Rebecca Lynn Barker v. State

ACCEPTED 12-14-00345-cr TWELFTH COURT OF APPEALS TYLER, TEXAS 6/11/2015 3:18:54 PM CATHY LUSK CLERK NO. 12-14-00345-CR RECEIVED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS TYLER, TEXAS 6/11/2015 3:18:54 PM TWELFTH COURT OF APPEALS DISTRICT CATHY S. LUSK Clerk TYLER, TEXAS 6/11/2015 _________________________________________________________________ REBECCA LYNN BARKER Appellant V. STATE OF TEXAS State _________________________________________________________________ BRIEF OF APPELLANT REBECCA LYNN BARKER _________________________________________________________________ LAW OFFICE OF STEN M. LANGSJOEN P.O. BOX 539 TYLER, TEXAS 75710-0539 TELEPHONE: (903) 531-0171 TELEFAX: (903) 531-0187 SBN: 11922800 e-mail: sten@langsjoenlaw.com ORAL ARGUMENT NOT REQUESTED: Sten M. Digitally signed by Sten M. Langsjoen DN: cn=Sten M. Langsjoen, o, ou, Langsjoen email=sten@langsjoenlaw.com, c=US Date: 2015.06.11 15:07:27 -05'00' ________________________________ STEN M. LANGSJOEN State Bar No. 11922800 ATTORNEY FOR APPELLANT TABLE OF CONTENTS Names of All Parties ..................................................................................................... iv Index of Authorities ....................................................................................................... v Index of Abbreviations ................................................................................................ vii Introduction .................................................................................................................... 1 Preliminary Statement of the Nature of the Case ........................................................ 2 Statement of Points of Error [Anders; Gainous] .......................................................... 3 Statement of Facts.......................................................................................................... 4 Brief of the Argument.................................................................................................... 5 Authority and Argument................................................................................................ 6 WORD Count Certificate ............................................................................................ 16 Prayer ........................................................................................................................... 17 Certificate of Service ................................................................................................. 18 Appendix ..................................................................................................................... 19 iii NAMES OF ALL PARTIES Parties to this action are: Appellant Rebecca Lynn Barker, Inmate No.: 01970795 Mountainview Unit 2305 Ransom Road Gatesville, Texas 76528 Counsel for Appellant Sten Langsjoen P.O. Box 539 Tyler, Texas 757510-0539 Appellee State of Texas Counsel for Appellee Rachael Patton, District Attorney for Cherokee County 502 North Main Rusk, Texas 75785 Counsel for the parties before the Trial Court were: Counsel for Defendant (Appellant) Allen Ross P.O. Box 528 Rusk, Texas 75766 iv Counsel for State of Texas Rachael Patton, District Attorney for Cherokee County 502 North Main Rusk, Texas 75785 INDEX OF AUTHORITIES Cases Adkinson v. v. State of Texas, 762 S.W.2d 255, 259 (Tex. App. – Beaumont 1988, pet. ref’d) ................................................................ 6 Andres v. California, 386 U.S. 738 (1967) .................................................................. 3 Clewis v. State, 922 S. W. 2d 126, 134 (Tex. Crim. App. 1996) .......................... 10 Ex Parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974) .................................. 13 Ex Parte Burns, 601 S.W. 2d 370, 372 (Tex. Crim. App. 1980) .............................. 13 Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969) ........................ 3 Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001) .......................... 14 Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993)............................ 10 Garza v. State of Texas, 878 S.W.2d 213, 216 (Tex. App. – Corpus Christi 1994, pet. ref’d) ....................................................... 11 Howard v. State, 137 S.W. 3d 281, 285 (Tex. App, 2006, writ ref’d, n.r.e.) ........ 10 Howell v. State of Texas, 563 S.W. 2d 933 (Tex. Crim. App.) ................................ 13 v Jackson v. Virginia, 443 U.S. 307, 319, (1979) .................................................... 10 Wilkerson v. State of Texas, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987) ....... 11 Statutes/Rules Tex. Code Crim. Proc, Art. 19.27 (GJ Challenge) ..................................................... 