Christopher Alexander Vujovich v. State

ACCEPTED
06-14-00143-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/19/2015 9:30:48 AM
DEBBIE AUTREY
CLERK

CAUSE NO. 06-14-00143-CR

IN THE SIXTH COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
TEXARKANA, TEXAS
2/19/2015 9:30:48 AM
DEBBIE AUTREY
________________________________________________________________
Clerk

CHRISTOPHER VUJOVICH
Appellant

VS.

THE STATE OF TEXAS
Appellee
________________________________________________________________

On Appeal from Cause No. 2013F00484 in the
5th Judicial District Court of Cass County, Texas
________________________________________________________________

BRIEF OF APPELLEE
________________________________________________________________

Respectfully submitted,

Courtney H. Shelton
Cass Co. Asst. Criminal District Attorney
Texas Bar No. 24043354
Post Office Box 839
Linden, Texas 75563
Telephone: 903.756.7541
Facsimile: 903.756.3210

Attorney for Appellee,
The State of Texas

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas Rules of Appellate Procedure Rule 38.1(a), the

following list is a complete list of all parties to the trial court’s judgment and the

names and addresses of all trial and appellate counsel:

1. Hon. Donald Dowd - Judge, County Court at Law, Sitting for the 5th
Judicial District Court, Cass County, Texas

2. Christopher Vujovich - Appellant

3. Mr. Edwin E. Buckner - Appellant’s trial & appellate counsel
P.O. Box 629
Linden, Texas 75563

4. Mrs. Courtney H. Shelton - Appellee’s trial & appellate counsel
Cass County Assistant District Attorney
Post Office Box 839
Linden, Texas 75563

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 TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-22

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23-25

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-36

Issue 1: The evidence introduced at trial was legally sufficient to
establish that Appellant was intoxicated at the time he
operated a motor vehicle, thereby supporting the jury’s guilty
verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Issue 2: Appellant expressly consented to a blood draw, therefore, the
Court was proper in denying Appellant’s Motion to Suppress
the blood draw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Issue 3: The jury may be informed of an Appellant’s stipulations to two
prior DWI convictions, as proof of those priors is a
jurisdictional element of the offense . . . . . . . . . . . . . . . . . . . 32

Issue 4: Appellant failed to argue any basis for the admissibility of the
excluded “interpretation of diagnosis,” therefore, he has not
preserved this issue for review . . . . . . . . . . . . . . . . . . . . . . . 34

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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 INDEX OF AUTHORITIES

CASES PAGE

Acosta v. State,
429 S.W.3d 621 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . 23, 26

Adames v. State,
353 S.W.3d 854 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Barfield v. State,
63 S.W.3d 446 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . 24, 34

Basham v. State,
608 S.W.2d 677 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . 24, 34-35

Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . 23, 26

Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Farmer v. State,
411 S.W.3d 901 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . 26-27

Frierson v. State,
839 S.W.2d 841 (Tex. App.—Dallas 1992, pet ref’d.) . . . . . . . . . . . . . . . 30

Fuller v. State,
827 S.W.2d 919 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 32

Hollen v. State,
117 S.W.3d 798 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . 24, 33-34

Jackson v. Virginia,
443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

Johnson v. State,
68 S.W.3d 644 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . 23, 29-30

Johnson v. State,
414 S.W.3d 184 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . 23, 30
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Lackey v. State,
638 S.W.2d 439 (Tex. Crim. App 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Martinez v. State,
348 S.W.3d 919 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . 23, 29-30

Maxwell v. State,
73 S.W.3d 278 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ray v. State,
178 S.W.3d 833 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 35

Reasor v. State,
12 S.W.3d 813 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . 23, 30

Reyna v. State,
168 S.W.3d 173 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . 25, 35

Rodriguez v. State,
749 S.W.2d 576 (Tex. App.—Corpus Christi 1988, pet ref’d) . . . . . . . . . 35

Schneckloth v. Bustamonte,
412 U.S.218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

State v. Ross,
32 S.W.3d 853 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

State v. $ 217,590.00 in United States Currency,
18 S.W.3d 631 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24, 30

Tamez v. State,
11 S.W.3d 198 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . 24, 34

Willover v. State,
70 S.W.3d 841 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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STATUTES

TEX. PEN. CODE § 49.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34-35

TEX. R. APP. P. 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35

TEX R. EVID. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34-35

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 CAUSE NO. 06-14-00143-CR

IN THE SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

________________________________________________________________

CHRISTOPHER VUJOVICH
Appellant

VS.

THE STATE OF TEXAS
Appellee
________________________________________________________________

On Appeal from Cause No. 2013F00484 in the
5th Judicial District Court of Cass County, Texas
________________________________________________________________

BRIEF OF APPELLEE

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

COMES NOW THE STATE OF TEXAS, Appellee in the above-entitled and

numbered cause, and submits this brief of authorities and arguments, and in

support thereof Appellee would respectfully show the Court as follows:

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 STATEMENT OF THE CASE

Appellant, Christopher Vujovich, was charged by Indictment with the third

degree felony offense of Driving While Intoxicated – Subsequent Offense that

occurred on or about August 14, 2012. (C.R. pg. 5).

Prior to trial on the merits, Appellant filed a Motion to Suppress the Blood

Analysis, arguing that any consent provided by Appellant “was ineffective and

invalid due to the intoxication of Defendant at the time of said alleged consent.”

(C.R. pgs. 31-35). A hearing was held on Appellant’s Motion to Suppress on July

28, 2014. (R.R. Vol. 2, pgs. 15-46). The Court found by clear and convincing

evidence based on a totality of the circumstances that “there was actual consent

to the blood draw,” and subsequently denied Appellant’s Motion to Suppress.

