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Home » 2018-03-06 Republican primary » Texas » Court of Criminal Appeals Justice - Place 8 » Jay Brandon

Jay Brandon
Party Republican
Born Dallas
Education BA UT Austin; JD UH
Occupation ADA-Appeals, Bexar County
Religion Church of Nazarene
Children 3

Jay Brandon


From Mr. Brandon's website:

"A trial in a criminal case should be straightforward: the State charges someone with a crime and puts on evidence to prove his guilt.  Criminal appeals can be more complicated, such as when a court interprets a new statute for the first time.  Opinions in criminal appeals are guides for trial lawyers all over Texas to follow.  So opinions should be clear, concise, and well-reasoned.  Having worked in criminal appeals for thirty years, I have the experience and the skills to write such opinions.  I began my legal career at the Court of Criminal Appeals, working for two different judges doing research and writing.  I have since worked on hundreds of criminal appeals, on both sides, but primarily representing the State.  I have written many briefs and presented oral arguments to the Court of Criminal Appeals and other appellate courts.  I have also written and argued writs, a more complicated type of appeal, in death penalty cases.  The Court of Criminal Appeals has exclusive jurisdiction over death penalty cases in Texas.
         Appellate judges have the responsibility of interpreting the law, not making it.  I have more experience than any other candidate in doing exactly the type of work the judges of that Court do.  As the author of many published novels, I also have the writing skills to write those clear, well-reasoned opinions the trial courts of Texas need to make sure cases are tried properly.  Finally, I have the judicial philosophy needed on the highest criminal court in Texas.

My first job out of law school was at the Court of Criminal Appeals.  Instead of the usual one-year term I spent a year and a half, starting early for one judge, then working for another judge as he finished out his last term.  I thought it was the greatest place in the world, and I got the best possible education in criminal law, where the law is interpreted at the highest level.  From there I went to Bexar County and became a prosecutor, then a staff attorney at the Fourth Court of Appeals, years in private practice, then back into the District Attorney's Office.  I have spoken at many criminal law seminars and argued hundreds of criminal appeals, including at the highest court.  It's time to return.
   Along the way I built a family, raised three children, and wrote and published a lot of books.  I was born in Dallas, grew up in San Antonio, went to college in Austin, law school in Houston, and worked again in Austin before returning in San Antonio.  And my son went to Texas Tech, where I visited him often, so I have seen miles and miles of Texas and enjoyed it all.



Campaign Finance Reports Source

Submitted by john wertz on 2018-03-15 18:46:09

    2017                           2018


   Jul - Dec                 30 Day Report     8 Day Report


MCTP PAC Rating of: 86 Source

Submitted by john wertz on 2018-01-27 14:15:54



  • Christian Conservative w/job experience in all facets...... except as a judge. 
  • Board certified in criminal appellate and family law
  • From our attorneys on the committee - "Extremely experienced for this position--seemingly far more than the other two who are running.  Most extensive experience with writs (CCA bread & butter) & appeals.  Therefore, he is the most qualified for the position". 
  • Appears to understand Constitutional issues and appears willing to follow the constitution and stand up for our rights
  • On asset forfeiture, stated that assets should “only be seized permanently … after a conviction.”
  • Experience with death penalty cases
  • "The Constitution takes precedence.... if an older case is wrong, I think it is important to say so.” (He provided an interesting sampling of his recent high court cases).


  • Conservative w/job experience in all facets except...  More

Video Interview Source

Submitted by john wertz on 2018-01-16 06:15:28




Please describe the qualifications and experience that make you the best candidate for the office you are seeking.

