PD-0143-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
August 25, 2015 Transmitted 8/24/2015 9:24:57 PM
Accepted 8/25/2015 7:49:22 AM
ABEL ACOSTA
No. PD-0143-15 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
CYNTHIA AMBROSE
Petitioner / Appellee
V.
THE STATE OF TEXAS
Respondent / Appellant
ON DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS, SAN ANTONIO
CAUSE NO. 04-13-00788-CR
APPEALED FROM THE 226TH JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
CAUSE NO. 2011-CR-10002
STATE’S BRIEF IN RESPONSE
NICOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
S. Patrick Ballantyne
Assistant Criminal District Attorney
Bexar County, Texas
State Bar # 24053759
101 W. Nueva St., 7th floor
San Antonio, Texas 78205
210-335-2311 (phone)
ORAL ARGUMENT GRANTED sballantyne@bexar.org
IDENTIFICATION OF PARTIES AND COUNSEL
Representing the State of Texas at Trial and on Appeal:
S. Patrick Ballantyne
Assistant Criminal District Attorney
Bexar County, Texas
State Bar # 24053759
101 W. Nueva St., 7th floor
San Antonio, Texas 78205
210-335-2404 (phone)
210-335-2773 (facsimile)
sballantyne@bexar.org
Representing Petitionerr Cynthia Ambrose at the Punishment Phase of Trial and
on Appeal
Dayna L. Jones
State Bar # 24049450
206 E. Locust Street
San Antonio, Texas 78212
210-255-825 (phone)
210-249-0116 (facsimile)
DaynaJ33@gmail.com
Representing Petitioner at the Guilt-Innocence Phase of Trial
J. Scott Sullivan
State Bar # 19483350
4 Dominion Drive, Suite 250
San Antonio, Texas 78257
210-227-6000 (phone)
1
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL ............................................................................1
TABLE OF CONTENTS ....................................................................................................................2
INDEX OF AUTHORITIES ...............................................................................................................3
ON CITATIONS TO THE RECORD ..................................................................................................4
STATEMENT OF THE CASE ............................................................................................................4
STATEMENT OF THE FACTS ..........................................................................................................6
POST-VERDICT PROCEEDINGS ................................................................................................ 13
ON STATE’S APPEAL TO THE FOURTH COURT OF APPEALS ................................................ 15
SUMMARY OF THE ARGUMENT ................................................................................................. 16
ARGUMENT ................................................................................................................................... 18
I. First Ground for Review – In which Petitioner asks this Court to abandon the C.C.P.
Article 36.19 / Almanza harm standards where a trial court grants a motion for new
trial based on jury charge error. ............................................................................................ 18
1. Article 36.19 statutorily mandates that the egregious harm standard be applied to
review of jury charge error claimed after judgment in the trial court and on
appeal. ............................................................................................................................... 19
2. In Igo v. State, this Court correctly held that the Almanza egregious harm standard
applies to review of a trial court’s ruling on a motion for new trial claiming jury
charge errors. .................................................................................................................... 21
II. Second Ground for Review – In which Petitioner contends that appellate courts must
defer to a trial court’s conclusion on the issue of egregious harm........................................... 26
1. The issue of egregious harm is a mixed question of law and fact which the appellate
court was correct to review de novo. .................................................................................. 27
2. The trial court did not make findings of fact or conduct a meaningful harm analysis to
which the court of appeals was obliged to defer. .................................................................... 31
III. Third Ground for Review – In which Petitioner complains that the Court of Appeals
did not properly conduct its egregious harm analysis. ........................................................... 33
1. The court of appeals conducted a proper and thoughtful egregious harm analysis
and reached the correct conclusion.................................................................................... 35
CONCLUSION AND PRAYER ........................................................................................................ 37
CERTIFICATE OF WORD COUNT ................................................................................................. 38
CERTIFICATE OF SERVICE .......................................................................................................... 38
2
INDEX OF AUTHORITIES
Cases
Absalon v. State, 460 S.W.3d 158 (Tex. Crim. App. 2015) .................................... 28
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ............................passim
Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. 2012) ..................... 30, 32, 34
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ................................. 32
Ex parte Wheeler, 203 S.W.3d 317 (2006) ............................................................. 29
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) ............................... 30, 34
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) .................... 27, 28, 29, 31
Hunter v. Statew, 955 S.W.3d 102 (Tex. Crim. App. 1997) ................................... 29
Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006) .....................................passim
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ..................................... 29
Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) ......................................... 26
Oregon v. Kennedy, 456 S.W.667 (1982) ............................................................... 29
Rent v. State, 982 S.W.2d 382 (Tex. Crim. App. 1998) .......................................... 22
Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990) ........................................... 34
State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio 2015) ......... 16, 26, 35
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006)....................................... 25
State v. McKnight, 213 S.W.3d 915 (Tex. Crim. App. 2007) ..................... 20, 23, 24
Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013)............................... 19, 34
Statutes
Tex. Code Crim. P. Art. 36.19............................................................... 18, 19, 20, 26
Tex. Code Crim. P. Art. 38.14................................................................................. 13
Tex. Code Crim. P. Art. 44.01................................................................................. 25
Tex. Penal Code § 39.03 ........................................................................................... 4
Tex. R. App. P. 21.3 ................................................................................................ 21
3
ON CITATIONS TO THE RECORD
Throughout this brief, reference to the Reporter’s Record will be indicated
by the citation to the volume number, then the letters “RR,” followed by the page
number. For example, (3 RR 25) refers to the 25 th page of the third volume of the
reporter’s record.
References to the Clerk’s Record will be indicated by the page number
preceded by the letters “CR” for the initial Clerk’s Record, “CR Supp.” for the
First Supplemental Clerks Record, or “CR Supp. 2 nd” for the Second Supplemental
Clerk’s Record. For example, (CR 51) refers to the 51 st page of the initial Clerk’s
Record.