(R.R. Vol. 2, pg.46).

A trial on the merits commenced on or about July 29, 2014, in the 5th

Judicial District Court of Cass County, Texas. A jury was selected, empaneled

and sworn. (R.R. Vol. 3, pgs. 9-91). Appellant was arraigned in the presence of

the jury and entered a plea of “not guilty.” (R.R. Vol. 3, pgs. 95-96). The State

presented its case-in-chief and rested on July 29, 2014. (R.R. Vol.3. pgs. 100-

192). The defense presented its case-in-chief and rested and closed on July 30,

2014. (R.R. Vol. 4, pgs. 6-53). The Court’s charge was read to the jury on July

30, 2014. (R.R. Vol.4, pgs. 56-63). Closing arguments were presented by both

the State and the defense, after which the jury retired to deliberate. (R.R. Vol. 4,

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pgs. 63-76). The jury returned after 38 minutes of deliberation with a “guilty”

verdict. (R.R. Vol. 4, pg. 77).

Appellant had previously elected for the judge to assess punishment in the

event of conviction. (C.R. pg. 40). On July 30, 2014, the State and the defense

both presented punishment evidence and arguments to the Court. (R.R. Vol. 4,

pgs. 80-180). After presentation of all the evidence and closing arguments,

Judge Donald Dowd pronounced sentence at four (4) years confinement in the

Institutional Division of the Texas Department of Criminal Justice. (R.R. Vol. 4,

pgs. 180-185).

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 STATEMENT OF ORAL ARGUMENT

Oral argument may assist the Court in determining why the trial court did

not abuse its discretion in admitting the blood analysis and excluding Dr. Gregory

Atchison’s report.

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 ISSUES PRESENTED

Issue 1: The evidence introduced at trial was legally sufficient to establish
that Appellant was intoxicated at the time he operated a motor
vehicle, thereby supporting the jury’s guilty verdict.

Issue 2: Appellant expressly consented to a blood draw, therefore, the trial
court did not abuse its discretion in denying Appellant’s Motion to
Suppress Blood Analysis.

Issue 3: The jury may be informed of an Appellant’s stipulations to two prior
DWI convictions, as proof of those priors is a jurisdictional element
of the offense.

Issue 4: Appellant failed to argue any basis for the admissibility of the
excluded “interpretation of diagnosis,” therefore, he has not
preserved this issue for review.

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 STATEMENT OF THE FACTS

In December 2013, a Cass County grand jury returned an indictment

charging Appellant with Driving While Intoxicated – Subsequent Offense. (C.R.

pg. 5). See TEX. PEN. CODE § 49.04.

At a pretrial hearing on Appellant’s Motion to Suppress, Trooper Wayne

Johnson testified that he was called to assist Trooper Eric White with a possible

intoxication investigation. (R.R. Vol. 2, pg. 19). Johnson responded to Atlanta

Memorial Hospital and met with the subject, later identified as Appellant, involved

in the crash. (R.R. Vol. 2, pg. 19). Johnson and Appellant conversed about

where Appellant was travelling, how the crash occurred, and what medications

he had taken. (R.R. Vol. 2, pgs. 22-23). Johnson then commenced field sobriety

testing. (R.R. Vol. 2, pgs. 23-29). Appellant was again questioned about any

medications he had taken, and Appellant admitted to taking Ambien, Wellbutrin,

and Lexapro. (R.R. Vol. 2, pg. 29). Johnson explained to Appellant that

medications could cause a person to become intoxicated, to which Appellant

agreed. (R.R. Vol. 2, pg. 29-30). At that point, Johnson advised Appellant of his

DIC-24 Statutory Warning and requested a sample of his blood. (R.R. Vol. 2, pg.

30). Initially, Appellant stated he would give a urine sample. (R.R. Vol. 2, pg.

31). Johnson advised he was asking for a blood sample, and Appellant stated he

would give a blood sample. (R.R. Vol. 2, pg. 31). Furthermore, Appellant was

given a consent form, which was explained to him, and which he signed,

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consenting to give a blood sample. (R.R. Vol. 2, pg. 31, State’s Exhibit 1). At no

point did Appellant withdraw consent, and there was no resistance from

Appellant. (R.R. Vol. 2, pg. 32). Appellant testified that he remembered taking a

blood test, but he did not remember signing for anything. (R.R. Vol. 2, pg. 42).

The Court found by clear and convincing evidence based on a totality of the

circumstances that “there was actual consent to the blood draw in this case, that

was positive and unequivocal and obtained without duress or collusion, actual or

implied,” and subsequently denied Appellant’s Motion to Suppress. (R.R. Vol. 2,

pg.46).

On July 29, 2014, the State arraigned Appellant in the presence of the jury,

which included reading that Appellant had been previously convicted on two

occasions of offenses relating to the operating of a motor vehicle while

intoxicated. (R.R. Vol. 3, pgs. 95-96).

Joseph Melder testified that on August 14, 2012, between 6:00 and 6:20

a.m., he was headed to International Paper, via FM 3129 from Highway 77

South. (R.R. Vol. 3, pgs 102-103). A two-door, dark colored car turned onto FM

3129 in front of Melder, heading northbound towards Bloomburg. (R.R. Vol. 3,

pgs. 103-104). The car swerved a couple of times, and then veered off the road

to the left down into a creek. (R.R. Vol. 3, pg. 104). Melder called 911. (R.R.

Vol. 3, pg. 105). Another motorist arrived who agreed to stay with Appellant, and

Melder went on to work. (R.R. Vol. 3, pg. 105).