6 Tex. Code Crim. Proc, Art. 21.02 (Indictment) ......................................................... 6 Tex. Code Crim. Proc, Art. 26.01 (Arraignment) ...................................................... 6 Tex. Code Crim. Proc, Art. 26.02 (Arraignment) ...................................................... 6 Tex. Code Crim. Proc, Art. 26.13 (a) (1) and (4); (b) (Accepting Guilty Plea) ...... 8 Tex. Code Crim. Proc, Art. 26.14 (Accepting Guilty Plea) .................................. 10 Tex. Code Crim. Proc, Art. 35.07 (Array) .................................................................. 7 Tex. Code Crim. Proc, Art. 35.17 (Voir Dire) ........................................................... 7 Tex. Code Crim. Proc, Art. 35.14 (Peremptory Challenge) ...................................... 7 Tex. Code Crim. Proc, Art. 35.25 (Peremptory Challenge) ...................................... 7 Tex. Code Crim. Proc, Art. 37.04 (Verdict) ............................................................. 12 Tex. Code Crim. Proc, Art. 42.01 .......................................................................... 12 Tex. Penal Code, Section, 12.32 (a) (First-Degree Prison Sentence Range) ....... 2, 12 Tex. Penal Code, Section, 12.32 (a) (First-Degree Fine Range) .............................. 12 vi Tex. Penal Code, Section 19.02 (b) (1) (Murder Elements) ....................................... 2 Tex. Penal Code, Section 19.02 (c) (First-Degree Punishment Range) ................... 12 INDEX OF ABBREVIATIONS Clerk’s Record .......................................................................................................... CR Reporter’s Record, Volume I .................................................................................. RRI vii NO. 12-14-00345-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS _________________________________________________________________ REBBECA LYNN BARKER Appellant V. STATE OF TEXAS State _________________________________________________________________ BRIEF OF APPELLANT REBECCA LYNN BARKER TO THE HONORABLE JUSTICES OF SAID COURT: NOW COMES REBECCA LYNN BARKER, Appellant in the above-styled and numbered cause and Defendant in the Trial Court, and, by and through appointed Counsel, files this Brief of Appellant and respectfully reports to the Court of Appeals that no reversible errors were found to have been committed by the Trial Court relating to pretrial and evidentiary rulings during trial in Cause Number 19191 in the 2nd Judicial District Court of Cherokee County, Texas, before the 1 Honorable Judge Bascon Bentley, III, Judge Presiding. PRELIMINARY STATEMENT OF THE NATURE OF THE CASE Appellant was charged by indictment for the crime of murder occurring on February 26, 2014, carrying a first-degree felony punishment range. CR, at p. 15; Tex. Penal Code, §§ 19.02 & 12.32. The indictment alternatively charged 1) Appellant intentionally or knowing caused the death of an individual (Id., at §19.02 (b) (1)); or 2) Appellant, with intent to cause serious bodily injury, committed an act clearly dangerous to human life that caused the death of an individual. Id., at §19.02 (b) (2); Tab A. An open plea agreement was approved by the Trial Court and jury selection was completed on the issue of punishment. CR, at pp. 28-29; RRII, at pp. 1/22 – 3/5; 4/15 – 93/24. After the indictment was read to Appellant in front of the jury, the Trial Court accepted and approved Appellant’s plea of “guilty”. RRIII at pp. 5/1 – 12/17. Thereafter followed the State’s opening statement (Appellant’s Trial Counsel waived an opening statement (RRVIII, at p. 11/18-19)) on punishment and the presentation of evidence from the State and the defense was completed. RRIII, at pp. 13/18 – 46/10. The jury assessed a life sentence and a $10,000.00 fine and judgment for same was entered. RRIII, at pp. 64/21 – 65/3; CR, at pp. 57-59; Tab C; Tab E. 2 The Trial Court certified that Appellant could seek appellate review of the conviction and sentence, and Appellant timely filed a notice of appeal. CR, at pp. 62-3; 73; Tab F; Tab H. STATEMENT OF POINTS OF ERROR No reversible points of error were identified following review of the record, and this Brief is submitted in compliance with the tenants of Anders v. California, 386 U.S. 738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel believes, after a review of the record, the subject appeal is frivolous and should be dismissed. 