STATEMENT OF THE CASE
This Court granted discretionary review of the decision of the Fourth Court
of Appeals reversing the trial court’s granting of a motion for new trial. In the
226th District Court for Bexar County, Judge Sid L. Harle presiding, a jury
convicted Petitioner of the offense of Official Oppression1, a Class A
misdemeanor. (CR 31-32) The trial court assessed punishment at one year
confinement, probated for a term of two years, with 30 days confinement to be
served as a condition of community supervision. (CR 31-32)
1
Tex. Penal Code § 39.03
4
After trial, Petitioner filed her motion for new trial, which argued that a new
trial should be granted due to (1) the trial court’s failure to instruct the jury on the
accomplice witness rule of Article 38.14 of the Code of Criminal Procedure, (2)
the insufficiency of the non-accomplice corroborating evidence, (3) ineffective
assistance of trial counsel, (4) the interest of justice, and (5) the cumulative effect
of unspecified errors. (CR 69-90). After an evidentiary hearing, the trial court
granted a new trial on the basis of its own failure to sua sponte instruct the jury as
to the accomplice witness rule. All other grounds were denied. (6 RR 3)
The State requested findings of fact and conclusions of law from the trial
court. (CR 91) Petitioner submitted proposed findings and conclusions. The State
then filed objections to Petitioner’s proposals (CR 94-99) and contemporaneously
submitted its own proposed findings and conclusions. (CR 100-102) The trial
court signed Petitioner’s findings and conclusions without amendment. (CR Supp.
2nd 6-11) The State then timely filed its notice of appeal. (CR 104)
The Fourth Court of Appeals reversed the trial court’s grant of a new trial in
a published opinion. State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio
2014, pet. granted). On appeal, the State contended that the trial court’s grant of
new trial should be vacated, because (1) the witness in question was not an
accomplice, and, (2) alternatively, Petitioner was not egregiously harmed by the
court’s failure to instruct on the accomplice-witness rule. The court of appeals did
5
not reach the merits of the State’s first issue and instead assumed without deciding
that Petitioner was entitled to an accomplice witness instruction. 457 S.W.3d at
160. The court below then conducted the required egregious harm analysis and
concluded that Petitioner was not egregiously harmed by any error resulting from
the trial court’s failure to include an accomplice witness corroboration instruction.
457 S.W.3d at 162.
Petitioner then sought this court’s discretionary review of the court of
appeals’ decision. Discretionary review was granted with oral argument permitted.
STATEMENT OF THE FACTS
The evidence presented at the trial of this case tells the story of a
kindergarten teacher, Petitioner, who disciplined a five year old “bully” by
directing other students to line up and strike the student so that he might know how
it feels to be bullied. After hearing the evidence, the jury deliberated for 42
minutes before returning a verdict of guilty on the sole count of Official
Oppression. (3 RR 167-68).
In May of 2012, Cynthia Ambrose (Petitioner) and Barbara Ramirez (the
witness at issue on appeal) both taught kindergarten at Salinas Elementary in the
Judson Independent School District in San Antonio. (3 RR 12-13) Both teachers
had received training on the proper discipline of students in the classroom. (3 RR
6
14) They were trained that Judson I.S.D. is a non-corporal punishment district
which prohibits the physical discipline of students. (3 RR 14-15) Judson I.S.D.
policy expressly prohibits teachers from striking students or allowing students to
strike one another as a means of discipline. (3 RR 15) To address students with
behavioral issues, Salinas Elementary used a “buddy system,” by which a teacher
could send an unruly student to another classroom for a period of time. (3 RR 15-
16) If further discipline was needed, the student would then be sent to the school’s
principal, Jeffrey Large, or vice-principal, Gerrie Spellmann. (3 RR 16)
On May 2, 2012, A.N. was a five year old student in Ms. Ramirez’s
kindergarten class. (3 RR 13) A.N. had been exhibiting disruptive behavioral
problems culminating in his striking another student on the back. (3 RR 17-18)
Although Ms. Ramirez had never taken A.N. to another teacher’s classroom
before, she decided that day to use the buddy system and escort the child to
Petitioner’s classroom. (3 RR 18) Petitioner had a reputation as a strong
disciplinarian and was a more experienced teacher than Ms. Ramirez. (3 RR 23)
Once arrived, Ms. Ramirez explained to Petitioner that A.N. had been “bullying
the other student” and asked if the child could be left in Petitioner’s classroom. (3
RR 19) Petitioner instructed A.N. to sit next to her desk and then repeatedly asked
the child why he was bullying other students. (3 RR 19-20) When A.N. did not
respond, Petitioner asked, “How would you like for other students to bully you?”
7
(3 RR 20) A.N. again gave no response, and Petitioner turned to the other students
in the class and said, “Come on, boys and girls, let’s line up and bully A.N..” (3
RR 20) A few of the students rose, and Petitioner said, “Come on, let’s hit him,
let’s bully – let’s bully him.” (3 RR 20) Ms. Ramirez remembered approximately
seven students striking A.N.. 2 When the first students offered only a “rub” or
“pat,” Petitioner instructed the others to “hit him harder,” and they did so. (3 RR
20-21) Finally, one girl struck A.N. hard enough that Petitioner stopped the
beating. (3 RR 21)
In the course of this episode, Ms. Ramirez took no affirmative act to assist,
encourage, aid, or solicit the improper discipline she witnessed. Of three witnesses
who were in the classroom during the incident – Ms. Ramirez, the child A.N., and
Petitioner – none described any act by Ms. Ramirez taken to promote Petitioner’s
mistreatment. When asked what was going through her head during the incident,
Ms. Ramirez replied: “It happened so fast, I was shocked. I did not realize this was
– I can’t – I can’t explain it, I was in a state of shock.” (3 RR 21) After the
incident, Ms. Ramirez returned to her classroom and shortly after sent a female
student to retrieve A.N.. (3 RR 22) Ms. Ramirez did not immediately report the
incident. Although she knew that the law required her to report within 48 hours, (3
2
A.N. testified that he remembered 21 students hitting him (3 RR 59),
while Appellee insisted that only one rogue girl struck the child. (3 RR
118)
8
RR 26) Ms. Ramirez waited a full two weeks to inform school administrators of
the abuse. (3 RR 22-23). Given that Ms. Ramirez’s testimony would constitute a
judicial admission to the criminal offense of failing to timely report child abuse 3,
the State extended her immunity from prosecution in exchange for her truthful
testimony. (3 RR 26) (4 RR 24)
Ms. Ramirez was finally prompted to report the incident when, at a Friday
staff meeting, it was suggested that a child with behavioral issues be placed in
Petitioner’s class “because Ms. Ambrose was more of a stern teacher.” (3 RR 23).