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 Trooper Eric White testified that on August 14, 2012, he was employed as

a trooper with the Texas Department of Public Safety. (R.R. Vol. 3, pg. 110). At

6:04 a.m., he was dispatched to a car crash on FM 3129, near County Road

4795, south of Bloomburg. (R.R. Vol. 3, pgs. 110-111). Upon arrival,

Christopher Alexander Vujovich, Appellant, identified himself as the driver of the

vehicle. (R.R. Vol. 3, pg. 114). Appellant first advised Trooper White that he was

headed to school at Texas A&M University in Texarkana. (R.R. Vol. 3, pg. 112).

He later told Trooper White that he was headed to Caver Construction, which

was located just south of the Butler’s Inn on Highway 59 in Atlanta. (R.R. Vol. 3,

pg. 113). Either way, Trooper White testified, based on the fact that Appellant

lived on Highway 43 in Atlanta, there was no reason for Appellant to be on FM

3129. (R.R. Vol. 3, pgs. 112-113). It was not on either route. (R.R. Vol. 3, pgs.

112-113). When questioned about the events leading to the crash, Appellant

stated there was a lot of traffic and “cars were jockeying for position.” (R.R. Vol.

3, pg. 115). Trooper White noted there was not much traffic on the road at this

time. (R.R. Vol. 3, pg. 115). Appellant then stated he veered off the road and

had the wreck. (R.R. Vol. 3, pg. 116). Trooper White observed that Appellant

tended to lean or sit on the guardrail, as he was having trouble maintaining his

balance. (R.R. Vol. 3, pg. 116). Appellant had a small burn on the bottom of his

chin, an injury common from airbag deployment. (R.R. Vol. 3, pg. 116). On

cross examination, Trooper White testified that Appellant was not wearing his

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seatbelt and, upon impact, his head imprinted the windshield above the steering

wheel. (R.R. Vol. 3, pg. 131). Appellant advised Trooper White he had not been

drinking, but he had taken Lithium and an antidepressant. (R.R. Vol. 3, pg. 117).

Due to his lack of coordination and slurred speech, Trooper White was

concerned Appellant may have been intoxicated on something other than

alcohol. (R.R. Vol. 3, pg. 117). Lifenet EMS arrived and carried Appellant to the

hospital. (R.R. Vol. 3, pg. 117). Trooper White requested Trooper Wayne

Johnson to report to the hospital to observe the driver, perform field sobriety

tests, and make sure the driver did not leave the hospital prior to their arrival.

(R.R. Vol. 3, pgs. 121-122). Trooper White arrived at the conclusion of the

reading of Appellant’s statutory warnings, in time to hear Appellant consent to a

blood draw. (R.R. Vol. 3, pg. 122). After Appellant’s blood was drawn, Trooper

White transported Appellant to the Cass County jail and read him the Miranda

warnings. (R.R. Vol. 3, pgs. 126-127). Trooper White then interviewed

Appellant. (R.R. Vol. 3, pgs. 127-128). Appellant admitted to operating a

vehicle. (R.R. Vol. 3, pg. 127). Appellant stated he was taking Wellbutrin and “a

little pink pill for sleep.” (R.R. Vol. 3, pg. 128). He stated the last time he took

those medicines was last night. (R.R. Vol. 3, pg. 128).

Michelle Melo testified that she is a forensic scientist with the DPS Crime

Lab in Austin. (R.R. Vol. 3, pg. 141). Melo was certified to testify as an expert

on the effects of drugs and alcohol on the body and as to the presence of drugs

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in blood. (R.R. Vol. 3, pg. 141). Melo testified that she received a blood kit from

Trooper White on September 11, 2012. (R.R. Vol. 3, pg. 141). She testified that

Sarah Martin did the initial analysis of the blood, which all of the samples go

through upon receipt at the laboratory. (R.R. Vol. 3, pg. 145). The initial

screening process helps narrow down what confirmations they will do, by

analyzing for seven drug classes. (R.R. Vol. 3, pg. 145). The initial screening

came back negative. (R.R. Vol. 3, pg. 147). The blood was then given to Melo

for further testing, based on the officer’s suspected drugs. (R.R. Vol. 3, pg. 147).

That analysis is performed using liquid chromatography mass spectrometry.

(R.R. Vol. 3, pg. 147). The test detected citalopram, hydroxyzine, and zolpidem

in the blood sample, with no quantitation performed. (R.R. Vol. 3, pg. 149). Melo

testified that all of these drugs are of the type that could potentially affect a

person within therapeutic levels. (R.R. Vol. 3, pg. 150). Citalopram is an

antidepressant with side effects such as drowsiness and sleepiness, but also

insomnia. (R.R. Vol. 3, pg. 150). Hydroxyzine can be used to treat anxiety,

which can cause drowsiness. (R.R. Vol. 3, pg. 150). Zolpidem is prescribed

solely to make a person fall asleep and stay asleep. (R.R. Vol. 3, pgs. 150-151).

Melo testified that taking all three of these pills together can enhance each drug’s

cumulative effect. (R.R. Vol. 3, pg. 151).

On cross examination, Appellant clarified that Zolpidem is Ambien, which

is a prescription medication that physicians use for insomnia in a patient. (R.R.

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Vol. 3, pg. 152). Melo explained the difference between immediate release,

when all the contents in a pill are released at once, versus controlled release,

when the pill dissolves slower so the chemicals will stay in your system longer.

(R.R. Vol. 3, pgs. 152-153). Melo testified that indications on the controlled

release label say you should not do anything that requires use of your normal

faculties the next day. (R.R. Vol. 3, pg. 153). Controlled release Ambien can

impair a person’s mental alertness the following day. (R.R. Vol. 3, pg. 154).

