ACCEPTED
06-15-00061-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/20/2015 4:34:27 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00061-CR
__________________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
TEXARKANA, TEXAS
TEXAS 8/20/2015 4:34:27 PM
__________________________________________________________________
DEBBIE AUTREY
Clerk
BOBBY EUGENE CLARK, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee.
__________________________________________________________________
On Appeal from Cause No. 42863-B
In the 124th Judicial District Court of Gregg County, Texas
Honorable Alfonso Charles, Presiding Judge
__________________________________________________________________
APPELLANT’S ANDERS BRIEF
__________________________________________________________________
Jonathan Wharton
SNOW E. BUSH, JR., P.C.
Texas State Bar No. 24075764
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax (903) 753-7278
jonathanwharton1@sbcglobal.net
ATTORNEY FOR APPELLANT
BOBBY EUGENE CLARK, JR.
August 20, 2015
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant
lists the following parties affected by this appeal, and their respective appellate and
trial counsel:
Appellant: Bobby Eugene Clark, Jr.
Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
Tel. 903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Court-Appointed Appellate Counsel for Bobby Eugene Clark, Jr.
Zachary W. Davis
P.O. Box 2042
Tyler, TX 75710
Tel. 903.539.5576
Appointed Trial Counsel for Bobby Eugene Clark, Jr.
Appellee: The State of Texas
Zan Brown
Gregg County District Attorney’s Office
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Appellate Counsel for the State of Texas
Madison Hood
Gregg County District Attorney’s Office
1
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Trial Counsel for the State of Texas
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
NO REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3
INDEX OF AUTHORITIES
STATUTES
Tex. Code of Crim. Proc., Art. 4.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. Pen. Code § 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. Penal Code § 12.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. Code of Crim. Proc., Art. 38.072 . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 13
CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 17 , 18
Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . 13
Hernandez v. State, 04-09-00584-CR (Tex. App.—San Antonio 2010, no pet.) (mem.
op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . 10
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . 11
Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . 12
Schlup v. Delo, 513 U.S. 298 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . 15
Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . 10
U.S. v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . 15, 17
4
STATEMENT OF THE CASE
Bobby Eugene Clark, Jr. pled not guilty to indecency with a child and tried the
case to the court. 3 RR 7. The court convicted him and sentenced him to seven years
in the penitentiary. 3 RR 121; 4 RR 13.
NO REQUEST FOR ORAL ARGUMENT
Because there are no meaningful issues in the appeal, the court’s decisional
process would not benefit from oral argument.
ISSUES PRESENTED
1. Are there any arguably reversible errors in the record?
STATEMENT OF FACTS
Bobby Eugene Clark, Jr. was indicted on an accusation that on September 29,
2012, he engaged in sexual contact with Jane Doe (who will be referred to as “the
child”) by touching her genitals with the intent to arouse or gratify his sexual desire.
CR 4. After admonishments, he waived his right to a jury trial. CR 20; 2 RR 4-7. The
defendant pled “not guilty” and proceeded to a bench trial. 3 RR 8.
Mr. Clark is the child’s great-uncle, the brother of her grandmother. 3 RR 13.
The child’s accusation was, “Like, he put me on the couch on my side one time
and touched me in the front and the back. And he's put me on his shoulders one time,
touched me in the back and the front. And one time he had this little red Hoveround
5
[a motorized wheelchair] and put me in the middle, and he made me sit there, and I
didn't really want to.” 3 RR 15-16. She was nine years old at the time. 3 RR 16.
The child did not like Mr. Clark to begin with: he was disrespectful and rude.
3 RR 23. She was uncomfortable around him. 3 RR 23. When she rode around in his
lap on the Hoveround, he chased after a chicken, but he did not touch her
inappropriately. 3 RR 24.
The prosecution presented one specific sexual allegation. According to the
prosecution, the event took place at the child’s grandmother’s house. 3 RR 16. Mr.