3 STATEMENT OF FACTS On February 26, 2014, law enforcement officers responded to a reported shooting that occurred in the Dialville, Cherokee County Texas, area. RRVIII, at pp. 10/1 – 11/7; 21/15-22. Officers located the dead body of Jerry Barker seated in a recliner in a residence and located Appellant in a despondent state at the scene. Id. At the scene, officers located a .357 magnum six-shot revolver and recovered bullets from the recliner and from the flooring nearby. Id., at pp. 21/15-22; 25/18 – 26/13; 26/19 – 27/4; 34/20 – 35/25; 39/8-12. A forensic pathologist conducted the autopsy of the victim to the conclusion that the victim’s death was caused by at least one fatal gunshot wound. Id., at pp. 52/1 – 60/25. One of the bullets that struck the victim’s chest was delivered at close range (within ~ 3”) leaving powder residue on the body. Id. Appellant confessed to shooting her husband, Mr. Barker. Mr. Barker was Appellant’s second husband and they were together several years prior to the shooting, living in the Dialville, Texas, area, and running a local mercantile store. RRIX, at pp. 11/22 – 16/24; 30/18 – 39/24; 58/12 – 66/6. Prior to the subject fatal shooting, friends of Appellant described her relationship with the decedent as caring but stressed due to financial burdens and suggestions of physical 4 abuse toward Appellant. RRIX, at pp. 11/22 - 16/24; 53/24 – 57/19; 58/12 – 66/6. The decedent’s general health problems, exacerbated by injuries he suffered in a riding lawn mower roll-over accident (Id., at pp. 30/18 – 39/24), caused increased anxiety and responsibilities on Appellant in operating the local store and in dealing with the decedent. Id. Locals having knowledge of Appellant through the store or church generally described her as law abiding, generous and a lover of animals. Id., at pp. 11/22 – 16/24; 21/22 – 24/16; 25/10 – 30/4. Prior to her marriage to Mr. Barker, Appellant was married to John Osborne and lived with Mr. Osborne in Liberty County, Texas. RRVIII, at pp. 66/1 – 72/24. In 1996, Liberty County law enforcement officers investigated a shooting wherein John Osborne was shot three times by “Rebecca Osborne”. Id., at pp. 66/1 – 72/24. John Osborne survived the shooting, and “Rebecca Osborne” was identified as Appellant. Id. BRIEF OF THE ARGUMENT Following a review of the pre-trial proceedings, trial and judgment, no error, that was more than harmless error, was found that could be presented for review to the appellate court, and therefore, appointed counsel believes the subject appeal is 5 frivolous and without merit. Appointed Counsel seeks to withdraw here from and has invited response hereto from the Appellant, as described in hereinafter. ARGUMENT AND AUTHORITY Grand Jury & Indictment: Appellant was indicted for murder with an offense date of February 26, 2014 by a Cherokee Grand Jury on April 28, 2014. CR, at p. 15. The indictment presented alternate theories to support the murder allegation consistent with Sections 19.02 (b) (1) and (b) (1) of the Texas Penal Code. Id.; Tex. Penal Code, §19.02 (b); Tab A. The indictment appears to be valid on its face and carries the signature of the purported Foreperson of the Grand Jury. Id.; Tex. Code Crim. Proc., Art 21.02. The record is silent as to any challenge to the composition of the Grand Jury leaving nothing as to the indictment or grand jury for review. Tex. Code Crim. Proc., Art. 19.27. Arraignment: An arraignment hearing was held and in open court, Appellant through Counsel confirmed knowledge of the charges, confirmed correct spelling of her name, and entered a plea of not guilty. RRII, at p. 4/5-25; Tex. Code Crim. Proc., Art. 26.01. The proceeding fixed the Appellant’s identity and allowed for the 6 entry of her plea. Id.; Tex. Code Crim. Proc., Art. 26.02. The proceeding appears to be regular, and, since no objection was raised, any error regarding deficiencies in the arraignment were waived. Adkinson v. State of Texas, 762 S.W.2d 255, 259 (Tex. App. – Beaumont 1988, pet. ref’d). No point of error was found. Pre-Trial Motions: Aside from a request for an investigator and fees for same (CR, at pp. 16- 19; 35-37), no discovery motions were filed on behalf of Appellant. CR, at pp. 2- 4. The State did file a Discovery Receipt and a Discovery Evidence Notice (CR, at pp. 20; 31) indicating that Trial Counsel received discovery in the case prior to trial. No objection to inadequate production was found in the record and nothing is preserved for review. No potential error was found. Voir Dire: On 04-12-10, Trial Counsel participated in the voir dire examination of the jury panel and there was no interference with the examination by either the State or by the Trial Court. RRVI, at pp. 42/1 -111/25; RRVLL, at pp. 40/1 -135/25; Tex. Code Crim. Proc., Art. 35.17. Peremptory challenges were made by the State and Trial Counsel. Tex. Code Crim. Proc., Art. 35.14; 35.25; CR, at pp. 39 - 42; 45 - 48. No objections were directed to the array (Tex. Code Crim Proc, Art. 7 35.07) or empanelment of the jury and nothing is preserved for review. Appellant’s Plea: Guilty: The record reflects that the Appellant, joined by her Trial Counsel filed a “Waiver of