The next Monday, Ms. Ramirez overheard Petitioner instructing a student who was
pinched by another student to “pinch him back.” (3 RR 24) Ms. Ramirez then felt
compelled to report the mistreatment of A.N. to the school’s administration. (3 RR
25)
When Ms. Ramirez reported the incident, an administrative investigation
was initiated. (3 RR 91, 107) This investigation was conducted by Principal Jeffrey
Large and Vice-principal Gerrie Spellmann. After hearing Ms. Ramirez’s account
of the classroom abuse, Mr. Large was “very surprised” as he had “never heard of
anything like this before in my 30 years of education.” (3 RR 102) Petitioner was
called to the administrative offices and asked about the events Ms. Ramirez had
3
Texas Family Code § 261.109 provides that a professional’s failure to
report child abuse within 48 hours is a Class A misdemeanor or State
Jail Felony, depending on the circumstances.
9
reported. Ms. Spellmann testified that Petitioner then freely admitted to instructing
other students to hit A.N.:
“She let us know that she had instructed her students to hit the
students on the arm, but not too hard so that the student would know
how it felt to be bullied.” (3 RR 92) “She stated that – we asked how
many students had been struck [sic] and she stated only about two or
three. But the next student hit too hard and that she had it stopped.” (3
RR 93)
Mr. Large also testified that Petitioner initially admitted to the mistreatment:
“Well, of course, I asked her, you know, what had happened in the
classroom, what had been reported to me and I remember her saying
something that she had instructed some students to – to – or basically
she told me that Ms. Ramirez had brought a student over to her class
because she said the student – Ms. Ramirez had said the student was
bullying. And she took the student into her classroom and she said
something like making the student feel like what it was like to be
bullied himself. And told us that she instructed the students to hit the
other student but not hard. She said that I believe two or three students
hit the student and then a fourth student hit too hard and she stopped it
immediately after that.” (3 RR 108)
Ms. Spellmann interviewed the children who were in the classroom that day,
and – although the statements of the children did not come into evidence – she
testified that these interviews confirmed Ms. Ramirez’s account and Petitioner’s
admissions. (3 RR 94)
After Ms. Ramirez finally reported the mistreatment to school
administrators, word of the incident began making its way around the school. (3
RR 66) Christine Wienstel – another teacher at Salinas Elementary – and Sharon
10
Hons – the school’s librarian – both witnessed Petitioner venting her displeasure in
the teachers’ lounge.
Ms. Wienstel testified that Petitioner “was pissed, someone had told on her
about something and that the bitch was going to come out, something to that
nature.” (3 RR 67-68) Petitioner also stated “that the Mexican was going to come
out and that payback was a bitch.” (3 RR 69)
Ms. Hons recalled encountering Petitioner in the teachers’ lounge: “Ms.
Ambrose walked in, I just asked her how she was doing and she said she was -- she
was pissed, she was upset. And I asked her why and she just said someone had
tattledtaled on her.” (3 RR 74) Ms. Hons also recalled Petitioner saying, “payback
was a bitch and that it was going to bring out the Mexican in her.” (3 RR 75)
In addition to the testimony of the educators, the State also presented the
testimony of A.N., the child-victim of Petitioner’s mistreatment, and A.N.’s
brothers, W.N. and B.N. Of the three brothers, only A.N. was in the classroom at
the time of the mistreatment. W.N. and B.N. both heard A.N. describe the incident
on the school bus later that same day.
A.N. was seven years old by the time of his testimony at trial. (3 RR 56) The
child had difficulty remembering the events of the day in question, but he did
remember being in trouble with Ms. Ramirez and being hit on the back by a
11
number of other children. (3 RR 58-59) He also remembered the hitting stopped
after a girl student hit him hard. (3 RR 60)
W.N., A.N.’s older brother, was 12 years old at the time of his testimony. (3
RR 79) He testified that they rode the school bus home together and that he had a
conversation with A.N. on the bus in which A.N. told him that other students hit
him. (3 RR 81) B.N., 9 years old at the time of trial, told the jury that he also
remembered A.N. telling him that day that a teacher told students to hit his back
and that the students did. (3 RR 84)
The only witness called by the defense was Petitioner, Cynthia Ambrose. (3
RR 114) Petitioner testified that Ms. Ramirez brought A.N. to Petitioner’s
classroom because the child was misbehaving. (3 RR 117) Petitioner denied
directing any students to strike A.N.; she recounted the events as follows:
I turned around and told my class what [A.N.] had done and what kind
of consequences that he should get. And some were saying time out,
one of them did say he should get hit by the kids that he hit. So then I
say, Does anybody want to show him what it feels like? And I was
expecting the kids to all say yes and I would turn around and tell him,
You see, would you like for us to hit you? But before I knew it one of
my girls got up and hit him. And the only reason I knew is because I
heard it, because I didn’t see it. And when I turned around being, you
know, when one gets up others will get up. There was a few that were
up around her, the one that had hit [A.N.], but I was like, Get away
from him. And I don’t know, I mean, that’s when it stopped. And it
really did happen fast like Ms. Ramirez said. (3 RR 117-18)
At the close of evidence, the parties conferred with the trial court on the jury
charge. (3 RR 138-40) Neither party made a request that the court instruct the jury
12
on the requirement of accomplice witness corroboration pursuant to Code of
Criminal Procedure article 38.14, and no such instruction was included in the
court’s charge. After deliberating for 42 minutes, the jury returned a verdict of
guilty.
POST-VERDICT PROCEEDINGS
After the jury returned a verdict of guilty, the trial court ordered a pre-
sentence investigation. Defendant then hired new counsel for the punishment phase
of trial. On August 20, 2013, the trial court described Appellee’s conduct as
“absolutely the parents’ worst nightmare” (4 RR 23) and sentenced Appellee to
one year confinement in the Bexar County Jail, probated for a term of two years,
Appellee filed her notice of appeal and motion for new trial. By her motion,
Appellee claimed a new trial was warranted due to (1) the trial court’s failure to
instruct the jury on the accomplice witness rule of Article 38.14 of the Code of
Criminal Procedure, (2) the insufficiency of the non-accomplice corroborating
evidence, (3) ineffective assistance of trial counsel, (4) the interest of justice, and
(5) the cumulative effect of unspecified errors. (CR 69-90).