Melo described “sleepwalking,” with regards to people using Ambien, when

people will do things throughout the night that they have no recollection of the

next morning, such as walking, eating, and talking. (R.R. Vol. 3, pg. 156). She

said there have been reported cases of sleep driving as well, among a small

percentage of Ambien takers. (R.R. Vol. 3, pg. 157).

Trooper Wayne Johnson testified that on August 14, 2012 he was

employed as a trooper with the Texas Department of Public Safety. (R.R. Vol. 3,

pg. 168). Johnson received a request from Trooper Eric White to respond to

Atlanta Memorial Hospital to visit with the driver from the crash and investigate

for possible intoxication. (R.R. Vol. 3, pgs. 168-169). Johnson arrived at the

hospital and began to question Appellant about events leading up to the crash.

(R.R. Vol. 3, pgs. 169-170). Johnson inquired about any medications Appellant

had taken, and Appellant advised he had not had any. (R.R. Vol. 3, pg. 170).

Later in their conversation, Appellant stated he had taken Ambien 24 hours prior

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and Wellbutrin two days prior. (R.R. Vol. 3, pg. 171). Johnson initiated field

sobriety testing on Appellant, beginning with the Horizontal Gaze Nystagmus

test. (R.R. Vol. 3, pg. 172). Johnson first checked to make sure that Appellant

was a good candidate, meaning he did not have any sort of head trauma or brain

injury, by checking for equal pupil size and equal tracking. (R.R. Vol. 3, pg. 173-

174). Johnson did determine Appellant was a good candidate. (R.R. Vol. 3, pg.

174). Johnson observed six out of six clues on the HGN test. (R.R. Vol. 3, pg.

176). Johnson again questioned Appellant about any medications he may have

taken. (R.R. Vol. 3, pg. 176). Appellant advised Johnson he took Wellbutrin and

Lexapro that morning. (R.R. Vol. 3, pg. 176). Johnson then chose to perform

alternate field sobriety tests on Appellant due to the fact that he was in the

emergency room being treated for possible injuries. (R.R. Vol. 3, pg. 176-177).

Johnson asked Appellant to recite the alphabet, starting with the letter M and

ending with the letter W. (R.R. Vol. 3, pg. 177). Appellant appeared confused,

and performed poorly on the test. (R.R. Vol. 3, pg. 177). He started with W,

went back to M, skipped multiple letters and ended with Z. (R.R. Vol. 3, pg. 177).

After that test, Johnson and Appellant discussed how Appellant was in college at

Texas A&M getting his undergraduate degree. (R.R. Vol. 3, pgs. 177-178).

Johnson next asked Appellant to count backwards from 55 to 32. (R.R. Vol. 3,

pg. 178). Appellant appeared to understand what he was being asked to do, but

performed very poorly on the test, skipping around to different numbers and

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pausing several times. (R.R. Vol. 3, pg. 178-179). The next test Johnson had

him perform was the finger count test. (R.R. Vol. 3, pg. 179). Johnson showed

Appellant how to do this test multiple times, but Appellant was unable to

complete the test correctly. (R.R. Vol. 3, pg. 179). Johnson and Appellant

continued to converse, and at some point, Appellant advised Johnson that he

took the Ambien at 9:00 p.m. the night before. (R.R. Vol. 3, pg. 180). He had

taken two Wellbutrin and a Lexapro that morning. (R.R. Vol. 3, pg. 180).

Johnson explained to Appellant that medications can cause you to be intoxicated

or impaired, and Appellant agreed. (R.R. Vol. 3, pg. 181). Johnson then read

the statutory warning form to Appellant, requesting a blood sample. (R.R. Vol. 3,

pg. 181). Appellant consented to give a blood sample, without any resistance.

(R.R. Vol. 3, pgs. 181-182). Appellant also signed a consent form. (R.R. Vol. 3,

pg. 182).

The State then offered State’s Exhibit 13, a written stipulation of evidence,

entered into between the prosecutor, defense counsel, and the defendant, which

stated that the two prior convictions alleged in the indictment were true and final

convictions. There was no objection from the defense. (R.R. Vol. 3, pg. 191)

The State then rested its case-in-chief. (R.R. Vol. 3, pg. 192).

Appellant called Dr. Karen Reinersten, a psychiatrist employed with

Riverview Clinic, to testify on his behalf. (R.R. Vol. 4, pg. 7). Reinsten testified

that she treated Appellant for about fifteen minutes on March 19, 2014 for

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purposes of a medication evaluation. (R.R. Vol. 4, pg. 8). She renewed his

prescriptions for Wellbutrin, Lexapro, and Lithium. (R.R. Vol. 4, pg. 8).

Reinersten also testified that she reviewed a medication sheet which is

maintained by Riverview, and Appellant was prescribed Ambien on January 24,

2012 and May 24, 2012. (R.R. Vol. 4, pg. 9). On July 23, 2012, the Ambien was

discontinued, and Ambien CR was prescribed. (R.R. Vol. 4, pg. 9). As

Reinersten continued to testify about further notations in the record, State’s

counsel objected that the proper predicate had not been laid and as to hearsay.

(R.R. Vol. 4, pg. 11). The court ruled that the “progress notes” and “medication

log order” could be admissible if the proper business records predicate were laid.

(R.R. Vol. 4, pgs. 11-12). There was a document entitled “interpretation of

diagnosis” which was a report of Dr. Gregory Atchison. (R.R. Vol. 4, pg. 12).