Jury/Guilt Innocence Jury Request – Punishment Only” entering a guilty plea to the charge of murder and preserving her right to have the jury assess punishment. CR, at p. 30; Tab C. Further, A “Felony Agreed Plea Recommendation – No Appeal” was filed with the Clerk and recites the terms of an “Open Plea” CR, at pp. 28-29; Tab B. Article 26.13 of the Texas Rules of Criminal Procedure sets forth that the Trial Court must substantially comply with the directives in Article 26.13 (a). Tex. Code Crim. Proc., Art. 26.13 (a) (1) through (6). Prior to accepting a plea of guilty (pertinent to the case at bar), the Trial Court must advise in part of the range of punishment; the nonbinding nature of the agreement as to the Trial Court; limited appellate rights if the agreement is followed or improved upon; the effect of non-citizenship. Id. Further, the Trial Court must be satisfied that the plea is free and voluntary and that the Defendant is mentally competent. Id., at Art. 26.13 (b). Following the reading of the indictment, Appellant entered a plea of 8 “Guilty” in front of the Jury. Specifically, the Trial Court had the following exchange, to-wit: THE COURT: Ms. Barker, do you understand the nature of the charge against you? THE DEFENDANT: Yes, sir. THE COURT: How do you plead. Ma’am? THE DEFENDANT: Guilty. THE COURT: Not guilty. THE DEFENDANT: Guilty. THE COURT: All right. Let the record reflect I’ll take judicial notice of all prior proceedings concerning the defendant and the actions of the court, as well as any plea that has been entertained. RRVIII, at p. 5/14-25. There appears to be substantial compliance with Article 26.13, and no point of error appears from the record. (Please note: the Reporter references “proceedings on 10-08-14 and Volume V of the Reporter’s Record carries the front-sheet copy of the Felony Plea agreement and the Docket Sheet references a plea hearing on 10-08-15 (CR, at p. 106); however, no transcript of the plea hearing is contained in the appellate record. At this time, based upon information from Trial Counsel, a formal plea hearing took place prior to trial, and Counsel is 9 expecting to confirm this through the Reporter. A motion to supplement the Reporter’s Record is expected to be filed containing the record of the plea hearing, along with Appellant’s supplemental Brief addressing same.) Opening Statements: The State presented a brief opening statement and the Appellant waived his opening statement. RRVIII, at pp. 6/5 – 19. A review of the opening reveals no offensive or improper statements that would be available for review in the absence of challenging objections: nothing is found for review. Legal/Factual Sufficiency: Generally, challenges to the sufficiency of evidence supporting a criminal conviction fall within one of two categories. First, the evidence can be legally insufficient thus rendering a conviction subject to reversal and vacation. For legal sufficiency, the evidence is viewed in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). In regard to factual sufficiency review, the evidence is considered in a neutral light favoring neither party. Clewis v. State, 922 S. W. 2d 126, 134 (Tex. Crim. App. 10 1996); Howard v. State, 137 S.W. 3d 281, 285 (Tex. App, 2006, writ ref’d, n.r.e.). However, in the present case wherein Appellant enters a plea of “guilty” before the jury, provided the plea is determined to be freely and voluntarily entered, then the State is freed from its obligation to prove the elements of the alleged offense. Specifically, Article 26.14 permits the jury trial to proceed to the punishment phase after a Defendant persists in pleading guilty. Tex. Code Crim. Proc., Art. 26.14. “A plea of guilty to a felony offense before a jury . . . is a unitary trial, not a bifurcated one. A plea of guilty to a felony before a jury admits the existence of all incriminating facts necessary to establish guilt. … Introduction of evidence by the State in a felony case involving a plea of guilty before the jury is to enable the jury to [assess the penalty].” Wilkerson v. State of Texas, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987); Garza v. State of Texas, 878 S.W.2d 213,216 (Tex. App. – Corpus Christi 1994, pet. ref’d) (“A plea of guilty to a felony charge before a jury amounts to an admission of all facts necessary to establish guilt . . ..”). The evidence appears to be sufficient to support the sentence. See, “Statement of Facts” above. The jury enjoys wide latitude in assessing punishment and was provided a range of from between 5 and 99 years, or life in 11 prison, and up to a $10,000.00 fine. Charge on Punishment: Following the presentation of evidence from the State and the defense, the Charge of the Court was prepared and both the State and Appellant had an opportunity to review