Clark was staying there at some points in September of 2012. 3 RR 61. The child and
her sister would also stay there on the weekends. 3 RR 61; 3 RR 16. According to the
child, Mr. Clark “put her on his side with him.” 3 RR 16-17. He then allegedly patted
her on her private parts. 3 RR 17. The child’s grandmother and her sister were in the
house at the time; the child’s sister was in the same room. 3 RR 17.
The child’s sister testified that the night of the alleged touching, her
grandmother and Mr. Clark were sleeping in the back bedrooms. 3 RR 35-36. At
some point in the night the child came to her seeming scared and asked to sleep with
her. 3 RR 38. The child’s sister saw the child on the couch, but she did not see Mr.
Clark on the couch. 3 RR 40-41. She never saw any sexual touching, but Mr. Clark
did make her uncomfortable: “He just made us feel uncomfortable, like I felt like he
6
was watching us.” 3 RR 34. “He—he was really touchy with [the child]. He was
always wanting her to climb on him and hug on him and stuff, like she was a little
kid.” 3 RR 34.
The child’s grandmother, Barbara Tidwell, testified that she saw something that
made her uncomfortable in the early part of September: “Little Bobby was laying on
the couch and [the child] was standing at the end of the couch, and he just kind of
pulled her up on him, on his side. . . . it just made me uncomfortable. And I—I said,
‘Pony, come on, let's go outside.’” 3 RR 61-62. Mr. Clark was laying on his side and
the child was laying on her side on top of him. 3 RR 66. This event happened during
the day, and Ms. Tidwell was not sure whether it was the same incident the child was
alleging happened. 3 RR 62. Ms. Tidwell saw nothing else between Mr. Clark and the
child that caused her any concern. 3 RR 62-63. Mr. Clark never held the child or
picked her up. 3 RR 64.
The child’s father testified that he heard the child make an outcry. Per the
State’s Article 38.072 notice, the outcry was as follows: “Jane Doe 07192003 told
Brian Splawn that defendant touched Jane Doe inappropriately and that defendant
forced Jane Doe to sit on top of defendant facing defendant and that defendant forced
Jane Doe in an up and down motion while she sat on top of defendant.” CR 13. At
trial, he said that she came to him and said, “Uncle Bobby raped me.” 3 RR 45. “[S]he
7
said that he had called her over to—called her over to the couch or something and that
he had held her tight; and that she kept trying to turn over, and that he kept turning
her back over.” 3 RR 45.
[S]pecifically what she said was, once I got her calmed down to
where she could—she could talk clearly, she said that her older sister,
I guess, was sitting or—or in another area of the living room or
something, and Bobby was making her feel real uncomfortable. He
had —I guess he had already made an attempt or something—or
had—had grabbed her in an inappropriate way where she didn't feel
comfortable. She went to her older sister, asked if she could sleep
with her. And being a big sister she said no, because, you know,
whatever. And so [the child’s sister] got up and went to bed and left
her alone in the living room with Bobby.
3 RR 46. The child’s sister did not leave the living room, as she slept there in a
recliner. 3 RR 40.
The indictment stating that the touching occurred on September 29, 2012, was
based on the report the child’s father made to the police on October 17, 2012, the
morning after he heard the outcry. 3 RR 55-56; 3 RR 47-48. The defense proved that
no touching could possibly have happened on September 29 because the defendant
was in a hospital that entire day, as shown by medical records and testimony.
Defendant’s Exhibit 1 at 1-2 (medical records); 3 RR 66 (testimony from child’s
grandmother that the defendant never returned to the house after September 27); 3 RR
98 (testimony from defendant’s daughter).
8
At trial, the child’s father became certain that the incident occurred on
September 22, 2012. 3 RR 54 (“Q: But you do know specifically now today in court
that it was the 22nd that this occurred; is that what you're saying? A. Yeah, that's
exactly right. Yes, it is.”). It turned out that Mr. Clark was not at the house on that
date, either; in fact, he was at his daughter’s house. 3 RR 97 (testimony from
defendant’s daughter); 3 RR 81 (testimony from defendant); 3 RR 68 (testimony from
child’s grandmother). The 22nd was memorable because Mr. Clark had left an airplane
at the child’s house on Thursday, it was broken by the kids on Saturday, and he found
out about it when he arrived on Sunday. 3 RR 81. The defense also ruled out the
previous Saturday, the 15th, as he was at his daughter’s house then too. 3 RR 96-97
(testimony from defendant’s daughter); 3 RR 68 (testimony from child’s
grandmother); 3 RR 80 (testimony from defendant).
