indication already in the appellate record that some error has occurred

that would necessitate a hearing on a motion for new trial. In that respect, the

appellant has not identified any error in the current record on appeal that would

                                           12
necessitate the hearing of an out-of-time motion for new trial. the appellant has not

met his burden to “establish” or “demonstrate from the record” that he was

unrepresented or ineffectively represented during the time period during which a

motion for new trial could have been filed.



                     Post-Conviction Writ of Habeas Corpus

      If the appellant wishes to obtain the testimony of his trial attorney on a claim

of ineffective assistance of counsel, such a claim could be presented by way of post-

conviction writ of habeas corpus. The State urges this Court to again express a

preference for that manner of seeking post-conviction relief in such cases. See Pettway

v. State, 4 S.W.3d 390, 391-92 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A

claim of ineffective assistance of counsel can and should be properly and fully

developed in a post-conviction writ of habeas corpus. See Yarbrough, 57 S.W.3d at 617.

See also Easton v. State, 920 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1996, no

pet.); Bowler v. State, 822 S.W.2d 334 (Tex. App.—San Antonio 1992, pet. ref’d).

             Experience has taught us that in most instances where the
             claim of ineffective assistance of counsel is raised, the
             record on direct appeal is simply not in a shape, perhaps
             because of the very alleged ineffectiveness below, that
             would adequately reflect the failings of trial counsel.
             Indeed, in a case such as this, where the alleged derelictions
             primarily are errors of omission de hors the record rather
             than commission revealed in the trial record, collateral attack
             may be . . . the vehicle by which a thorough and detailed


                                           13
             examination of alleged ineffectiveness may be developed
             and spread upon a record.

      Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). “For this
      reason we have held that, when direct appeal has not provided an
      adequate record to evaluate a claim which might be substantiated
      through additional evidence gathered in a habeas corpus proceeding, we
      will not apply the general doctrine that forbids raising a claim on habeas
      corpus after it was rejected on appeal. Ex parte Torres, 943 S.W.2d 469,
      475 (Tex. Crim. App. 1997).” Jackson v. State, 973 S.W.2d 954, 957 (Tex.
      Crim. App. 1998).

Oldham, 977 S.W.2d at 363. In addition to expressing a preference for raising a claim

of ineffective assistance of counsel by way of a post-conviction writ of habeas

corpus, as opposed to a direct appeal, the Texas Court of Criminal Appeals has

further stated a preference for raising a claim of ineffective assistance of counsel by

way of a post-conviction writ of habeas corpus, as opposed to a motion for new trial:

      [T]here is not generally a realistic opportunity to adequately develop the
      record for appeal in post-trial motions. In this regard, we have noted
      that a post-conviction writ proceeding, rather than a motion for new
      trial, is the preferred method for gathering the facts necessary to
      substantiate such a Sixth Amendment challenge:

             While expansion of the record may be accomplished in a
             motion for new trial, that vehicle is often inadequate
             because of time constraints and because the trial record has
             generally not been transcribed at this point. Further,
             mounting an ineffective assistance attack in a motion for
             new trial is inherently unlikely if the trial counsel remains
             counsel during the time required to file such a motion.
             Hence, in most ineffective assistance claims, a writ of
             habeas corpus is essential to gathering the facts necessary
             to adequately evaluate such claims.

      Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)


                                          14
Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000). If the appellant has a

legitimate claim of ineffective assistance of counsel on the part of his trial attorney,

he will be best able to establish that fact and obtain the proper relief by way of a

post-conviction writ of habeas corpus, and not through an ordered second hearing

on his motion for new trial. This Court was correct to deny the appellant’s motion

to appeal the appeal. The appellant’s first issue for review should be overruled.

                         




                      REPLY TO ISSUE FOR REVIEW TWO

       Under his second issue for review, the appellant claims, “The Trial Court erred

in denying Appellant’s motion for new trial alleging ineffective assistance of trial

counsel at two stages: 1) His plea of guilty; 2) Failure to pursue his motion to

suppress.” Within the body of his brief, however, the appellant appears to concede

that he cannot prevail—on the current record—on the allegation that his trial attorney

rendered ineffective assistance of counsel with regard to his pleas of guilty (appellant’s

brief at 10-11).

       As noted in the State’s reply to the appellant’s first point of error, that aspect of

an allegation of ineffective assistance of counsel should properly be presented by way

of an application for a post-conviction writ of habeas corpus. This Court’s review of

the appellant’s preferred claim of ineffective assistance of counsel—his trial attorney’s

                                            15
alleged failure to sufficiently pursue a motion to suppress—is further aggravated by

the fact that—at the hearing on the appellant’s motion for new trial—the parties only

litigated the claim that the appellant’s trial attorney had rendered ineffective assistance

of counsel by causing the appellant to enter involuntary pleas of guilty.

      Strickland v. Washington, 466 U.S. 668 (1984), defines the elements required to

show ineffective assistance of counsel.      There are two required components:          a

performance component and a prejudice component. First, the defendant must show

that counsel's performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. To satisfy this prong of the analysis, a defendant

must show that counsel's representation fell below an objective standard of

reasonableness based upon prevailing professional norms.           For this performance

inquiry, an appellate court should consider all of the circumstances, with a strong

presumption that counsel's conduct fell within the wide range of reasonable

professional assistance. Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010).

