No. 01-15-00216-CR No. 01-15-00217-CR

§ IN THE COURT OF APPEALS IN RE § FIRST JUDICIAL DISTRICT BRANDON JAY CARTER § HOUSTON, TEXAS STATE’S RESPONSE TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS: NOW COMES the State of Texas, by and through its District Attorney, 268th Judicial District, Fort Bend County, and responds to this Court’s request for a response from the real party in interest in the above referenced cases. I. Procedural Background On August 30, 2012, a Fort Bend County Grand Jury indicted Relator, Brandon Jay Carter, for the offense of burglary of a habitation with intent to commit a sexual assault, a first degree felony. [Exhibit A, being a copy of the indictment] On February 17, 2015, a jury trial commenced with the selection of a petit jury, which was selected and sworn on February 18, 2015. The State rested and closed on February 25, 2015, and the jury began its deliberations. February 26, 2015, the jury reported that their differences were irreconcilable. The Court sent an Allen charge to the jury, but the jury was still unable to reach a verdict. Relator’s motion for a 1 ACCEPTED 01-15-00216-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/10/2015 4:08:16 PM CHRISTOPHER PRINE

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m itm en t Ord er an d rel eas ed Rel at o r’ s d efen s e co un s el , Dav id Ch ri s t o p h er Hes s e on a pers o n al reco g n i zan ce b on d
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en t ered an o rd er ap p o i nt i n g Harri s S. W o o d , Jr. t o defen d Rel at o r. [Ex h i b i t C, b ei n g
a co p y o f th e o rd er p ack et ] On M arch 6 , 2 0 1 5 , th i s Co urt requ es ted a res p o n se fro m th e r e a l p a rty in i n t eres t . Th e Co urt ’ s web si t e refl ect s th at th e St at e o f Tex as is a real p arty i n i n t eres t . On M arch 9 , 2 0 1 5 , a N o t i ce o f Al leg at io n s o f Co n t em p t an d Ord er Set t i n g Sh o w Cau s e H eari n g fo r M arch 2 3 , 2 0 15 was fi l ed an d p ers o n al l y s erv ed o n M arch 1 0 , 2 0 15 o n M r. Hes se. [Ex h i b i t D, b ei n g a co p y o f th e n o t ice wi th o ut att ach m en t s ] II. Th e Sta te is n o t

a r ea l p a r t y i n i nt er es t Th e cru x o f Rel at o r’ s p et i t i on fo r wri t s o f m an d am u s a n d p r o h i b i t i o n i s to rei n s tat e Dav i d Ch ri s to p h er Hes s e as Rel at o r’ s ap p o in ted att o rn ey . A l tho u gh Rel at o r
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p o rt an t l y , th e St at e b el iev es th at i t m ay b e an eth i cal v i o l at io n fo r i t s att o rn ey s to
ex p res s ano p in io ni nth i s m atter an d as a res u l t , i n al l l i k el i h oo d , i n t erfere wi thth e att o rn ey -cl i en t rel at i o ns h i p . Res p ect fu l ly s ub m i tt ed , J o hnF. Heal ey , Jr. SBOT # 0 9 3 28 3 0 0 D i s t ri c t At t o r n e y , 268th Judic ia l D istr

i c t Fo rtBen d Co un ty , Tex as / s /Gai l Ki kawa M cCo nnel l Gai l Ki k awa M cCo nn el l SBOT # 1 1 3 95 4 0 0 As s i s tan tDi stri ctAtt o rn ey 3 0 1 J ack s o nStreet , Ro o m 1 0 1 Ri ch m o n d , Tex as 7 7 4 6 9 (2 8 1 ) 2 38 -3 2 0 5/ (2 8 1 ) 2 3 8 -3 34 0 (fax ) G ai l
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I h ereb y cert ify th at a co p y o f th e fo reg o i ng St at e's res p o n s e w a s s e rv ed o n M arch 1 0 , 20 1 5 , the el ectro n i c fi l i n g m an ag er o r b y em ai l o n th e fo l lo wi n g p ers o n s : Dav idCh ri s to p h er Hes s e, Att o rn ey fo r Rel at o r Hes se@ Ho u s t on Cri m i n al Ju s t i ce.co m Harri s S. W o o d , J r., Ap p o i n t edAtt o rn ey fo r Rel at o r i n Cau s e No . 1 2 -DCR-0 6 1 1 8 6 h wo o d atty @ y ah o o . co m Ho n . Th o m as R. Cu l ver, III, Pres i d i ng Ju d g e, 2 4 0th Di s tri ctCo urt c/ o Becky .Fi s h er@ fo rtb en d co un tytx .g o v / s /Gai l Ki kawa M cCo nnel l Gai l Ki k awa M cCo nn el l