I have worked at this court for two different judges, so I know how the court works.  For ten years I was appointed by the court to an advisory panel to advise the court on changes to the rules of evidence and Rules of Appellate Procedure as they apply to criminal cases, a panel composed of one prosecutor, one defense lawyer, one trial judge, one court of appeals court judge, and two law school deans.  Currenly I am in the appeals section of the Bexar County District Attorney's Office, where I have represented the State in hundreds of criminal appeals.  Before that I was in private practice, so I have experience on both sides of the bar.  The Court of Criminal Appeals has discretionary review authority, so it accepts only a small percentage of the cases it's asked to review.  I have had many petitions for review granted, and argued and filed briefs at that court in many cases.  The Court also has exclusive jurisdiction over death penalty cases, and I have worked on quite a few of those.  The Court has exclusive jurisdiction over writs, a fairly complicated post-conviction procedure with which few lawyers are familiar.  As the first chief of the Conviction Intgegrity Unit in the Bexar County District Attorney's Office, I spent two years reviewing every writ filed in this county, so I am very familiar with writs.  I also wrote and filed writs in private practice, including in death penalty cases.  I have much, much more of the exact type of experience needed for a judge of this Court.

Do you think judges should be elected by the people, or appointed by a commission?

I still believe judges should be chosen by the people they serve.  It would be nice if there were more organizations that addressed the qualifications of judicial candidates in order to inform voters.  Most voters know very little about judicial candidates, and don't have many good ways of learning their qualifications.

What differentiates you from your opponents?

Experience is what differentiates me from my opponents.  From my search of the records, one of them has done very few criminal appeals and the other has done none.  That just isn't acceptable for a judge of the Court of Criminal Appeals.  I am the only one with experience in death penalty cases and writs, two procedures over which this Court has exclusive jurisdiction.  I am not a judge, I am a working appellate lawyer.  When a judge wants to know the law applying to a particular cases, he or she says to the parties, "Bring me some law on this."  I'm the person who does that, looks up the law (if I don't already know it) and writes the brief or memorandum.  This is almost exactly what a judge of the Court of Criminal Appeals does, so I have exactly the experience needed for that Court.

Please describe the changes you will make to improve the efficiency of your court, yet remain thoughful about rulings/orders - that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be “in session.”

The Court of Criminal Appeals takes a summer recess, from approximately mid-June to mid-September, when the Court issues no opinions or very few.  This mirrors the Supreme Court of the United States, which takes a similar recess.  This tradition comes from a time before air conditioning, when summers were fairly unbearable in both Austin and Washington.  That is no longer the case.  Given the workload of the Court of Criminal Appeals, I see no reason for continuing this tradition.  I would work year-round, as I have for years.  Other than that, the Court very efficiently handles its caseload.  I would improve the efficiency just by my presence.  I have always done more work, written more briefs, reviewed more cases, than anyone else I know.  The Court has to deal with thousands of writs a year, but I don't think that process can be streamlined.  Very few of these writs, most filed by inmates without the aid of lawyers, have any merit, but the Court has to find the few that do.  Since I have a great deal of experience with writs, I can help with that.

Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.

They are living documents in that they can be amended, as we recently voted to do in Texas (although the U.S. constitution hasn't been amended since 1972.)  But they are not otherwise subject to change, certainly not by judges.  An appellate court judge has nothing to do with changing the Texas constitution or laws, although opinions may suggest such changes (which should only rarely be done) and the legislature may choose to act on that suggestion or not.  But an appellate judge is only to determine the intent of the original document, not to change it.  If a constitution is to evolve, it should be by the will of a majority of citizens.

Please describe what you believe are the most significant issues in this race, why and what you'll do to address them?

The main issue in this race is experience.  We're all conservative, so the issue remains of which of us could do this job most effectively.  I've essentially already done this job, having worked at the court doing research and writing drafts of opinions.  I also have much more experience in criminal appeals, post-conviction writs, and death penalty cases than any other potential candidate.  I would begin work immediately on the Court to continue and improve if possible its efficiency as the highest criminal court in Texas

What Texas State court decision do you think has most impacted society? How and Why?