A hearing on the motion for new trial was held on October 10, 2013. Among
the witnesses called by Appellee was her trial counsel, Scott Sullivan. (5 RR 37)
Through his testimony, Mr. Sullivan demonstrated an understanding of the
accomplice witness rule commensurate with his 20 years as a criminal practitioner.
13
(5 RR 62-63) Mr. Sullivan did not believe that any of the testimony – by either
Appellee or Barbara Ramirez – indicated that Ms. Ramirez took any affirmative act
to promote the offense of Official Oppression. (5 RR 64) Mr. Sullivan also agreed
that failing to timely report the abuse of a child was not a lesser included offense of
Official Oppression. (5 RR 64-65) Mr. Sullivan testified that he considered
requesting an accomplice witness instruction but decided against it. (5 RR 65) He
reasoned that he would not be able to convince the court that Ramirez was an
accomplice of law or fact, and in this case “The corroborating evidence is excellent
for the State.” (5 RR 65)
Moreover, Mr. Sullivan testified that the inclusion of an accomplice witness
instruction would be contrary to the defense’s theory that no offense ever occurred.
(5 RR 66) Labeling Ms. Ramirez an accomplice would be tantamount to admitting
that some offense did occur. (5 RR 66) As the following exchange reveals:
[Prosecutor] Would asking for that accomplice witness instruction, in your
professional opinion, almost telegraph to the jury that this
offense did happen?
[Mr. Sullivan] Yes.
[Prosecutor] To have an accomplice you have to have an offense; right?
[Mr. Sullivan] It is similar to an admission that it happened. And it was a
dichotomy we faced the whole trial and that is having to say it
happened because we damned Ms. Ramirez so much. So we
almost would have to do that in some ways, but I didn't want to
finally finish it off with another full jury charge again
14
reminding the jury that, yeah, she's -- they're partners in crime. I
don't want them to -- to be partners in crime you've got to have
a crime.
[Prosecutor] So would asking for an accomplice witness instruction in your
professional assessment be consistent or inconsistent with your
defense theory and strategy in this case?
[Mr. Sullivan] It would be inconsistent with all of our defenses.
(5 RR 65-66)
At the conclusion of the evidentiary hearing, the trial court granted Appellee
a new trial on the basis of its failure to instruct the jury as to the accomplice
witness rule. All other grounds were denied. (7 RR 3)
Following the trial court’s ruling, the State requested findings of facts and
conclusions of law from the trial court. (CR 91) Appellee submitted proposed
findings and conclusions, and these were presented to the trial court and signed by
the judge without substantive amendment. (CR 2 nd Supp. 6) Unaware of the
presentment and entry of these findings and conclusions, State filed objections to
Appellee’s proposals (CR 94-99) and contemporaneously submitted its own
proposed findings and conclusions. (CR 100-102) The State when took appeal of
the trial court’s grant of a new trial.
ON STATE’S APPEAL TO THE FOURTH COURT OF APPEALS
On appeal in the Fourth Court of Appeals, the State claimed that the trial
court erred in granting the motion for new trial for two reasons. First, the State
15
contended that no accomplice-witness instruction was required because the witness
in question was not an accomplice either as a matter of law or as a question of fact.
Second, the State contended in the alternative that, even if the witness in question
were an accomplice, Petitioner was not egregiously harmed by the absence of an
accomplice witness instruction.
The court of appeals declined to address the State’s first issue and instead
examined whether Petitioner suffered the egregious harm required to reverse a
judgment on the basis of unpreserved jury charge error. The court of appeals
conducted its analysis by correctly explicating the egregious harm standard of
Almanza and Article 36.19 of the Code of Criminal Procedure both generally and
in the context of accomplice witness instructions. The court then conducted a
thorough examination of the evidence presented by the both the State and defense,
the opening statements and arguments, and the jury charge as given. Concluding
that Petitioner was not egregiously harmed by the absence of an accomplice-
witness instruction, the court of appeals reversed the trial court’s grant of a new
trial in a published opinion with one justice writing separately in concurrence.
State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio 2015, pet. granted). 4
SUMMARY OF THE ARGUMENT
4
The opinion of the court of appeals is examined in greater detail under
the State’s response to Petitioner’s third ground for review infra.
16
I. First Ground for Review – In which Petitioner asks this Court to
abandon the C.C.P. Article 36.19 / Almanza harm standards where a
trial court grants a motion for new trial based on jury charge error.
Petitioner contends that “a reviewing court should defer to the lower court’s
factual findings and review only for an abuse of discretion.” (Petitioner’s Brief at
15) This ground is without merit, because (1) it is contrary to the standard of
review statutorily mandated by Article 36.19, as interpreted by this Court in
Almanza v. State5, and (2) the issue was decided by the clear correct precedent of
this Court in Igo v. State6.
II. Second Ground for Review – In which Petitioner contends that
appellate courts must defer to a trial court’s conclusion on the issue of
egregious harm.
In her second ground for review, Petitioner complains that the appellate
court below erred by conducting an egregious harm analysis that did not defer to
the trial court’s findings of fact and conclusions of law. This ground is without
merit, because (1) appellate courts are never bound by a trial court’s conclusion on
a mixed question of law and fact that does not turn on credibility such as egregious
harm; and (2) the trial court did not make findings of fact or conduct a meaningful
harm analysis to which the court of appeals was obliged to defer.
5
686 S.W.2d 157 (Tex. Crim. App. 1984).
6
210 S.W.3d 645 (Tex. Crim. App. 2006).
17
III. Third Ground for Review – In which Petitioner complains that the Court
of Appeals did not properly conduct its egregious harm analysis.
In her third ground for review, Petitioner complains that the appellate court
below did not properly conduct its egregious harm analysis. This ground is
without merit, because the court of appeals applied the correct standard of review,
conducted a proper egregious harm analysis, and arrived at the correct conclusion
that Petitioner did not demonstrate egregious harm.