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# Exhibit A4 THE STATE OF TEXAS

VS
BRANDON JAY CARTER

D.O.B.: 04/25/1991
FELONY CHARGE: BURGLARY HABITATION INTEND SEX OFFENSE/ Fl

_____ CAUSE NO: 

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DISTRICT COURT NO 

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RELATED: DA CONTROL NO: 12-006209 Amanda Bolin 30.02 (d) 22990007

ARREST DATE: Not arrested on this charge

OFFENSE DATE: September 26, 2011 AGENCY/AGENCY NO: FORT BEND COUNTY SHERIFF'S OFFICE/ 110025389

PRIOR CAUSE NO:

CO-DEF:
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized Grand Jury of Fort Bend County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, BRANDON JAY CARTER, hereafter styled the Defendant, heretofore on or about September 26, 2011, did then and there intentionally or knowingly enter a habitation, without the effective consent of Larissa Treybig, the owner thereof, and attempted to commit or committed the felony offense of sexual assault;

AGAINST THE PEACE AND DIGNITY OF THE STATE.

12-DCR-061186 INOI Indictment 2039636 FOREMAN OF THE GRAND JURY )ICTMENT (ORIGINAL/DA) o IJJ
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# Exhibit BCOURT NO. 240th Judicial District Court DATE OF FILING



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THE STATE OF TEXAS VS BRANDON JAY CARTER

BAIL SET AT^50,000 

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ATTORNEYS DISTRICT ATTORNEY
STATE DEFENDANT

ORDERS OF COURT iSL 

# rii^o _^u j._kOtoL:pjz$8££ CAUSE NO: 12-DCR-061186 CASE TYPE FILED Adult Felony

- Filed by Indictment
OFFENSE BURGLARY HABITATION INTEND SEX OFFENSE (F1)

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# Exhibit CORDER APPOINTING COUNSEL Cause No. 12-DCR-061186

The State of Texas Vs. BRANDON JAY CARTER

Upon determination by the Court that this Defendant is indigent, HARRIS S. WOOD, JR is hereby appointed to defend BRANDON JAY CARTER.
March 02, 2015

Presiding •yj Jfff I Jucflge

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V- irict CdyrL Fc!t3?r': '-^..TXBRANDON JAY CARTER 802 Vestabend Houston, Tx 77073 Home: 281-232-6744
ORDER AND NOTICE OF COURT APPOINTED ATTORNEY Cause No. 12-DCR-061186 The State of Texas Vs. BRANDON JAY CARTER You are hereby notified that HARRIS S. WOOD, JR, whose address and telephone number appear below, is hereby appointed as your attorney. Such representation will continue until this case is disposed, and appeals are exhausted, or replaced by an attorney whom you choose to retain. Your FIRST COURT DATE is as follows: April 06, 2015 at 1:30 PM at the 240th District Court.
IMPORTANT: If the Bail Bond you received at the jail gives you a different court date than the one listed above for the bond cases, you MUST appear on the earliest date to prevent your bond from being forfeited. It is your responsibility to be present at all of your court dates. You should arrive at the Court Room at least thirty (30) minutes prior to your arraignment time to allow for parking and to meet your attorney. If you are late or do not appear, a warrant will be issued for your arrest and your bond will be forfeited. fy?i/v -&- Presidi/ii [jig Wftistr; &tive Judge HARRIS S. WOOD, JR 2190 NORTH LOO'P WEST STE 308 HOUSTON, TX 77018 281-924-5876 -M.-j~ ".SrrTi mz^f
'>'"-»m\,k<Tl&::.~:,,7j(Levy, "Raquel

From: Sent: To: Subject: Attachments:

Dear Counsel: Levy, Raquel Monday, March 02, 2015 3:55 PM 'hwoodatty@yahoo.com' FELONY APPOINTMENT - CERTIFICATE OF CONTACT CERTIFICATE OF CONTACT.doc

You have been appointed by the court to represent:

