Case Information
*1 AP-77,034 FILED IN COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/16/2015 9:40:11 AM April16, 2015 Accepted 4/16/2015 9:41:50 AM ABEL ACOSTA No. AP-77,034 CLERK ABELACOSTA,CLERK IN THE COURT OF CRlMINAL APPEALS AT AUSTIN, TEXAS BRANDON DANIEL, APPELLANT
vs. THE STATE OF TEXAS, APPELLEE
THE STATE'S MOTION TO ABATE APPEAL TO THE HONORABLE JUDGES OF THE COURT OF CRlMINAL .
APPEALS:
The State of Texas, by and through the District Attorney for Travis County, respectfully moves this Court for its order abating the instant appeal
and remanding this cause to the trial court for a hearing on appellant's desire
to dismiss his counsel, proceed pro se, and waive all appeals
In support of the instant motion, the State asserts as follows: 1. Procedural Background and Relevant Facts
The State charged appellant by indictment with the capital murder of· .
Austin Police Officer Jaime Padron committed on April6, 2012. (CR 100,
118-119). A jury found appellant guilty of capital murder (CR 184), and
pursuant to the jury's answers to the special issues at punishment, the trial
~ourt sentenced appellant to death on February 28, 2014. (CR 189-190; RR
26: 221 ). Appellant timely filed a motion for new trial, which was overruled
by operation oflaw, and notice of appeal. (CR 196, 197). · The trial court
appointed attorney Ariel Payan to represent appellant on direct appeal
pursuant to appellant's desire to be represented by counsel. (CR 205; RR
26: 219).
On the same day of sentencing, the trial judge found the appellant to be indigent and that the appellant desired to have counsel appointed for the
purpose of a writ of habeas corpus pursuant to Art. 11.071, y.A.C.C.P .. (CR
192; RR 26: 220). The trial judge therefore entered an order appointing the
Office of Capital Writs and Director Brad Levenson as counsel to investigate
the case, file the appropriate writ, and fully represent appellant. (CR 192).
On January 16, 2015, Payan timely filed a brief on direct appeal on appellant's behalf. The State's brief on direct appeal is currently due on
April 20, 2015, but the State anticipates requesting additional time in which
to complete its responsive brief.
2. This Appeal Should Be Abated
On March 4, 2015, appellant filed a letter with the District Clerk's Office of Travis County. See Exhibit A, certified copy of appellant's Jetter,
attached to this motion. In the letter directed to the judge of the convicting
court, appellant expresses his desire to dismiss his direct appeal attorney, ·
Ariel Payan, dismiss the briefPayan filed on his behalf, proceed prose, and
waive all appeals. Appellant also indicates his desire to dismiss the Office
of Capital Writs and Brad Levenson on habeas review, proceed prose, and
waive habeas review. [1]
Appellate review of a death sentence is automatic and cannot be waived.
Art. 37.071(h), V.A.C.C.P. Thus, an appellant must either be represented by
counsel on direct appeal or he must proceed prose. The State submits that
this Court should abate this appeal and remand this case to the trial court for
a hearing to determine whether ( 1) the appellant understands that he cannot
waive his right to direct appeal, (2) the appellant really desires to dismiss
Payan and proceed prose, (3) the appellant has been advised of the dangers
and disadvantages of self-representation if he chooses to represent himself
on direct appeal, see e.g., Burgess v. State, 816 S.W.2d 424 (Tex.Crim.App.
1991 ), and ( 4) the appellant is competent to make these decisions, see Rees
v. Peyton, 384 U.S. 312 (1966).
On the other hand, the law does not require the filing of an application for writ of habeas corpus, and an applicant may waive his right to habeas
*4 review. Ex parte Reynoso, 257 S.W.3.d 715 (Tex.Crim.App. 2008). Since
the trial court appointed counsel to present appellant on habeas review and
the appellant now expresses his desire to dismiss counsel and waive habeas
review, the State submits that abatement and remand are necessary for the
trial court to additionally determine whether the appellant wishes to file an
application for writ of habeas corpus and, if he does not, whether he has
made this decision knowingly and voluntarily. See Reynoso, AP-74,952,
I
Order dated September 15, 2004. If the appellant does wish to pursue
habeas review, the t~ial court should determine whether appellant wishes to
dismiss his appointed counsel and proceed pro se and, if he does, whether he
has made this decision knowingly and voluntarily.