The Court sustained the objection as to the report due to the report being

hearsay within hearsay, containing an expert opinion of an expert who did not

appear before the Court, and he was not tendered as an expert witness by

defense counsel. (R.R. Vol. 4, pgs. 12-13). The report was excluded. (R.R. Vol.

4, pg. 13). Defense counsel proceeded to lay the proper business records

predicate for the “progress notes” and “medication log order,” and those

documents were admitted without objection. (R.R. Vol. 4, pgs. 13-14).

Appellant testified in his own defense. Appellant testified that he is

disabled, as he suffers from mood disorders, bipolar, and panic attacks. (R.R.

-20-
Vol. 4, pg. 19). Appellant stated in the past he suffered from alcoholism, but he

consumed his last alcoholic beverage in December of 2009, when he received

his second DUI. (R.R. Vol. 4, pgs. 20-21). Appellant testified that he takes

Lithium for mood stabilization and Wellbutrin and Lexapro as antidepressants.

(R.R. Vol. 4, pgs. 23-24). He was prescribed Ambien controlled release in July

2012 and took it up until the accident on August 14, 2012. (R.R. Vol. 4, pg. 24-

25). Appellant stated he typically took the Ambien around 10:00 p.m. (R.R. Vol.

4, pg. 25). On a typical night in July or August of 2012, Appellant testified he

would normally sleep six hours. (R.R. Vol. 4, pg. 27). Appellant acknowledged

there were warnings about the Ambien either on the bottle or given to him with

his prescription and that he read the warnings when he picked up his

prescription. (R.R. Vol. 4, pgs. 28-29). Appellant claimed he did not remember

anything that occurred on August 14, 2012 until he landed in the creek. (R.R.

Vol. 4, pg. 30). Appellant did not remember speaking to Trooper White or EMS

personnel at the scene. (R.R. Vol. 4, pg. 32). He did not remember being

transported to the hospital. (R.R. Vol. 4, pg. 32). Appellant did not remember

performing the tests for Trooper Johnson, but he does remember his blood being

drawn. (R.R. Vol. 4, pgs. 32-33).

On cross-examination, State’s counsel impeached Appellant’s testimony

that he had not consumed any alcoholic beverages since his second DWI arrest,

which actually occurred in February 2010. (R.R. Vol. 4, pgs. 39-42). Appellant

-21-
admitted to being arrested in Marion County, after being placed on probation for

his second DWI, for evading arrest with a vehicle, DWI, and other charges. (R.R.

Vol. 4, pg. 40). Appellant testified he did not recall drinking that night, but he was

not taking anything like Ambien. (R.R. Vol. 4, pgs. 40-41). Subsequent to that

arrest, Appellant also admitted to pleading guilty in Miller County, Arkansas to

public intoxication, disorderly conduct, obstructing governmental operations, and

loitering. (R.R. Vol. 4, pg. 41). Appellant testified that on two separate occasions

after he pled to the DWI second, he was drinking and driving. (R.R. Vol. 4, pg.

42).

Appellant further testified on cross-examination that the reason he only

remembers bits and pieces of the crash is solely attributed to the Ambien, and

not his mental capabilities. (R.R. Vol. 4, pg. 43). He testified that what made him

drowsy was the Ambien, that he was sleep driving. (R.R. Vol. 4, pg. 51).

Both sides rested and closed on July 30, 2014. (R.R. Vol. 4, pg. 53). The

Court’s charge was read to the jury. (R.R. Vol.4, pgs. 56-63). Closing

arguments were presented by both the State and the defense, after which the

jury retired to deliberate. (R.R. Vol. 4, pgs. 63-76). The jury returned after 38

minutes of deliberation with a “guilty” verdict. (R.R. Vol. 4, pg. 77).

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 SUMMARY OF THE ARGUMENT

Issue 1: The evidence introduced at trial was legally sufficient to
establish that Appellant was intoxicated at the time he operated
a motor vehicle, thereby supporting the jury’s guilty verdict.

The Court shall utilize the legal sufficiency standard set out in Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim.

App. 2010). Under that standard, all evidence is to be viewed in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the elements beyond a reasonable doubt. Jackson at 318-19; Acosta v.

State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). In viewing all the

evidence introduced at trial in the light most favorable to the verdict, it is clear

that the evidence was legally sufficient to support the jury’s verdict.

Issue 2: Appellant expressly consented to a blood draw, therefore, the
trial court did not abuse its discretion in denying Appellant’s
Motion to Suppress Blood Analysis.

A trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion and should only be overturned if it is outside the zone of reasonable

disagreement. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013);

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). Whether a

person’s consent was voluntarily given shall be judged by the trial court based on

the totality of the circumstances. Johnson v. State, 68 S.W.3d 644, 653 (Tex.

Crim. App. 2002); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).

In applying the factors identified in State v. $ 217,590.00 in United States

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Currency, 18 S.W.3d 631, 634 (Tex. 2000), to the evidence presented at the

suppression hearing, it is clear that the State met its burden to prove by clear and

convincing evidence that Appellant’s consent to give blood was freely and

voluntarily given.

Issue 3: The jury may be informed of an Appellant’s stipulations to two
prior DWI convictions, as proof of those priors is a
jurisdictional element of the offense.

The Court of Criminal Appeals has held in numerous cases that proof of

the two prior convictions is a jurisdictional element of the offense that must be

proven in order to obtain a conviction for the offense of felony DWI. Hollen v.

State, 117 S.W.3d 798, 801 (Tex. Crim. App. 2003); Barfield v. State, 63 S.W.3d

446, 448 (Tex. Crim. App. 2001); Tamez v. State, 11 S.W.3d 198, 202-03 (Tex.