Name: Brandon Jay Carter

DOB: 04/25/1991
Address: 802 Vestabend Houston, Tx 77073

Phone: 281-232-6744 Charge: Burglary Habitation Intend Sex Offense - C#12-DCR-061186

,TH, Court Date: 4-6-15 @ 1:30 PM IN THE 240'" DISTRICT COURT Ifthe defendant has made bond, they may be reached at this address and phone otherwise they will be in the Fort Bend County Jail. As you are awareit isyour responsibility to make every reasonable effort to contact the defendantbythe end of the next workingday after today. Failure to comply with this responsibility may result in your replacement as counsel for the defendant pursuant to Art. 26.04(k) of the Code of Criminal Procedure. Please reply to this email IMMEDIATELY and acknowledge your receipt of receiving. Raquel Levy Administrative Court Services Indigent Defense Coordinator 301 Jackson St. Richmond, Tx 77469 281-341-3780 FAX #281-238-3224 Raquel.Lew(S)fortbendcountvtx.gov

2015 *- M. -X^^jtfrjtf., f>!. ffict Court, r Oft 3en^0*.,TX12-DCR-061186 ORDER Order 3454475

ORDER TO SUBSTITUTE COUNSEL

STATE OF TEXAS VS BRANDON JAY CARTER

Cause No. 12-DCR-061186 Upon determination by the Court that this defendant is indigent, ATTORNEY HARRIS S. WOOD, JR. is hereby appointed to substitute ATTORNEY CHRIS HESSE to defend BRANDON JAY CARTER.
Date: March 02, 2015

COURf ADMINISTRATION COORDINATOR

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# Exhibit DNo. 12-DCR-061186 STATE OF TEXAS § IN THE 240TH JUDICIAL VS. § DISTRICT COURT OF BRANDON JAY CARTER, § FORT BEND COUNTY, TEXAS Defendant
IN RE: DAVID CHRISTOPHER HESSE

NOTICE OF ALLEGATIONS OF CONTEMPT AND ORDER SETTING SHOW CAUSE HEARING Notice is hereby given to Respondent, David Christopher Hesse, that certain conduct by you, more fully set forth hereinbelow, is considered by this Court to be prima facie evidence of contempt of court. Attached hereto as Exhibit A, and incorporated herein, is a copy of the Reporter's Record of the Court's Judgment of Contempt and Commitment Order. Attached hereto as Exhibit B, and incorporated herein, is a copy of the Reporter's Record of the Testimony of Detective Thompson. Attached hereto as Exhibit C, and incorporated herein, is a copy of the audio recording of the trial proceedings on February 24-26, 2015. 1. Factual Allegations 1.01 Respondent is the attorney of record for the Defendant in the above-entitled 

## FILED and numbered cause. '

12-DCR-061186 NOTF Notice 3462745 

## CLERK St|TRtCT COURT v> F0RTB8H0C0-TX1.02 A jury trial commenced on February 17, 2015, with the selection of a petit jury on February 18, 2015, which was sworn that day. 1.03 On February 18, 2015, the indictment was read, and the Defendant pleaded, "Not Guilty." The State and Respondent for the defense presented opening statements, after which the State's evidence began. 1.04 On February 24, 2015, defense witness Lloyd Malpess testified by agreement of the parties out of order, before the State rested its case. 1.04 On February 24, 2015, Respondent argued with the Court's rulings. 1.05 On February 24, 2015, Respondent interrupted the Court as the Court spoke. 1.06 On February 24, 2015, Respondent pursued questioning on certain matters after being instructed not to do so. 1.07 On February 24, 2015, The Court advised Respondent outside the presence of the jury, that his conduct was contemptuous, that he would not be held in contempt for what had occurred thus far, and that he should proceed with
care and would be held in contempt if he persisted in such behavior. 1.08 On February 25, 2015, despite the Court's warnings the day before, Respondent again persisted in disrupting the proceedings of the Court during his cross-examination of the State's witness, Detective Tommy Thompson. 1.081 Respondent argued with the Court's rulings, including "I want to know more about this DeMarcus Hawthorne" [Ex A at 54]; "I have aright to confront, sir" [Ex A at 56]; "I object to being denied--" [Ex A at 80-81]; "I can put my objection, now, sir. My objection-" [Ex A at 81]; "My objection is I~" [Ex A at 81]; "My client is being denied— my client is being denied-" [Ex A at 81]; "And I want to put it on the record, sir. I want to put it on the record--" [Ex A at 81]; "I object that my client is being denied his right to confront--" [Ex A at 81]; "Every time you talk over me, sir, I'm not getting on the record. I object-" [Ex A at 82]; "I'd like to make an offer of proof now, sir" [Ex A at 82] 1.082 Respondent refused to give an estimate of how long Respondent intended to cross-examine the witness, "As long as I see fit, sir," "I don't know," "I'll determine that," "You can deal with that when it comes sir," and when the Court asked for Respondent's best estimate, Respondent twice answered, "No, sir." [Ex A at 58-62] 1.082 Respondent four times continued to pursue questioning about bad
acts or convictions of DeMarcus Cortez Hawthorne after the State's object to relevance was sustained, and the Court had instructed counsel to move on to another topic. [Ex A at 43-45, 80] 1.083 Respondenttwice continuedto pursue questioning about latent 