The court convicted Mr. Clark and sentenced him to seven years in the
penitentiary. 3 RR 121; 4 RR 13.
SUMMARY OF THE ARGUMENT
This Anders brief is accompanied by a motion to withdraw and a motion for
appointment of counsel to apply for a writ of habeas corpus. Because there is legally
sufficient evidence, there are no arguable grounds for reversal based on this record.
9
ARGUMENT
I. Possible Points of Error
A. Introduction
This appeal is from a bench trial and the trial court sentenced the defendant
within the punishment range for the crime, so there is nothing to argue. The case
was tried by a district court, so it had jurisdiction. Tex. Code of Crim. Proc., Art.
4.05. The indictment alleged a crime. CR 4 (alleging indecency with a child); Teal
v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (indictment that charges (1)
a person (2) with a crime is sufficient to confer jurisdiction). The punishment of
seven years is within the punishment range. Tex. Pen. Code § 21.11(d) (defining
the crime as alleged a second degree felony); Tex. Penal Code § 12.33 (statutory
establishment of punishment for second degree felony as imprisonment for a term
between two and twenty years).
As required by High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978),
counsel will “refer to anything in the record that might arguably support the appeal
and make ready references to the record and legal authorities.” The undersigned
counsel has (1) informed Appellant of the motion to withdraw and attendant
Anders brief, (2) provided Appellant with copies of the brief and the motions to
withdraw and be appointed as counsel for applying for a writ of habeas corpus
10
while notifying him of his various pro se rights, and (3) supplied him with a form
motion for pro se access to the appellate record (and the mailing address for the
court of appeals), to be filed within ten days, so that he may timely effectuate that
right, if he so chooses. Kelly v. State, 436 S.W.3d 313, 320 (Tex. Crim. App.
2014).
B. Possible Points of Error
1. Failure to Exclude Hearsay
The State introduced outcry statements that were allegedly made by the
complainant. 3 RR 45. The State gave two notices to the defense under Article
38.072 of the Texas Code of Criminal Procedure that it intended to use hearsay
statements of the child. One was through her father, Brian Splawn, summarized as
follows: “Jane Doe 07192003 told Brian Splawn that defendant touched Jane Doe
inappropriately and that defendant forced Jane Doe to sit on top of defendant
facing defendant and that defendant forced Jane Doe in an up and down motion
while she sat on top of defendant.” CR 13. The other was through Kelli Faussett,
who did not testify at trial and was never mentioned. CR 11.
After giving the notice, the State did not follow the rest of the procedure
required for introduction of this hearsay statement. Specifically, in order to be
admissible, the trial court must find that the statement “is reliable based on the
11
time, content, and circumstances of the statement.” Tex. Code of Crim. Pro., Art.
38.072(b)(2); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). As
discussed below in Part I.B.3, the outcry statement provided by Brian Splawn had
significant reliability problems. First, the defendant was admitted to a hospital the
date of the alleged touching and therefore could not have been present at the
child’s house when Mr. Splawn claimed it took place. Second, Mr. Splawn’s
description of the event did not match the child’s: according to her, when she rode
on the Hoveround (a motorized wheelchair) with Mr. Clark, he did not touch her
and she just sat on his lap. 3 RR 24.
At trial, Brian Splawn testified that the child said, “Uncle Bobby raped me.”
3 RR 45. “[S]he said that he had called her over to—called her over to the couch
or something and that he had held her tight; and that she kept trying to turn over,
and that he kept turning her back over.” 3 RR 45.