ARGUMENT
I. First Ground for Review – In which Petitioner asks this Court to
abandon the C.C.P. Article 36.19 / Almanza harm standards where a
trial court grants a motion for new trial based on jury charge error.
In her first ground for review, Petitioner asks this court to abandon the
Almanza harm standards where a trial court has granted a motion for new trial
based on jury charge error and made findings of fact and conclusions of law to the
effect that a defendant was egregiously harmed by the error. Petitioner contends
that “a reviewing court should defer to the lower court’s factual findings and
review only for an abuse of discretion.” (Petitioner’s Brief at 15) This ground is
without merit, because (1) it is contrary to the standard of review statutorily
mandated by Article 36.19, as interpreted by this Court in Almanza v. State 7, and
7
686 S.W.2d 157 (Tex. Crim. App. 1984).
18
(2) the issue was decided by the clear correct precedent of this Court in Igo v.
State8.
Applicable Law
1. Article 36.19 statutorily mandates that the egregious harm standard
be applied to review of jury charge error claimed after judgment in
the trial court and on appeal.
In considering the Almanza harm standards, it is important to remember that
Almanza is a case of statutory interpretation. The egregious harm standard is not
simply a judicially-crafted rule of economy; it is mandated by Article 36.19 of the
Code of Criminal Procedure which governs courts’ review of jury charge error.
“The framework in Almanza is not a court-made rule.” Zamora v. State, 411
S.W.3d 504, 512 (Tex. Crim. App. 2013).
In authoring this court’s opinion in Almanza, Judge Clinton provided a very
thorough and well-researched history of this court’s adventures in jury charge
review which culminated in the legislature’s enactment of Article 36.19. “After
researching Texas statutory and decisional law from 1857 forward, we have
concluded that Article 36.19 actually separately contains the standards for both
fundamental error and ordinary reversible error.” 686 S.W.2d at 171. Where error
is preserved by timely objection, the defendant need only demonstrate some harm.
Id. “On the other hand, if no proper objection was made at trial and the accused
8
210 S.W.3d 645 (Tex. Crim. App. 2006).
19
must claim that the error was ‘fundamental,’ he will obtain a reversal only if the
error is so egregious and created such harm that he ‘has not had a fair and impartial
trial’ – in short ‘egregious harm.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985).
Although the Almanza Court in interpreting Article 36.19 described the
statute’s particular harm standards as ambiguous and requiring resort to extra-
textual sources for interpretation, there is no ambiguity in the text as to when
Article 36.19 will apply. By its plain terms – in referring to situations involving
charge error where a “judgment shall not be reversed unless…” – Article 36.19
applies when a court is being asked to reverse the judgment in a criminal case.
Accordingly, the Almanza harm standards are mandated by Article 36.19 when a
defendant is asking a trial court to reverse the judgment of a jury 9 by a motion for
new trial and where either party seeks appellate review the trial court’s ruling. See
Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006) and State v. McKnight, 213
S.W.3d 915 (Tex. Crim. App. 2007), discussed infra.
9
Although the article is entitled, “Review of Charge on Appeal,” it is the
plain meaning of the text of a statute that governs interpretation, and the
statute’s title is an extratextual consideration that will only be considered
as a factor to resolve ambiguity. See Chase v. State, 448 S.W.3d 6, 11
(Tex. Crim. App. 2014); Tex. Gov’t Code § 311.023. .
20
2. In Igo v. State, this Court correctly held that the Almanza egregious
harm standard applies to review of a trial court’s ruling on a motion
for new trial claiming jury charge errors.
In Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006), this Court
confronted the following issue and arrived at the stated conclusion:
When a defendant complains on appeal that the trial court erroneously
denied a motion for new trial that alleged a claim of jury charge error,
is he entitled to have the underlying jury-charge error reviewed under
a different harm standard than would have applied to that error absent
a motion for new trial? We answer that question “no.”
210 S.W.3d at 646.
Petitioner’s first issue in the instant case may be stated identically with only
a couple of modifications:
When the State complains on appeal that the trial court erroneously
granted a motion for new trial, is the defendant entitled to have the
underlying jury-charge error reviewed under a different harm standard
than would have applied to that error absent a motion for new trial?
This issue should also be answered in the negative on the basis of the
reasoning set forth in the Igo decision. Presiding Judge Keller’s majority opinion
decisively held that the proper standard of review for jury charge error first raised
in a motion for new trial “is Article 36.19, as construed in Almanza.” 210 S.W.3d
at 647. Although Igo (like Petitioner here) contended that review was limited to an
abuse of discretion standard pursuant to Rule of Appellate Procedure 21.3, this
Court soundly rejected that argument. “A statute cannot be superseded by a rule,”
and “when a statute directs what treatment an appellate court must give to a
21
particular type of error, a rule of appellate procedure cannot be employed to
circumvent the statutory requirement.” Id., citing Rent v. State, 982 S.W.2d 382
(Tex. Crim. App. 1998).
The Igo opinion also recognized that the egregious harm standard – besides
being mandated by Article 36.19 – advances the “policy of encouraging the timely
correction of errors” embodied by statutes and rules governing review of jury
charge error. 210 S.W.3d at 647. In an appeal from a trial court’s ruling on a
motion for new trial, this policy is not merely a rule of economy but necessary to a
properly functioning system of appellate review:
If appellant were correct, defendants would no longer be required to
preserve a jury-charge error at trial so long as the issue was raised in a
motion for new trial because any error in the charge could be said to
“misdirect” the jury. […] Appellant’s reasoning would essentially
exempt any jury-charge error from any sort of harmless-error analysis
even when the erroneous instruction might have been fixed had the
defendant brought the error to the trial court's attention. Such a result
would essentially eviscerate the two- tiered harm analysis required by
statute and do away with the requirement that egregious harm be
shown when the defendant has failed to timely urge an objection.
Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (emphasis
in original).
Following the Igo decision, this Court was presented with a circumstance
such as the instant case, where the State appealed the trial court’s grant of a new
trial based on jury charge error. McKnight v. State, 213 S.W.3d 915 (Tex. Crim.