### prints after the State's objection was sustained, and the Court hadinstructed Respondentto move on to new material. [Ex A at 55-56] 1.084 Respondent interrupted the Court when the Court spoke: The Court: You have the usual pathway of objections— Respondent: And I want to put it on the record, sir. I want to put it on the record— The Court: And do not talk over the Judge. [Ex A at 81] 1.09 On February 25, 2015, the State rested after Det. Thompson's testimony, the defense rested, and the evidence was closed. The Court's charge was read,closing arguments were made, and the jury was retired to deliberate on guiltinnocence. The jury was allowed to separate at about 6:50 p.m. on the agreement of the parties. 1.10 On February 26, 2015, the jury resumed deliberating, but sent out a written note stating "our differences are irreconcilable." The Court prepared an Allen charge that was approved by the parties and which was sent to the jury. However, at about noon, the jury was returned to the courtroom, Defendant's motion for mistrial was granted, and the jury was discharged. 1.11 On February 26, 2015, after the jury had been discharged, the Court entered a Judgment of Contempt and Commitment Order after finding Respondent in contempt and authorizedRespondentto make a personal appearance bond

as an officer of the Court.2. Allegations of Contempt 2.01 The conduct of the Respondent, as described hereinabove, is contumacious for the reason that it significantly disrupts the orderly proceedings of the court and the proper and effective administration of justice by causing unnecessary delay and the waste of judicial resources. 3. Legal Principles 3.01 In determining whether or not the Respondent is in contempt, this Court is cognizant of and guided by the principle that the essence of contempt is not an offense against a particular judge's personal sensibilities, but is instead an affront to the authority, justice or dignity of the court, which conduct obstructs the proper and effective administration of justice. Brown v. United States, 386 U.S. 148(1958). 3.02 Contempt has been defined as an act which is reasonably calculated to impede, embarrass, or obstruct the court in the lawful discharge of its duties. Ex parte Soape, 347 S.W.2d 621 (Tex. 1961). 4. Range of Punishment 4.01 The range of punishment for contempt is a fine of not more than $500.00, or confinement in the county jail for a period of not more than six months, or by both a fine and a period of confinement.5. Assigned Judge 5.01 Pursuant to Section 21.002(d) of the Government Code, the Honorable Olen Underwood, presiding judge of this administrative region, has appointed the Honorable Michael Seiler, to determine the guilt or innocence of the Respondent. Signed March 6, 2015.
Hon. Lee Duggan^ Judge Presiding by Assignment 240th District Court Fort Bend County, TexasSHOW CA USE ORDER IT IS HEREBY ORDERED that the Respondent, David Christopher Hesse, appear before this Court at 10:00 a.m. on March 23, 2015, to show cause why he should notbe held in contempt of court and punished accordingly. NOTICE OF SHOW CAUSE ORDER IT IS FURTHER ORDERED that the Clerk of this Court shall cause a NOTICE OF SHOW CAUSE ORDER to be served on Respondent in person on March 9, 2015, upon his appearance at 10:30 a.m. in this Court as Respondent
swore he would when released on a personal recognizance bail bond. A copy of this notice and order shall also be provided to the Honorable Olen Underwood, Administrative Judge; the Honorable Michael Seiler, Presiding Judge by 

### assignment; and the Honorable Thomas Culver, Presiding Judge of the 240th
District Court. 

## Signed March 6th0,^j\
;haei Seller Judge Presiding by Assignment 240th District Court Fort Bend County, Texas