and object thereto. RRX, at pp. 1/12-17. No objections were raised by the defense. Id. A review of the Charge indicates that the Trial Court properly advised the jury of the range of punishment for an allegation for murder. RRX, at p. 6/9-14; Tab D; Tex. Penal Code, § 12.32. Verdict: Following the reading of the Charge of the Court and presentation of arguments from both parties, the jury deliberated and returned a verdict assessing a life sentence. CR, at p. 61. The verdict was signed by the foreperson and the jury indicated that the verdict was unanimous. Id.; RRX, at p. 30/11-20. The receipt of the verdict appears to be in order and there appears to be no violation of Article 37.04, Texas Code of Criminal Procedure. Tex. Code Crim. Proc., Art. 12 37.04. The record is silent as to potential issues of jury misconduct and no issue is identified to support a claim of error. Judgment: Pursuant to Article 42.01, Texas Code of Criminal Procedure, and following the acceptance of the jury’s verdict, the Trial Court entered a judgment accurately describing the charge and sentenced Appellant to the life sentence assessed by the jury and describing the $10,000.00 fine. CR, at pp. 64-65; Tab E; Tex. Code Crim. Proc., Art. 42.01. There does not appear to be a defect as to form or substance regarding the judgment that would support the presentation of a error. Assistance of Counsel: Appellant was entitled to legal representation in criminal prosecution pursuant to state and federal constitutional law and statutory law. United State’s Constitution, 6th Amendment; 14th Amendment; Texas Constitution, Article 1, Section 10; Texas Code of Criminal, Art. 1.05. The right to counsel, as described in the state and federal constitutions, does not mean errorless counsel. Ex Parte Burns, 601 S.W. 2d 370, 372 (Tex. Crim. App. 1980); Howell v. State of Texas, 563 S.W. 2d 933 (Tex. Crim. App.). Further, the right to counsel has been determined to be sufficient if counsel provided “reasonably effective assistance.” Ex Parte 13 Bratchett, 513 S.W. 2d 851, 853 (Tex. Crim. App. 1974). In Strickland v. Washington, the standard for review under Texas law of ineffective assistance of counsel requires 1) identification of the deficient acts or omissions on the part of his attorney; 2) demonstration that the acts or omissions were not the result of reasonable professional judgment; and 3) establishment that the acts or omission so prejudiced the Defendant that he was denied a fair trial. Medeiros v. State of Texas, 733 S.W. 2d 605, 607 (Tex. App. – San Antonio 1987). Using Garcia v. State as a guide, the Court of Criminal Appeals calls upon the Appellant to establish reversible ineffective assistance of counsel by demonstrating: 1) “defense counsel’s performance fell below an objective standard of reasonableness, and 2) there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001). Reviewing the record as a whole, Trial Counsel appeared to be prepared and participated in both pre-trial and trial activities. Objections were urged in a timely fashion and arguments were made in the defense of the Appellant. A review of the record does not evidence conduct or lack of action on the part of Trial Counsel that would allow a reversible error to be presented for consideration. Trial Counsel 14 called several witnesses toward the end of describing spousal abuse, financial stress and drug and alcohol use on the part of the Decedent. Trial Counsel attempted to humanize the Appellant through descriptions of her charity, church activity and emotional and spiritual transformation while in jail pending trial for her husband’s murder. See, Statement of Facts, above. The record does not support grounds that satisfy either Crawford prong, and no error was found to present as a basis of reversal or remand. Summary: Following review and consideration of pre-trial and trial activities before the Trial Court, there are no points of reversible error found. Notice to Appellant: Counsel hereby notifies Appellant that this Brief requests that the appeal be found to be frivolous and be dismissed. Along with the Brief, a motion to withdraw has been filed requesting permission of the appellate court for Counsel to withdraw from this case, that, if granted, would leave Appellant representing himself as a pro se litigant. Counsel further advises Appellant that Appellant has a right to prepare and file a pro se Brief, meaning that Appellant can prepare and file with the appellate 15 court his own pro se Brief, under her own signature, pointing out to the appellate court any errors or problems she sees in the record or any reason why Appellant feels the appeal is not frivolous. Counsel also advises Appellant of Appellant’s right to review the record before filing a pro se Brief. If Appellant desires