22
App. 2007) (per curiam), 10 This Court remanded the case to the court of appeals,
because that court did not have the benefit of the Igo opinion, where the Court
“held that the Almanza harm analysis does apply to jury-charge errors presented in
a motion for new trial.” McKnight, 213 S.W.3d at 916. The McKnight opinion
informs the Court’s decision in the instant appeal both as a concise reification of
the holding in Igo and an application of the Almanza standards where a trial court
grants a defendant’s motion for new trial.
Application of Law
After assuming but not deciding that the trial court erred in failing to sua
sponte instruct the jury on the accomplice witness rule, the appellate court below
was required by Article 36.19, as construed in Almanza, to conduct an egregious
harm analysis. Like the appellant in Igo, Petitioner is attempting to use the
motion-for-new-trial procedure to circumvent the harm analysis mandated by
Article 36.19. She makes no claim that Article 36.19 is unconstitutional or
superseded by some other authority. Neither does she propose any standard of
review to replace Almanza other than the abuse of discretion standard already
rejected in Igo.
Petitioner distinguishes Igo from the present case by pointing out that the
defendant in that Igo was denied his motion for new trial whereas Petitioner was
10
Petitioner describes McKnight as a case where the trial court denied
the motion for new trial. (Petitioner’s Brief at 11) That is incorrect.
23
granted hers. Exactly why she believes this materially distinguishes the standards
of review or deference to be applied is unclear, but Petitioner essentially argues
that it’s different when it’s the defendant who wins below. This argument
disregards both the reasoning in Igo and its straightforward application in
McKnight to a circumstance identical to her own – where the State appealed the
trial court’s grant of a new trial on unpreserved jury charge instruction error.
Petitioner contends that the trial court’s entry of findings of fact and
conclusions of law necessitate the complete deference of appellate courts to the
trial court’s ultimate conclusion on egregious harm. However – as fully briefed
under the State’s response to Petitioner’s second ground for review infra – the trial
court in this case did not make any findings of fact related to credibility or
demeanor to which the appellate court was obliged to defer. If a trial court’s
egregious harm analysis could ever obviate any aspect of a review by a higher
court, this is not that case.
Although abandoning the Almanza egregious harm standard would certainly
benefit this Petitioner in this appeal, this Court’s decision must be more globally
considerate of the consequences of such a radical policy shift. It can be safely
assumed that most claims of jury charge error brought by way of a motion for new
trial are overruled by the trial court. Where those claims were not raised before the
jury was charged, the trial court’s denial of the motion for new trial carries a
24
conclusion – either explicit or implicit – that the defendant did not suffer egregious
harm. If Petitioner gets her way from this court, such defendants would be
essentially forestopped in raising their claims of charge error on appeal, for – even
if error can be demonstrated – the appellate court would be bound to defer to the
trial court’s determination that egregious harm occurred. Such a scheme would
place defendants in the awkward and precarious position of either (1) raising the
issue in a motion for new trial and risking foreclosure of meaningful appellate
review, or (2) saving the issue for their direct appeal and forgoing the opportunity
to develop a record in support of their claims at the hearing on their motion for
new trial.
In a circumstance such as this one – where the State appeals the trial court’s
grant of a new trial based on unpreserved jury charge instruction – the State is
entitled by Article 44.01 of the Code of Criminal Procedure to meaningful
appellate reviewed of claimed errors. See State v. Cullen, 195 S.W.3d 696, 698
(Tex. Crim. App. 2006) (Trial court may not frustrate “meaningful review of the
decision to grant a motion to suppress.”) Yet, resorting to an abuse of discretion or
highly deferential standard of review, as Petitioner prays of this Court, would
deprive the State of the statutorily mandated entitlement of meaningful review of
when a trial court grants a new trial.
25
Justice Barnard’s concurring opinion below in this case expressed concern
“about the effect of the standard on the trial court’s authority to grant a new trial in
a case such as this.” 457 S.W.3d 154, 162 (Barnard, J., concurring). Thid concern
recognizes what this Court has already acknowledged: that egregious harm “is a
difficult standard to meet.” 11
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013). However, the limitation that this standard places on a trial court’s
authority is not a judicially-crafted rule which may be set aside in equity; it is a
statutory mandate that must be applied correctly by all courts – including trial
courts – when reviewing whether unpreserved jury charge error warrants reversal
of a jury’s judgment.
The Almanza harm standards are required by Article 36.19 – both at the trial
court level and on and appellate review – and they may only be modified or
obviated by an enactment of the legislature. Accordingly, Petitioner’s first ground
for review is without merit and should be overruled.
II. Second Ground for Review – In which Petitioner contends that appellate
courts must defer to a trial court’s conclusion on the issue of egregious
harm.
11
The fact that egregious harm is difficult standard (and thus more
easily decided) is presumably why the appellate court below chose it as
the dispositive issue instead of deciding the substantive issue of whether
an accomplice witness instruction was even required.
26
In her second ground for review, Petitioner complains that the appellate
court below erred by conducting an egregious harm analysis that did not defer to
the trial court’s findings of fact and conclusions of law. This ground is without
merit, because (1) appellate courts are never bound by a trial court’s conclusion on
a mixed question of law and fact that does not turn on credibility such as egregious
harm; and (2) the trial court did not make findings of fact or conduct a meaningful
harm analysis to which the court of appeals was obliged to defer.
1. The issue of egregious harm is a mixed question of law and fact which
the appellate court was correct to review de novo.
Texas courts do not seem to have addressed the level of deference owed to a
trial court’s ruling on the issue of whether a defendant suffered egregious harm as
result of jury charge error. This is understandable as trial courts are not often
called upon to engage in harm analyses. However, applying principals explained
by this Court in Guzman v. State12 and subsequent cases, it is clear that egregious
harm involves an application of facts to the law, also called a “mixed question of
law and fact.” Because the egregious harm analysis in this case does not turn on a
question of credibility or demeanor, the court of appeals was correct to review it de
novo.
12
955 S.W.2d 85 (Tex. Crim. App. 1997)
27
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), identified three
types of questions which a reviewing court may be called upon to answer which
are not “pure” questions of law:
First, there are questions which entail the trial court’s determination of
historical facts or which are based on an evaluation of credibility and demeanor.