[S]pecifically what she said was, once I got her calmed down to
where she could—she could talk clearly, she said that her older sister,
I guess, was sitting or—or in another area of the living room or
something, and Bobby was making her feel real uncomfortable. He
had—I guess he had already made an attempt or something—or
had—had grabbed her in an inappropriate way where she didn't feel
comfortable. She went to her older sister, asked if she could sleep
with her. And being a big sister she said no, because, you know,
whatever. And so Faith got up and went to bed and left her alone in
the living room with Bobby.
12
3 RR 46. No mention was made of his claim that she sat on the defendant while
the defendant made her perform an up-and-down motion as stated in the notice.
The bulk of his testimony at trial was consistent with the child’s earlier testimony
that day, in which she said nothing about straddling the defendant with an “up-
and-down motion” or a “rape,” but instead claimed to have been touched through
her clothing. 3 RR 17-18.
Nevertheless, in a bench trial, Article 38.072 does not require a separate
hearing on the reliability of the outcry statement. Hernandez v. State,
04-09-00584-CR at *5-6 (Tex. App.—San Antonio 2010, no pet.) (mem. op.).
Further, no objection was made by defense counsel. See 3 RR 45-47. Therefore,
any hearsay objection was waived. Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991).
2. Variance Between Date in Indictment and Proof at Trial
The indictment alleged that Mr. Clark molested the child on or about
September 29, 2012. CR 4. That date was based on an report by the child’s father
to the police on October 17, 2012. 3 RR 55-56. The defense proved that no
touching could possibly have happened on September 29 because the defendant
was in a hospital that entire day, as shown by medical records and testimony.
Defendant’s Exhibit 1 at 1-2 (medical records); 3 RR 66 (testimony from child’s
13
grandmother that the defendant never returned to the house after September 27); 3
RR 98 (testimony from defendant’s daughter).
Mr. Splawn then became certain that the incident occurred on September 22,
2012. 3 RR 54 (“Q: But you do know specifically now today in court that it was
the 22nd that this occurred; is that what you're saying? A. Yeah, that's exactly
right. Yes, it is.”). It turned out that Mr. Clark was not at the house on that date,
either; in fact, he was at his daughter’s house. 3 RR 97 (testimony from
defendant’s daughter); 3 RR 81 (testimony from defendant); 3 RR 68 (testimony
from child’s grandmother). The 22nd was memorable because Mr. Clark had left an
airplane at the child’s house on Thursday, broken on Saturday, and he found out
about it when he arrived on Sunday. 3 RR 81. The defense also ruled out the
previous Saturday, the 15th, as he was at his daughter’s house then too. 3 RR 96-97
(testimony from defendant’s daughter); 3 RR 68 (testimony from child’s
grandmother); 3 RR 80 (testimony from defendant).
The prosecution ultimately abandoned its attempts to prove a specific date,
opting instead to argue that the offense happened sometime in the month of
September: “It could have been that weekend, it could have been a weekend
before. It happened in September before the Indictment—before the date presented
the Indictment—in the Indictment, and—and we're there.” 3 RR 115.
14
The prosecution is correct that it reached the goal of legal sufficiency for a
conviction. “It is well settled that the ‘on or about’ language of an indictment
allows the State to prove a date other than the one alleged in the indictment as
long as the date is anterior to the presentment of the indictment and within the
statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim.
App. 1997). That each specific date offered by the witnesses was countered by
evidence from the defense is immaterial. The witnesses are free to change their
testimony, and the finder of fact is free to believe them anyway. There is no
requirement that a conviction be based on consistent evidence, as long as “after
viewing the evidence and all reasonable inferences in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” U.S. v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (emphasis in original) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
3. Actual Innocence
There were significant problems with the case. The evidence in favor of
conviction consisted almost entirely of accusations by the child. As discussed
above in part I.B.2, the date of the alleged touching changed from weekend to
weekend in September after the defense countered each specific date, slowly
15
evolving into a general “sometime in September” accusation by the prosecution.