In Texas, this well may be some Texas Supreme Court decision about water rights, which are so important in Texas, but I wouldn't know about those.  In my realm, criminal law, there are fewer decisions that have an effect on all of society, such as many U.S. Supreme Court decisions.  There is one case from recent years, in which I represented the State, that will have consequences for society whether people know about it or not.  In Ford v. State the defendant was accused of murdering his ex-girlfriend (and her dog).  They had broken up but still socialized in the same circles, so they were at a New Year's Eve party together.  The defendant got mad for some reason and left early.  He claimed he went home and to bed, being asleep before midnight.  But someone broke into the woman's condo, strangled her, killed her dog, and threw the dog's body into a nearby wooded area.  There was no attempt at robbery or sexual assault.  Defendant became a suspect because his DNA was on a towel covering the victim's face.  There was no reason for his DNA to be there since they had broken up months earlier and she watched her towels weekly.  But that wasn't enough to convict.  There was a grainy footage from a security camera across the street showing a car like Defendant's going by more than once, and the figure of a man dressed as Defendant had been that evening going into the condo complex.  Again, not enough for conviction; the images weren't sharp enough.  But the prosecution obtained the defendant's cell phone records using a new statute that allows such records to be obtained with a court order showing the records are "reasonably related to a crime," something less than the probable cause required for a warrant.  These records only showed location data, not the contents of the cell phone.  They showed while he claimed to be home asleep, his phone was at different locations in the small area around the party, his home, and the condo.  He was convicted on that basis.  On appeal, in two oral arguments including at the Court of Criminal Appeals, I successfully defended the state's use of this statute.  The opinion was unanimous.  This wasn't an undue invasion of the defendant's privacy because he had agreed his carrier could maintain those records, and no one forced him to carry his cell phone with him.  And this led to a conviction for a murder that otherwise would have gone unsolved.  The effects are wide-ranging.  Criminals' movements can be traced if they carry cell phone, which almost everyone does.

As a judge, what do you believe the goals of the criminal justice system should be?

As a judge on the Court of Criminal Appeals, my goal would be to ensure fair trials in criminal cases in Texas, to review significant cases of statewide importance, and to issue clearly-written opinions that tell trial courts exactly how to ensure trials are fair, which errors are signficant enough to require reversal, and which are not.  The goals would also be to fairly and closely review cases in which death penalties have been assessed, and post-conviction writs, especially those claiming an innocent person is wrongfully imprisoned.

Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?

I have been practicing criminal law in Texas for thirty years, and I've never heard of a defendant challenging the array of a grand jury or an individual grand juror while the grand jury is deliberating.  Occasionally a defendant will challenge the array of a grand jury after it has indicted him or after he has been convicted, but I have never known of such a challenge being successful in Texas, certainly not in the modern era.  There is very little practical application of this statute currently.

Who or which class of Texan does the Code of Criminal procedure 20.09. have in mind when it mentions "any Credible Person". How does the particular class invoke initiation of a Grand Jury investigation? CCP Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.

The phrase "any Credible Person" means what it says.  The grand jury could determine who is credible.  The statute gives no other procedure for this. Opinions have held that the grand jury may investigate any crime in its own county that is brought to the grand jury's attention.  Almost universally grand juries only hear cases that are brought to them by district attorneys' offices, but the statute does not limit them to that.  Grand juries are usually in session, at least in the more populous counties, and any citizen of Texas should have the right to address the grand jury and present evidence of a crime.  The grand jury then chooses to act by issuing an indictment or not.  This is designed to protect the rights of Texas citizens so they are not limited by what a particular district attorney chooses to do or to ignore.

5th Amendment- due process

CSPOA says "Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds." How should these Civil Forfieture issues be addressed?

Many of these civil forfeitures happen with rather short notice to the defendant.  That should be lengthened.  Defendants should be warned that their property is subject to seizure.  I don't believe these laws encourage law enforcement to favor pursuit of property over the pursuit of justice; they pursue both.  One solution would be, instead of making this a dual-track system so the defendant has to pursue two legal defenses, say property can only be seized permanently by the government after a conviction.  That would ensure only the guilty have their property taken.  But that would require action by the legislature, not the courts.


Is there anything in your background of an embarrassing nature that should be explained before your election? Arrests/Convictions? Bankruptcys?

No, nothing.

How will you improve the transparency and access to financial and other records for the public?

I will make my own financial records accessible.

Please list Civic, Political or union organization or individuals to whom you have contributed (five years).

My giving is mostly to charitable and service organizations, particularly the Salvation Army.  I grew up in the Salvation Army (not many people know it's a church as well as a service organization) before my family switched to the Church of the Nazarene when I was a teenager.  But I remain very impressed by the dedication of Salvation Army officers (including some of my relatives.)  It does great work, not only after disasters but ongoing, for the homeless and unwed pregnant women.  Consistently, a higher percentage reaches the people who need it if you give to the Salvation Army than any other organization.  So that's where I give.