Appellate courts should afford almost total deference to a trial court’s findings on
such issues. Guzman, at 89.
Second, there are applications of law to fact, also known as “mixed
questions of law and fact,” “where the resolution turns on an evaluation of
credibility or demeanor.” In reviewing such credibility-based mixed questions,
appellate courts afford similarly great deference to a trial court’s rulings where it
assessments are supported by the record. Id.
Third, a there are mixed questions of law and fact where the ultimate
question does not turn on a matter of credibility or demeanor. These questions
appellate courts review de novo. Id. “Mixed questions of law and fact that do not
turn on the credibility of the witness, as well as all purely legal questions will be
reviewed de novo.” Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App.
2015)
Of course the Guzman Court’s promulgation of these three classes of review
is more descriptive than categorical; “This is about as comprehensive a statement
28
of the applicable standards as we can provide.” Guzman at 89. For example, a
question may involve a credibility assessment but not “turn on” that assessment.
In further clarification, this Court has also said that a “question ‘turns’ on an
evaluation of the credibility of the witnesses when the testimony of one or more
witnesses, if believed, is always enough to add up to what is needed to decide the
substantive issue.” Loserth v. State, 963 S.W.2d 770, 774 (Tex. Crim. App. 1998)
(emphasis in original); citing Hunter v. Statew, 955 S.W.3d 102, 105 n.4 (Tex.
Crim. App. 1997). “But the fact that credibility and demeanor are factors, even
important factors, in the trial court’s assessment does not necessarily mean the
mixed question falls within the second category identified in Guzman.” Loserth v.
State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).
Petitioner relies on this Court’s decision in Ex parte Wheeler, 203 S.W.3d
317 (2006), and the Supreme Court’s decision in Oregon v. Kennedy, 456 S.W.667
(1982), for the proposition that the court of appeals and this Court should defer to
the conclusion of egregious harm reached by the trial court. However, both
Wheeler and Kennedy presented issues that turned on a trial court’s determination
that a prosecutor did not act in bad faith when causing a mistrial. The analyses in
both cases came down to the trial judge being in a better position to gauge the
credibility of the prosecutor’s assertion that his intent in asking an improper
question was not to goad the defense into requesting a mistrial. In such a
29
circumstance, deference to the trial court’s credibility determination is absolutely
justified.
The egregious harm analysis is a different animal entirely. Like other
standards of harm, it is naturally an appellate standard of review. In situation like
this one – where a trial court is called upon to consider whether a defendant was
egregiously harmed by jury charge error – the analysis sits in a limited remove
from its natural appellate environment. Although credibility and demeanor may be
factors informing the analysis, it will be a rare situation where the question turns
on such findings.
In conducting an egregious harm analysis, “courts evaluate harm by taking
into account (1) the entire jury charge; (2) the state of the evidence, including
contested issues; (3) arguments of counsel; and (4) any other relevant information
contained in the record as a whole.” Gelinas v. State, 398 S.W.3d 703, 705-06
(Tex. Crim. App. 2013). In the context of accomplice-witness instruction error,
“the reviewing court must take the entire record into account to assess whether the
jury, had it been properly instructed on the law requiring corroboration of
accomplice-witness testimony, would have found the corroborating evidence so
unconvincing in fact as to render the State’s overall case for conviction clearly and
significantly less persuasive.” Casanova v. State, 383 S.W.3d 530, 534 (Tex. Crim.
App. 2012).
30
While this analysis may involve assessments of the relative strength
corroborating evidence insomuch as it tends to connect the defendant to the
offense, it does not turn on an assessment of credibility or demeanor. Thus, the
trial court will not generally be so better positioned that the appellate court must
afford it the total deference urged by Petitioner. Accordingly, egregious harm falls
within the third category of Guzman questions, and the court of appeals was
correct to review the question de novo.
2. The trial court did not make findings of fact or conduct a meaningful
harm analysis to which the court of appeals was obliged to defer.
In this case, the findings of fact and conclusions of law drafted by Petitioner
and adopted by the trial court did not contain any egregious harm analysis or any
facts which would inform an egregious harm analysis. (CR Supp. 2 nd 6-11) The
adopted findings and conclusions recite some law applicable to the egregious harm
analysis and summarily conclude that Petitioner was caused egregious harm by the
failure of the court to instruct the jury on the accomplice witness rule. (CR Supp.
2nd 10) And, that is it. There are no findings of fact informing the egregious harm
analysis, and there are no credibility determinations whatsoever.
In the absent of explicit findings, Petitioner contends that the trial court
made “implicit” findings to which the court of appeals was obliged to defer.
However, she does not identify these implicit findings except to imply herself that
31
the trial court must have found the testimony of all of the State’s corroborating
witnesses “so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.” 13 (Petitioner’s Brief at 15).
This assertion is contrary to a fair reading of the record on the whole and the swift
verdict rendered by the jury. Moreover, appellate courts are under no obligation to
defer to a trial court’s implicit findings where they cannot be discerned from the
record:
Although reviewing courts should also grant deference to ‘implicit
factual findings’ that support the trial court’s ultimate ruling, they
cannot do so if they are unable to determine from the record what the
trial court’s implied factual findings are.
Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)
To obtain deference from the appellate courts in an analysis as involved as
egregious harm, a trial court must actually conduct such an analysis and enter
findings of fact relevant to its conclusions. Merely stating that a defendant was
egregiously harmed is a bare conclusion of law that can not serve to frustrate the
reviewing function of the courts of appeals. The reality of this case is that the trial
court did not actually engage in a meaningful egregious harm analysis. The court
of appeals did and its holding should be affirmed. Accordingly, Petitioner’s
second ground for review is without merit and should be overruled.
13
Casanova v. State, 383 S.W.3d 530, 534 (Tex. Crim. App. 2012).
32
III. Third Ground for Review – In which Petitioner complains that the Court
of Appeals did not properly conduct its egregious harm analysis.
In her third ground for review, Petitioner complains that the appellate court
below did not properly conduct its egregious harm analysis. This ground is
without merit, because the court of appeals applied the correct standard of review,
conducted a proper egregious harm analysis, and arrived at the correct conclusion
that Petitioner did not demonstrate egregious harm.
