Evan Stuart Fairbanks v. State ( 2015 )

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
Will. 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
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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