What standards of behavior would you impose on yourself—inside and outside the courtroom?

I would continue to live by the same standards I always do.  As a lawyer, probably the first virtue is honesty.  A lawyer has a duty of honesty to the courts, the clients, and opposing counsel.  As a judge I would always be honest about the record and the law.  I also admire civility, practice it now and would continue to do so.  I have seen judges who use their positions to demean or abuse the lawyers in front of them and others, and I find that reprehensible.  I would never do it.


Among the nine justices on the U.S. Supreme Court(SCOTUS), which one do you respect the most, and why? Which one do you respect the least, and why? What judicial philosophy should a SCOTUS Justice have?

I respect all the current justices, but probably Chief Justice Roberts the most.  I think he tries to strike a balance, he tries very hard to keep the justices civil and talking to each other to reach consensus as often as possible.  I think he also has a balanced approach in his opinions.  I've talked about my judicial philosophy above.  It's important to know the law and be able to interpret it, and also important on a multi-judge court to listen to others.  As for SCOTUS, since they have the highest responsibility in the law, and their opinions can have such significant effects, they have the highest duty to interpret the constitution as it was written, and not shade it with their own personal opinions of what the law should be.

To what extent do you believe the state or federal government should be able to obtain court orders directing parents to do things for their children that the parent does not believe should be done?

Some of the appeals I handle in the Bexar County District Attorney's Office are of parental termination cases, so I see the worst cases of parental neglect and abuse.  But there are many, many more good parents.  Government should have very little intrusion into their lives and their relationships with their children.  The government should be able to intervene only if the child's life or health is threatened by parental action or inaction.

What carries the greatest influence on your ruling: case law, the Constitution, or other?

The Constitution carries the greatest influence on the positions I take.  In briefs and opinions, case law is important too, but it was written by other judges.  It's subject to change.  Stare decisis is important for stability in the law, but if an older case is wrong, I think it's important to say so.  But the Constitution is the touchstone.  Statutes are important too, because they come from the branch of government responsible for writing them.  A judge should only interpret constitutional and statuory law, usually in accordance with precedent, but not change them.

Please explain your view of recidivism and how it affects the sentences you give.

The judges of the Court of Criminal Appeals don't hand down sentences, they only review convictions and sentences by other judges.  Sentences should encourage rehabilitation if possible, particularly for younger offenders who have committed lesser offenes.  Unfortunately, we have a small percentage of the population who have proven by the repetition of their unlawful behavior or the terrible nature of an individual crime that they just need to be kept away from lawful society.

What role should government have in reforming criminals?

The Court of Criminal Appeals doesn't address this issue.  But I have seen criminals honestly reform themselves, particularly during the two years I started and ran the Conviction Integrity Unit of the Bexar County District Attorney's Office.  I know of one case in particular where a man came out of prison (after a lot of years) a sincere Christian who had educated himself and learned as many skills as he could.  Government should continue to make those programs available, educational and counseling and religious programs, so that inmates who want to can take advantage of them.  The government can't reform a criminal, but the person can reform himself if the opportunities are provided.

What is the job of a judge?   What is your judicial philosophy?

A judge's job is to interpret the law.  A judge should remain impartial, even after evidence shows someone committed a heinous crime.  It's a judge's job to issue an appropriate sentence, but not to exact revenge.  A judge should be honest about the record in a given case, and honest as well about the state of the law: what it is, not what the individual judge thinks it should be.  The Court of Criminal Appeals is the highest criminal court in Texas, usually the court of last resort for defendants and prosecutors.  I would take that responsibility very seriously, reviewing cases with that in mind, that there will seldom be a further review after it passes out of my hands.  I have spent a lot of years trying to determine what the law is and writing accordingly, even when arguing a position.  As a judge, I would review cases and interpret the law honestly, with the knowledge that most trials, the great majority, were fair enough to have produced a just result, but also with the knowledge that mistakes are made.  At the Court of Criminal Appeals, if there have been such mistakes, I would find them and correct them where necessary.