Applicable Law
As discusses supra, where a defendant fails to preserve jury charge error on
an issue which the trial court is required by law to instruct the jury on, reviewing
courts are to apply the egregious harm standard announced in Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984). The tenets of the egregious harm
standard has become very familiar to appellate jurists and advocates in the last 30
years.
Under the Almanza standard, a defendant muse demonstrate that she suffered
actual, rather than merely theoretical, harm from jury charge error. Dickey v. State,
22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Errors that result in egregious harm
are those that affect “the very basis of the case,” “deprive the defendant of a
valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175 S.W.3d
738, 749 (Tex. Crim. App. 2005).
33
With regard to accomplice-witness instructions, this Court “has definitively
held that the procedural framework of Almanza applies to accomplice-witness
instructions, both as a matter of law and fact[.]” Zamora v. State, 411 S.W.3d 504,
512 (Tex. Crim. App. 2013). “Under Almanza, courts evaluate harm by taking into
account (1) the entire jury charge; (2) the state of the evidence, including contested
issues; (3) arguments of counsel; and (4) any other relevant information contained
in the record as a whole.” Gelinas v. State, 398 S.W.3d 703, 705-06 (Tex. Crim.
App. 2013). “[T]he reviewing court must take the entire record into account to
assess whether the jury, had it been properly instructed on the law requiring
corroboration of accomplice-witness testimony, would have found the
corroborating evidence so unconvincing in fact as to render the State’s overall case
for conviction clearly and significantly less persuasive.” Casanova v. State, 383
S.W.3d 530, 534 (Tex. Crim. App. 2012). This should not be confused with the
analysis for legal sufficiency of the evidence supporting a conviction. This Court
has “long held that corroborative evidence need not be legally sufficient in itself to
establish a defendant’s guilt.” Casanova, at 538. However, the failure to give an
accomplice witness instruction will not cause egregious harm if other evidence
standing alone would be sufficient to sustain a conviction. Solis v. State, 792
S.W.2d 95, 98 (Tex. Crim. App. 1990).
Application of Law
34
1. The court of appeals conducted a proper and thoughtful egregious harm
analysis and reached the correct conclusion.
In rendering its opinion that Petitioner was not egregiously harmed by the
absence of an accomplice-witness instruction, the court of appeals conducted a
considerate analysis, adhering to the correct applicable standards of law. State v.
Ambrose, 457 S.W.3d 154, 160-162 (Tex. App. – San Antonio 2015, pet. granted).
The court of appeals below began its analysis by narrowing the issue to the
one disputed element of the offense: whether Petitioner intended that the other
children strike A.N. “We therefore focus our analysis on the evidence ‘tending to
connect’ [Petitioner’s] intent to the intent alleged in the charge – that [Petitioner]
intended that other students strike A.N. 457 S.W.3d at 160-161.
The court below then proceeded with an examination of the state of the
evidence and noted foremost that “The non-accomplice evidence in the record is
relatively strong.” Id. at 161. The court observed that Petitioner initially admitted
to directing the students to strike A.N. when questioned by her principal and vice-
principal. Later, at trial, Petitioner denied directing the hits but testified that she
asked the students whether the class should show A.N. what it feels like to be
bullied. The court correctly noted that both of these admissions tended to connect
Petitioner to the identified requisite intent. Id.
The court below next observed that the “jury charge and the State’s
arguments emphasized the strength of the corroborating evidence and the weakness
35
of [Petitioner’s] contradictory testimony. Id. The State focused on the
corroborating nature of the witness testimony presented in its case while the
defense argued that Ms. Ramirez was a “psychopathic liar.” The jury’s swift
rendering of a guilty verdict indicates that they found the theory of corroboration
advanced by the State to be persuasive. Thus, the court below concluded that the
jury would not have found the State’s case “clearly and significantly less
persuasive had the jury been instructed on the accomplice-witness rule.” Id. at
161-162.
Although Petitioner complains of the contradictory testimony presented by
A.N. – a six year old child testifying about events that occurred over a year earlier
– that the court of appeals deliberately avoided reliance on A.N.’s testimony in
evaluating the relative strength of the corroborating evidence. Even setting aside
the testimony of Ms. Ramirez (the alleged accomplice witness) and A.N. the
corroborating evidence tending to connect Petitioner with the offense was
“relatively strong” and more than tended to connect Petitioner to the alleged
offense.
The detailed and considered egregious harm analysis conducted by the court
of appeals stands in stark contrast to the lack of analysis on the part of the trial
court. The court of appeals applied the proper standards of law in a considerate
manner and reached the correct conclusion that Petitioner was not egregiously
36
harmed by the absence of an accomplice-instruction. Accordingly, Petitioner’s
third ground for review is without merit and should be overruled.
CONCLUSION AND PRAYER
BY THE FORGOING REASONS AND AUTHORITIES, the State of Texas
prays this Honorable Court affirm the decision of the Fourth Court of Appeals.
Should this court find merit in Petitioner’s issues, the State prays that this case be
remanded to the Fourth Court of Appeals so that that court may consider the
undecided issue of whether the witness in question was actually an accomplice to
Petitioner’s criminal conduct.
NICOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
______________________________
S. Patrick Ballantyne
Assistant Criminal District Attorney
Bexar County, Texas
State Bar # 24053759
101 W. Nueva St., 7th floor
San Antonio, Texas 78205
210-335-2277 (phone)
sballantyne@bexar.org
37
CERTIFICATE OF WORD COUNT
The undersigned counsel certifies pursuant to Texas Rule of Appellate
Procedure 9.4(i)(2)(B), that the State’s Brief in Response filed this day contains
9,126 words. Counsel relies for his certification on the word count of the computer
program used to prepare this document: Microsoft Word 2013.
______________________
S. Patrick Ballantyne
CERTIFICATE OF SERVICE
I, S. Patrick Ballantyne, hereby certify that a true and correct copy of this
Brief was transmitted this 24th day of August, 2015, to Dayna L. Jones
(daynaj33@gmail.com), attorney of record for Petitioner, by email and electronic
service through a court-approved eFiling service.
______________________
S. Patrick Ballantyne
38