Crim. App. 2000). Additionally, the Court has held that the jury may be informed

of that stipulation and any written stipulation may be offered into evidence.

Hollen at 801.

Issue 4: Appellant failed to argue any basis for the admissibility of the
excluded “interpretation of diagnosis,” therefore, he has not
preserved this issue for review.

In order to preserve an argument regarding the exclusion of evidence, the

proponent of the evidence must have attempted to introduce the evidence at trial,

and the trial court must have excluded the evidence. See TEX. R. APP. P.

33.1(a), TEX. R. EVID. 103(a)(2), Basham v. State, 608 S.W.2d 677, 679 (Tex.

Crim. App. 1980). Additionally, the proponent must have presented to the judge

-24-
an argument as to why the evidence was admissible. Reyna v. State, 168

S.W.3d 173, 177 (Tex. Crim. App. 2005). Failure to present an argument to the

trial court in support of admission of the excluded evidence waives the argument

on appeal. Id. at 176-179. Appellant failed to present any argument as to why

the excluded “interpretation of diagnosis” was admissible, and further failed to

make an offer of proof. Therefore, he has failed to preserve this error for appeal.

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 ARGUMENT AND AUTHORITIES

Issue 1: The evidence introduced at trial was legally sufficient to
establish that Appellant was intoxicated at the time he operated
a motor vehicle, thereby supporting the jury’s guilty verdict.

I. Standard of Review

The Texas Court of Criminal Appeals has held that in evaluating whether

there is sufficient evidence to support a jury verdict, the Court shall utilize the

legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319

(1979). Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Under that

standard, all evidence is to be viewed in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson at 318-19; Acosta

v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014); Adames v. State, 353

S.W.3d 854, 859-60 (Tex. Crim. App. 2011); Brooks, 323 S.W.3d at 912.

Evidentiary sufficiency is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). Under a hypothetically correct jury charge,

Appellant is guilty of Driving While Intoxicated – Subsequent Offense if he (1)

operated (2) a motor vehicle (3) in a public place (4) while intoxicated, and (5)

has been previously convicted two times of an offense relating to the operating of

a motor vehicle while intoxicated. Driving While Intoxicated is a strict liability

crime. Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim. App. 2013) Therefore,

-26-
there is no requirement to prove a specific mental state (e.g., intentionally,

knowingly, or recklessly intending to operate a motor vehicle while intoxicated).

Id.

II. Law & Applicability

There is sufficient evidence to support the jury’s verdict that Appellant

operated a motor vehicle in a public place while intoxicated, and that he had

been previously convicted two times of an offense relating to the operating of a

motor vehicle while intoxicated.

It is undisputed that Appellant was driving the car. Both Trooper Eric

White and Appellant, himself, identified Appellant as the driver of the vehicle

which crashed FM 3129 in Cass County, Texas on August 14, 2012. (R.R. Vol.

3, pgs. 110, 114). It is also undisputed that Appellant was previously convicted

two times of an offense relating to the operating of a motor vehicle while

intoxicated, as Appellant stipulated to this fact. (R.R. Vol. 3, pg. 191, State’s

Exhibit 13).

There is more than sufficient evidence that Appellant was intoxicated at the

time of driving. Joseph Melder testified that he observed Appellant’s car swerve

a couple of times, and then veer off the road into the creek. (R.R. Vol. 3, pg.

104). Trooper White observed Appellant supporting himself on the guardrail due

to having balance issues. (R.R. Vol. 3, pg. 116). He also noted Appellant to

have slurred speech and coordination issues. (R.R. Vol. 3, pg. 117). Appellant

-27-
admitted he had taken Lithium, Wellbutrin, and “a little pink pill for sleep.” (R.R.

Vol. 3, pg. 117, 128). Michelle Melo testified that a blood analysis of Appellant’s

blood tested positive for citalopram, hydroxyzine, and zolpidem. (R.R. Vol. 3, pg.

149). All three of these pills can cause drowsiness, and zolpidem’s sole purpose

is to make a person fall asleep. (R.R. Vol. 3, pgs. 150-151). Trooper Wayne

Johnson testified that he performed field sobriety tests on Appellant, and

Appellant performed poorly on all tests. (R.R. Vol. 3, pgs. 176-179). Appellant

told Johnson that he had taken Wellbutrin, Lexapro, and Ambien. (R.R. Vol. 3,

pg. 176, 180). Appellant testified that he did not remember anything that

occurred on August 14, 2012 until he landed in the creek. (R.R. Vol. 4, pg. 30).

He attributed his lack of memory to the Ambien, and claimed that he was sleep

driving. (R.R. Vol. 4, pgs. 43, 51).

Viewing all this evidence in the light most favorable to the verdict, it is

clear that any rational trier of fact could have found the essential elements of the

offense of Driving While Intoxicated – Subsequent Offense beyond a reasonable

doubt.

Issue 2: Appellant expressly consented to a blood draw, therefore, the
trial court did not abuse its discretion in denying Appellant’s
Motion to Suppress Blood Analysis.

I. Standard of Review

A trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion, and is to be overturned only if it is outside the zone of reasonable

-28-
disagreement. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013);

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). The appellate

court shall apply a bifurcated standard of review, giving almost complete

deference to the trial court’s determination of historical facts and mixed questions

of law and fact and that rely upon an assessment of the credibility and demeanor

of a witness, but applying a de novo standard of review to pure questions of law

and mixed questions that do not depend on credibility determinations. Johnson,

414 S.W.3d at 192; Martinez, 348 S.W.3d at 923.

II. Law & Applicability

Consent to search is one of the well-established exceptions to the

constitutional requirements of both a warrant and probable cause. Maxwell v.