PRAYER Wherefore, the State requests that this Court abate the instant appeal and remand this cause to the trial court for a hearing on appellant's desire to
proceed pro se and waive all appeals.
Respectfully submitted, ROSEMARY LEHMBERG District Attorney Travis County, Texas Is/ Lisa Stewart Lisa Stewart Assistant District Attorney Director, Appellate Division State Bar No. 06022700 P.O. Box 1748 Austin, Texas 78767 Phone No. (512) 854-3626 Fax. No. (512) 854-4810 Lisa.Stewart@traviscountytx.gov AppellateTCDA@traviscountytx.gov CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based on the computer program used to generate this document, that this
document contains 758 words, excluding words contained in those parts of
the document that Rule 9.4(i) exempts from inclusion in the word count.
Is/ Lisa Stewart Lisa Stewart Assistant District Attorney *6 CERTIFICATE OF SERVICE I hereby certify that, on this 15th day of April, 2015, a copy ofthe foregoing motion was sent, via U.S. mail, email, facsimile, or electronically
through the electronic filing manager, to the following attorneys for the
appellant:
Ariel Payan
1 012 Rio Grande
Austin, Texas 78701
Fax: 512-472-4102
ArielPayan@hotmai l.com
Brad Levenson
Office of Capital Writs
Stephen F. Austin Building
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
Fax: 512-463-8590
Brad .Levenson@OCW. Texas.gov
Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Lisa.McMinn@spa.texas.gov
Is/ Lisa Stewart . Lisa Stewart Assistant District Attorney *7 EXHIBIT A
.. . ~- February 25, 2015
Judge Brenda Kennedy
403rd District Court
P.O. Box 1748
Austin, TX 78767
Re: Brandon Daniel v. State of Texas; 12-201718
Dear Judge Kennedy:
I was sentenced to death in your court last February for the murder of an Austin police officer in 2012. After long and
careful consideration of all of my options I have decided to
respect~~lly request to waive any and all of my appeals immed
iately. The reasons for my decision include, but are not limited
to: the fact that I want justice to be served and I feel that the
punishment is appropriate for my crime; we are both interested
' in saving the taxpayer's money, the time of all involved and in
sparing my family and the victim's family any more angst than
necessary; and, finally, r··would like to limit my time in prison
to the least amount possible.
I understand that this means that I forfeit any possibility of rece1v1ng a sentence that is lesser in the eyes of the law.
I am competent and will submit to any exams that the court
requires. I am also completely informed of the situation and the
effects of my decision due to my lawyer, Brad D. Levenson of the
Office of Capital Writs (OCW), who has consistently tried to
dissuade me. Although the entire OCW has been very helpful
throughout the process, I would also like to dismiss the OCW and
represent myself pro se for the remainder of the case in order
to avoid any conflicts of interest.
My direct appellate counsel, Ariel Payan, filed an appeal against my wishes despite confirming that he received my letter (~_;_,_~_:.~~£:.·
-: : ..... ·;:.,·1 ... •::·. ··. :o.c··· . · , - - - - - - - - - - - - - - - - - · · · · - - - · - - · - •<>•··········-------- "- .. ------·-··- - - - - - - · · - - · .. ·-- ,. ___ ............ -·-. - --· .............. · · - - - - - - - - - · " *9 •
asking him not to file the appeal, stating that the dir~ct appeal
is mandatory although there are several cases on death row of a
direct appeal being waived. I would also like to dismiss Ariel
Payan and represent myself pro se in any and all litigation and
I request that my waiver of my appeals supersede the direct appeal
that was filed on my behalf.
Thank you for your consideration.
Brandon Daniel TDCJ #999589 Polunsky Unit 3872 FM 350 South Livingston, Texas 77351 ~----- ------·· "·--·--·-"·--·· -···--·--- -··-··----··--
*10 !
Brandon Daniel
Polunsky Unit, #999589 NORTH HOUSTON TX. 3872 FM 350 South 05 NAR 20·15· PM.~ t
Livingston, Texas 77351 Judge Brenda Kennedy 403rd District Court P.O. Box 1748 Austin, TX 78767 I LEGAL MAIL I I I ·"·1'111' II' Jl••lum'' '' •II• 'uJ.I• • '''"IIII''''i/1,, '1111'1/ ..
~
[1] Additionally, in a letter dated March 26, 2015, and addressed to Travis County District Attorney Rosemary Lehmberg, appellant expressed his desire to waive his appeals and sought the District Attorney's help "to expedite the situation."