As discussed above in Part I.B.1, the allegation made in the outcry statement about
an “up-and-down motion” on Mr. Clark’s lap did not match the child’s testimony
at trial. The defendant denied touching her inappropriately. 3 RR 85-86. There was
a complete lack of physical evidence, such as DNA, photographs, video, hair,
fingerprints, semen, or a medical examination of the child, linking Mr. Clark to a
crime. The other person in the room at the time of the alleged touching did not
even see Mr. Clark in the room. 3 RR38-41. The only independent observations
from anyone consisted of family members saying that Mr. Clark made them
“uncomfortable.” 3 RR34; 3 RR 62. The child’s grandmother testified that “Little
Bobby was laying on the couch and [the child] was standing at the end of the
couch, and he just kind of pulled her up on him, on his side. . . . it just made me
uncomfortable. And I—I said, ‘Pony, come on, let's go outside.’” 3 RR 61-62.
This happened sometime during the day in the early part of September. 3 RR 62.
That testimony describes activity that is not a crime, it is consistent with the time
frame that Mr. Clark was actually at the house, and it is remarkably similar to the
child’s accusation about being uncomfortable on a couch with Mr. Clark. All in
all, it is certainly fair to say that some reasonable doubts could have crept into the
fact-finder’s mind.
16
But so long as the accusation is maintained through trial and there is no
conclusive evidence, such as a videotape, proving beyond a reasonable doubt that
the defendant did not commit the crime, an appellate court must affirm the
conviction. See Brooks v. State, 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010)
(“A hypothetical that illustrates a proper application of the Jackson v. Virginia
legal-sufficiency standard is robbery-at-a-convenience-store case: ‘The store clerk
at trial identifies A as the robber. A properly authenticated surveillance videotape
of the event clearly shows that B committed the robbery. But, the jury convicts A.
It was within the jury's prerogative to believe the convenience store clerk and
disregard the video. But based on all the evidence the jury's finding of guilt is not
a rational finding.’”).
Later, with additional evidence, actual innocence may be demonstrated by a
writ of habeas corpus if it is more likely than not that no reasonable juror would
have convicted. Schlup v. Delo, 513 U.S. 298, 329 (1995). On direct appeal, the
standard is whether “after viewing the evidence and all reasonable inferences in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” U.S. v.
Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (emphasis in original) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Without conclusive, irrefutable
17
evidence, such as a video showing someone else committing the crime, the
conviction stands. The finder of fact was free to disregard the problems with the
case and believe the child and her father. Brooks, 323 S.W.3d at 899 (“[T]he
reviewing court is required to defer to the jury's credibility and weight
determinations because the jury is the sole judge of the witnesses' credibility and
the weight to be given their testimony.”). As succinctly stated by Justice Scalia, “It
is age-old wisdom among mature, experienced legal thinkers that procedure
matters most: how things should be done, as opposed to what should be done. And
for judges the ‘how’ is fidelity to law. But it is a hard lesson to learn, and harder to
follow.” Antonin Scalia & Bryan A. Garner, Reading Law 348 (2012).
PRAYER
The undersigned attorney prays that the court grant him leave to withdraw
as the appellate attorney for Bobby Eugene Clark, Jr.
Respectfully submitted,
SNOW E. BUSH, JR., P.C.
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax. (903) 753-7278
E-mail: jonathanwharton1@sbcglobal.net
18
By: /s/ Jonathan Wharton
JONATHAN WHARTON
STATE BAR NO. 24075764
ATTORNEY FOR APPELLANT,
BOBBY EUGENE CLARK, JR.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has
been delivered to Zan Brown, counsel for appellee, on this the 20th day of August,
2015.
/s/ Jonathan Wharton
JONATHAN WHARTON
CERTIFICATE OF COMPLIANCE
I hereby certify that the Appellants Brief (as measured under Tex. R. App.
P. 9.4(i)(1)) contains 3,372 words as counted by Microsoft WordPerfect on this
the 20th day of August, 2015.
/s/ Jonathan Wharton
JONATHAN WHARTON
19