State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002)(citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973)); Carmouche v. State, 10 S.W.3d 323,

331 (Tex. Crim. App. 2000). In order to be valid, consent must “not be coerced,

by explicit or implicit means, by implied threat or coerced force.” Schneckloth,

412 U.S. at 228. “Although the federal constitution only requires the State to

prove the voluntariness of consent by a preponderance of the evidence, the

Texas Constitution requires the State to show by clear and convincing evidence

that the consent was freely given.” Carmouche, 10 S.W.3d at 331. The trial

court shall look to the totality of the circumstances surrounding the consent in

determining whether that consent was given voluntarily. Johnson v. State, 68

-29-
S.W.3d 644, 653 (Tex. Crim. App. 2002); Reasor v. State, 12 S.W.3d 813, 818

(Tex. Crim. App. 2000). Again, almost total deference shall be given to a trial

court’s findings of fact, especially when those findings are based on an

evaluation of credibility and demeanor of a witness. Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); Martinez v. State, 348 S.W.3d 919, 923

(Tex. Crim. App. 2011).

Factors to be examined in determining whether an accused freely and

voluntarily consented include, but are not limited to the following:

(1) whether, and to what extent, officers exhibited a show of force,
including a display of weapons or other intimidating tactics; (2)
whether the arresting officers engaged in flagrant misconduct; (3)
whether the police threatened to obtain a search warrant, or whether
the police claimed a right to search; (4) whether the police
administered Miranda warnings; (5) whether the arrest was made in
order to obtain consent; 6) whether the accused knew that he could
refuse to allow a search; (7) whether consent was first offered by the
accused or was in response to a police request; and (8) the
accused’s age, education, intelligence, and physical condition.

See Frierson v. State, 839 S.W.2d 841, 851 (Tex. App.—Dallas 1992, pet.

ref’d); see also State v. $ 217,590.00 in United States Currency, 18 S.W.3d 631,

634 (Tex. 2000) (compiling list of factors from various cases).

In applying these factors to the evidence presented at the suppression

hearing, it is clear that the State met its burden to prove by clear and convincing

evidence that Appellant’s consent to give blood was freely and voluntarily given.

There was no evidence presented at the hearing that either Trooper Wayne

-30-
Johnson or Trooper Eric White exhibited a show of force or displayed any

weapons. To the contrary, Johnson engaged in conversation with Appellant

regarding the events leading up to the crash, where he was travelling, and what

medications he had been taking. (R.R. Vol. 2, pgs. 22-23). They also discussed

that Appellant was an undergraduate student at Texas A&M. (R.R. Vol. 2, pg.

27). There was no indication that Appellant was physically abused or threatened

into giving consent or evidence of violence or physical coercion of any kind. See

Lackey v. State, 638 S.W.2d 439, 451 (Tex. Crim. App. 1982)(stating that

absence of violence and physical coercion is indicative that consent was given

voluntarily). There was no evidence of flagrant misconduct by Trooper Johnson

or Trooper White. There was no testimony that Trooper Johnson or Trooper

White threatened to obtain a search warrant if Appellant did not consent to the

blood draw. While Trooper Johnson did not read Appellant his Miranda warnings

at this time, he did read the DIC-24 statutory warning form to Appellant which

advised Appellant of his right to refuse consent but admonished Appellant of the

consequences of that refusal. (R.R. Vol. 2, pg. 30). Additionally, after

consenting to the blood draw, Trooper Johnson had Appellant sign a consent

form acknowledging that he was giving his consent to the blood draw. (R.R. Vol.

2, pg. 31, State’s Exhibit 1). At no time did Appellant ever resist the nurse’s

attempt to draw his blood, tending to show that Appellant freely and voluntarily

acquiesced to the blood draw. (R.R. Vol. 2, pg. 32).

-31-
 Viewing all of this evidence in the light most favorable to the trial court’s

ruling that there was “clear and convincing evidence by a totality of the

circumstances that there was actual consent to the blood draw,” and assuming

that the trial court made implicit findings of fact that support that ruling, see State

v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), this Court should find that

the trial court did not abuse its discretion in denying Appellant’s Motion to

Suppress the Blood Analysis.

Issue 3: The jury may be informed of an Appellant’s stipulations to two
prior DWI convictions, as proof of those priors is a
jurisdictional element of the offense.

I. Preservation of Error

Three steps are necessary to preserve error regarding evidence admitted

or placed before the jury: a specific and timely objection, a request for an

instruction to disregard, and a motion for mistrial. See Fuller v. State, 827

S.W.2d 919, 926 (Tex. Crim. App. 1992). To preserve error, counsel must obtain

an adverse ruling, either on the objection, the request that the jury be instructed

to disregard, or the motion for mistrial. Id. Courts hold the sequence of those

steps is not so critical as is the fact that the movant persists in seeking all

available relief from the trial court, until the trial court effectively denies relief to

which the movant is entitled. Id.

In this case, Appellant never objected to the admissibility of the stipulations

in trial. The only mention Appellant ever made was at the pretrial hearing on

-32-
Appellant’s Motion in Limine, with regards to the request that the State not be

able to mention “any evidence the defendant committed an offense other than

the offense currently being tried.” (R.R. Vol. 2, pg. 10. The State responded that

they were required to prove up the two prior DWI convictions for jurisdictional

purposes, to which Appellant responded, “Your Honor, we’ll stipulate to those two

prior DWI convictions, so there’s no necessity to bring that up in front of the jury.”