This strong presumption means that, unless there is a record sufficient to demonstrate

that counsel's conduct was not the product of an informed strategic or tactical

decision, a reviewing court should presume that trial counsel's performance was

constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it. Frangias v. State, 392 S.W.3d 642, 652

(Tex. Crim. App. 2013).

                                            16
       Second, the defendant must show that the deficient performance prejudiced

the defense. This requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. To satisfy this element, the

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. To

succeed on an ineffectiveness claim, a defendant must show both components; failure

to show either deficient performance or prejudice will defeat the ineffectiveness claim.

The defendant bears the burden of proving ineffectiveness by a preponderance of the

evidence. Perez, 310 S.W.3d at 893.

       In ruling on a motion for new trial, in which the defendant has raised a claim of

ineffective assistance of counsel, the trial court has the right to accept or reject any

part of a witness's testimony.       Indeed, as the sole factfinder and judge of the

credibility and weight of each piece of evidence, whether presented during live

testimony or in affidavits, the trial court is within its right to disbelieve any of the

assertions upon which the defendant’s claims of ineffective assistance of counsel are

based, so long as the basis for that disbelief is supported by at least one reasonable

view of the record. This is true even when the State does not deign to controvert the

evidence, affidavit or otherwise, that the defendant had presented. Finally, because

claims of ineffective assistance of counsel involve mixed questions of law and fact

that often contain subsidiary questions of historical fact, some of which may turn

upon the credibility and demeanor of witnesses, an appellate court should review the

                                             17
trial court's rulings on the matter for an abuse of discretion, reversing only if the trial

judge's ruling was clearly erroneous and arbitrary, such as when no reasonable view of

the record could support the trial court's ruling. Odelugo v. State, 443 S.W.3d 131, 137

(Tex. Crim. App. 2014).

      The appellant appears to claim that his trial attorney rendered ineffective

assistance of counsel in failing to adequately litigate the sufficiency of the search

warrant affidavit because the affidavit did not reveal when a confidential informant

had viewed illegal narcotics at the particular location where the illegal narcotics were

recovered (appellant’s brief at 11-13).     The search warrant affidavit provided in

pertinent part:

             Within the past forty eight (48) hours, Affiant and members of
      the Houston Money Laundering Initiative Task Force conducted a
      narcotics investigation at the above described location believed to be
      storing a large quantity of marijuana.

              Affiant spoke to a credible and reliable person who will be
      referred to as a confidential informant (CI). Affiant has worked with the
      CI in the past and the CI has provided information about narcotics
      traffickers that Affiant has been able to independently verify.

             The CI informed Affiant that the CI met the above listed suspect
      and that he has a large quantity of marijuana for sale. The suspect told
      the CI that he is storing the large quantity of marijuana at the described
      location for the purpose of selling to customers.

(C.R. I-60; C.R. II-60). The affidavit reflects that a narcotics investigation began and

continued during a 48-hour period before the warrant was presented to a magistrate.

The informed told the affiant that the suspect “has” a large quantity of marijuana for


                                            18
sale, and that the suspect “is storing” the large quantity of marijuana at the suspect

location.

       The magistrate could reasonably infer from these statements that both the

observation by the informant and the relaying of the information had occurred within

the 48 hours preceding the presentment of the affidavit to the magistrate. See State v.

McLain, 337 S.W.3d 268, 274 (Tex. Crim. App. 2011) (holding magistrate could infer

informant observed defendant with methamphetamine and relayed information to

officer within previous 72 hours). The use of the present tense also suggests that the

large quantity of marijuana was at the suspect location contemporaneously or at least

recent to the presentation of the affidavit to the magistrate. See Jones v. State, 338

S.W.3d 725, 737-38 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854

(Tex. Crim. App. 2012); Nichols v. State, 877 S.W.2d 494, 498 (Tex. App.—Fort Worth

1994, pet. ref’d). See also Jones v. State, 364 S.W.3d 854, 860 (Tex. Crim. App.), cert.

denied, 133 S. Ct. 370 (2012) (“We have suggested that time is a less important

consideration when an affidavit recites observations that are consistent with ongoing

drug activity at a defendant's residence.”). The appellant has failed to prove that his

trial attorney rendered ineffective assistance of counsel by failing to adequately litigate

the sufficiency of the search warrant affidavit. The appellant’s second issue for review

should be overruled.

                         



                                            19
                                  CONCLUSION

      It is respectfully submitted that all things are regular and that the convictions

should be affirmed.

                                                     DEVON ANDERSON
                                                     District Attorney
                                                     Harris County, Texas


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net




                                         20
                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 5,073 words, based upon the representation provided by the word

processing program that was used to create the document.

                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        21
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on January 2, 2015:


      Connie B. Williams
      Attorney at Law
      1314 Texas Avenue, Suite 710
      Houston, Texas 77002
      CBW1710@hotmail.com


                                                      /s/ Alan Curry

                                                      ALAN CURRY
                                                      Assistant District Attorney
                                                      Harris County, Texas
                                                      1201 Franklin, Suite 600
                                                      Houston, Texas 77002
                                                      (713) 755-5826
                                                      TBC No. 05263700
                                                      curry_alan@dao.hctx.net

Date: January 2, 2015




                                          22