to file a pro se Brief with the appellate court, then Appellant should immediately file a Motion for Pro Se Access to the Appellate Record with the appellate court. In the cover letter used to send Appellant a copy of this Brief, a form Motion for Pro Se Access to the Appellate Record is enclosed for this purpose. The form motion lacks only Appellant’s signature and the date, and informs Appellant that, in order to preserve and pursue his right to review the appellate record, if Appellant chooses to invoke it, Appellant must sign and date the form motion and send it on to the court of appeals within ten days of the date of the letter used to send this information to Appellant. Appellant is advised that if she presents a pro Se Brief or Motion for Pro Se Access to the Appellate Record to the appellate court [Twelfth Court of Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention: Cathy Lusk, Clerk], then she must also 1) provide a copy of his Brief to Counsel [Sten 16 Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of her Brief to the State [Rachael Patton, West 6th Street, Rusk, Texas 75785]; and 3) include in her Brief a written statement (“Certificate of Service”) that he sent copies of his Brief and/or Motion to Counsel and to the State. IX. Word Count Certificate: Counsel certifies that WORD format character count is 3,932. Sten M. Digitally signed by Sten M. Langsjoen DN: cn=Sten M. Langsjoen, o, ou, Langsjoen email=sten@langsjoenlaw.com, c=US Date: 2015.06.11 15:08:11 -05'00' _______________________________ STEN M. LANGSJOEN PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, Rebecca Barker, respectfully requests and prays that this matter be considered by the Court and that appointed counsel be allowed to withdraw herefrom and that this appeal be dismissed following the Appellant’s opportunity to respond hereto; and further, Counsel respectfully requests and prays for any and all other relief, at law or in equity, to which he may show himself justly entitled. Respectfully submitted, 17 Sten M. Digitally signed by Sten M. Langsjoen DN: cn=Sten M. Langsjoen, o, ou, Langsjoen email=sten@langsjoenlaw.com, c=US Date: 2015.06.11 15:08:42 -05'00' ______________________________ STEN M. LANGSJOEN Attorney for Appellant P.O. Box 539 Tyler, Texas 75710-0539 Telephone: (903) 531-0171 Telefax: (903) 531-0187 TBA # 11922800 e-mail: sten@langsjoenlaw.com CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Appellant’s Brief was delivered by certified mail, return receipt requested, and/or by "fax" transmission and/or by hand-delivery to the State’s attorney on June 11, 2015. Sten M. Digitally signed by Sten M. Langsjoen DN: cn=Sten M. Langsjoen, o, ou, Langsjoen email=sten@langsjoenlaw.com, c=US Date: 2015.06.11 15:09:06 -05'00' ____________________________ STEN LANGSJOEN 18 APPENDIX Contents: Indictment .............................................................................................................. Tab A Felony Agreed Plea Recommendation- No Appeal ............................................. Tab B Waiver of Jury/Guilt Innocence Jury Request – Punishment Only ..................... Tab C Jury Instruction (and Verdict) ............................................................................... Tab D 19 Judgment ................................................................................................................ Tab E Certification of Appeal ...........................................................................................Tab F Motion for New Trial ............................................................................................ Tab G Notice of Appeal .................................................................................................... Tab H 20 12-14-00345 Barker v. State Tab A 12-14-00345 Barker v. State Tab B (p. 1 of 2) 12-14-00345 Barker v. State Tab B (2 of 2) 12-14-00345 Barker v. State Tab C 12-14-00345 Barker v. State Tab D (P. 1 of 9) 12-14-00345 Barker v. State Tab D (2 of 9) 12-14-00345 Barker v. State Tab D (3 of 9) 12-14-00345 Barker v. State Tab D (4 of 9) 12-14-00345 Barker v. State Tab D (5 of 9) 12-14-00345 Barker v. State Tab D (6 of 9) 12-14-00345 Barker v. State Tab D (7 of 9) 12-14-00345 Barker v. State Tab D (8 of 9) 12-14-00345 Barker v. State Tab D (9 of 9) 12-14-00345 Barker v. State Tab E (p. 1 of 2) 12-14-00345 Barker v. State Tab E (p. 2 of 2) 12-14-00345 Barker v. State Tab F (P. 1 of 2) 12-14-00345 Barker v. State Tab F (p. 2 of 2) 12-14-00345 Barker v. State Tab G (P. 1 of 6) 12-14-00345 Barker v. State Tab G ( p. 2 of 6) 12-14-00345 Barker v. State Tab G (p. 3 of 6) 12-14-00345 Barker v. State Tab G (p. 4 of 6) 12-14-00345 Barker v. State Tab G (p. 5 of 6) 12-14-00345 Barker v. State Tab G (p. 6 of 6) 12-14-00345 Barker v. State Tab H