(R.R. Vol. 2, pg. 10). The trial court disagreed, stating that “the stipulation itself

has to be offered in order for the State to have sufficient evidence to prove its

case…they have to present to the jury the fact of the two prior convictions, even

with the stipulation.” (R.R. Vol. 2, pg. 10). When Appellant was arraigned in the

presence of the jury, the two jurisdictional priors were read, and there was no

objection from Appellant. (R.R. Vol. 3, pg. 95). After all State’s witnesses

testified, the State offered Exhibit 13, the written stipulation that Appellant had

been previously convicted two times of an offense relating to the operating of a

motor vehicle while intoxicated, which was signed by all parties. (R.R. Vol. 3, pg.

191). Appellant did not object to the Exhibit, and Appellant further failed to object

when the State read the stipulation into the record. (R.R. Vol. 3, pgs. 191-192).

Due to Appellant’s failure to object, this issue has not been preserved for review.

II. Law & Applicability

Even if this issue were preserved for review, the law is clear in Hollen v.

State, 117 S.W.3d 798, 801 (Tex. Crim. App. 2003), that the jury may be

-33-
informed of a stipulation and any written stipulation may be offered into evidence

before the jury. The Court in Hollen, citing its prior holdings in Tamez v. State,

11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000) and Barfield v. State, 63 S.W.3d

446, 448 (Tex. Crim. App. 2001), states “we have reiterated that the two prior

convictions are jurisdictional elements that must be proven to obtain a conviction

for the offense of felony DWI.” In this case, proof of Appellant’s two prior

convictions was necessary to prove the jurisdictional elements for the offense of

felony DWI, and it was not error for the trial court to permit the State to admit the

stipulation into evidence before the jury.

Issue 4: Appellant failed to argue any basis for the admissibility of the
excluded “interpretation of diagnosis,” therefore, he has not
preserved this issue for review.

I. Preservation of Error

A trial court’s order excluding evidence is to be reviewed under an abuse

of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.

2002). In order to successfully argue on appeal that the trial court erred in

excluding certain evidence, an appellant must demonstrate that (1) he preserved

the argument by offering the evidence during the trial and by making the trial

court aware of the substance of the evidence and the basis for its admission, see

TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(2), Basham v. State, 608 S.W.2d

677, 679 (Tex. Crim. App. 1980); the trial court erred in ruling the evidence

inadmissible, see Willover 70 S.W.3d at 845; and (3) the trial court’s exclusion of

-34-
the evidence was harmful to appellant’s case, see TEX. R. APP. P. 44.2; Ray v.

State, 178 S.W.3d 833, 835-36 (Tex. Crim. App. 2005).

In order to preserve an argument regarding the exclusion of evidence, the

proponent of the evidence must have actually attempted to introduce the

evidence during trial, and the trial court must have excluded the evidence. See

TEX. R. APP. P. 33.1(a), TEX. R. EVID. 103(a)(2), Basham, 608 S.W.2d at 679.

The proponent of the evidence must also have made the substance of the

offered evidence known to the court through either a bill of exception or offer of

proof, unless the substance is apparent from the context in which the evidence

was offered. See TEX. R. EVID. 103(a)(2). Failure to present a particular

argument to the trial court in support of the admission of excluded evidence

waives the argument on appeal. Reyna v. State, 168 S.W.3d 173, 176-179 (Tex.

Crim. App. 2005); Rodriguez v. State, 749 S.W.2d 576, 578 (Tex. App.—Corpus

Christi 1988, pet. ref’d). It is not enough to tell the judge that evidence is

admissible. Reyna, 168 S.W.3d at 177. The proponent of the evidence must

have told the judge why the evidence was admissible. Id. (emphasis added).

In this case, Appellant sought to admit a document entitled “interpretation

of diagnosis,” which was a report made by a Dr. Gregory Atchison dated

December 20, 2012. (R.R. Vol. 4, pg. 12). The State objected on the grounds

that neither the proper business records predicate had been laid and as to

hearsay. (R.R. Vol. 4, pg. 11). Appellant did not present an argument to the trial

-35-
court as to why the document was admissible, and further failed to make an offer

of proof. (R.R. Vol. 4, pg. 13). Because Appellant failed to include any specificity

as to the substance of the offered evidence, there is no way to know from the

record whether the exclusion was harmful to Appellant’s case. Appellant has

failed to preserve this error for appellate review.

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 PRAYER

WHEREFORE, premises considered, Appellee respectfully requests that

the adjudication of Appellant and corresponding sentence imposed by the trial

court be in all things AFFIRMED.

Respectfully submitted,

Courtney Shelton
_____________________________
Courtney H. Shelton
Cass Co. Asst. Criminal District Attorney
Texas Bar No. 24043354
Post Office Box 839
Linden, Texas 75563
Telephone: 903.756.7541
Facsimile: 903.756.3210
cholland.assistantda@casscountytx.org

Attorney for Appellee,
The State of Texas

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 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing

Brief of Appellee was forwarded via First Class mail on February 19, 2015, to the

following attorneys of record and interested parties:

Appellant Appellant’s Attorney
Christopher Vujovich Edwin Buckner
TDC # 01944642 P.O. Box 629
East Texas Treatment Facility Linden, Texas 75563
900 Industrial Drive
Henderson, Texas 75652

Trial Court Judge
Hon. Donald Dowd
County Court at Law Judge,
Sitting for the 5th Judicial District Court
P.O. Box 510
Linden, Texas 75563

Courtney Shelton
_____________________________
Courtney H. Shelton

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 CERTIFICATE OF COMPLIANCE

Relying on the word count function in the word processing software used
to produce this document, I certify that the number of words in this reply
(excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix) is 6,193.

Courtney Shelton
________________________________
Courtney H. Shelton

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