ACCEPTED
04-15-00058-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/23/2015 11:43:33 PM
KEITH HOTTLE
CLERK
NO. 04-15-00058-CR
IN THE COURT OF APPEALS FILED IN
4th COURT OF APPEALS
FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
AT SAN ANTONIO 11/23/15 11:43:33 PM
KEITH E. HOTTLE
Clerk
CYNTHIA TORRES LEAL,
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL FROM THE 81ST JUDICIAL DISTRICT COURT
FRIO COUNTY, TEXAS
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Justin A. Fischer
SBN 24065233
8000 IH-10W, Ste. 1500
San Antonio, Texas 78230
Tel. (210) 341-4070
Fax (210) 341-4459
justinfischerlaw@gmail.com
Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED
NO. 04-15-00058-CR
STATE OF TEXAS § IN THE
§
VS. § FOURTH COURT
§
CYNTHIA TORRES LEAL § OF APPEALS
__________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
__________________________________________________________________
Pursuant to TEX. R. APP. P. 38.1(a), a complete list of all parties to the trial
court’s judgment and the names and addresses of all trial and appellant counsel are
as follows:
1. Ms. Cynthia Torres Leal 4. The State of Texas
Lockhart Correctional Facility Mr. Robert F. Lipo
1400 E. MLK, Jr. Industrial Blvd. 1327 3rd St.
Lockhart, Texas 78644 Floresville, Texas 78114
Appellant Trial and Appellant Counsel
for the Appellee
2. Mr. Michael R. Zamora
6800 Park Ten Blvd., Ste. 220 N.
San Antonio, Texas 78213
Trial Counsel for the Appellee
3. Mr. Justin A. Fischer
8000 IH-10W, Suite 1500
San Antonio, Texas 78230
Appellate Counsel for the
Appellant
i
Table of Contents
Identity of Parties and Counsel ..................................................................................i
Table of Contents ..................................................................................................... ii
Index of Authorities ............................................................................................... iii
I. STATEMENT OF THE CASE .................................................................... 2
II. POINT OF ERROR ...................................................................................... 3
First Point of Error: The trial court erred in failing to order the
State to disclose the identity of the confidential informant. .......................... 3
III. STATEMENT OF FACTS ........................................................................... 4
IV. SUMMARY OF THE ARGUMENT ........................................................... 9
A. Summary of the Argument Under the First Point of Error ................ 9
V. ARGUMENT ............................................................................................. 10
A. ARGUMENT UNDER FIRST POINT OF ERROR ....................... 10
1. Restatement of First Point of Error ....................................... 10
2. Standards of Review .............................................................. 10
3. Preservation of Error .............................................................. 10
4. Discussion .............................................................................. 11
5. Harm Analysis ........................................................................ 16
VI. PRAYER .................................................................................................... 18
CERTIFICATE OF SERVICE ............................................................................ 19
CERTIFICATE OF COMPLIANCE ................................................................... 19
ii
Index of Authorities
Constitution
U.S. CONST. amend. VI .......................................................................................... 16
TEX. CONST. art. 1, § 10 ........................................................................................ 16
Cases
Anderson v. State, 817 S.W.2d 69 (Tex.Crim.App. 1991)(en banc) .............. 14, 15
Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App. 1981) .................................. 13
Ford v. State, 179 S.W.3d 203 (Tex.App.—Houston[14th], pet ref’d) ................ 14
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) ............................. 10
Olivarez v. State, 171 S.W.3d 283
(Tex.App.—Houston [14th Dist.] 2005, no pet.) .............................................. 13-14
Patterson v. State, 138 S.W.3d 643 (Tex. App.—Dallas 2004, no pet.) ............... 16
Poindexter v. State, 153 S.W.3d 403 (Tex.Crim.App. 2005) ................................ 13
Ramirez v. State, 815 S.W.2d 636 (Tex. Crim. App. 1991)(en banc) .............. 10-11
Roviaro v. United States, 353 U.S. 53 (1957) ............................................ 17, 17-18
Sanchez v. State, 98 S.W.3d 349
(Tex.App.—Houston [1st Dist.] 2003, pet. ref’d.) ............................................... 16
Taylor v. State, 604 S.W.2d 175 (Tex.Crim.App. 1980) ...................................... 10
iii
Statutes
TEX. HEATH & SAFETY CODE § 481.112(a) .......................................................... 12
TEX. HEATH & SAFETY CODE § 481.112(d) ..................................................... 12-13
Rules
TEX. R. APP. P. 33.1(a) ......................................................................................... 10
TEX. R. APP. P. 33.1(a)(1) .................................................................................... 11
TEX. R. APP. P. 33.1(a)(2) .................................................................................... 11
TEX. R. APP. P. 44.2(b) ......................................................................................... 16
TEX. R. EVID. 508 ............................................................................................. 9, 11
TEX. R. EVID. 508(a) ............................................................................................. 11
TEX. R. EVID. 508(c) ........................................................................................ 11-12
TEX. R. EVID. 508(c)(1)(A) .................................................................................. 11
TEX. R. EVID. 508(c)(1)(B) .................................................................................. 11
TEX. R. EVID. 508(c)(2) ........................................................................................ 11
TEX. R. EVID. 508(c)(2)(A) .................................................................................. 12
TEX. R. EVID. 508(c)(2)(C) .................................................................................. 17
TEX. R. EVID. 508(c)(2)(C)(i) ............................................................................... 17
TEX. R. EVID. 508(c)(2)(C)(ii) .............................................................................. 17
TEX. R. EVID. 508(c)(3) ........................................................................................ 12
iv
NO. 04-15-00058-CR
STATE OF TEXAS § IN THE
§
VS. § FOURTH COURT
§
CYNTHIA TORRES LEAL § OF APPEALS
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
To the Honorable Justices of said Court of Appeals:
Cynthia Torres Leal, Appellant, files this her Brief on the denial of her
motion to reveal confidential informants, in Cause No. 12-08-087-CRF, The State
of Texas v. Cynthia Leal, in the 81st Judicial District Court of Frio County, Texas,
The Honorable Judge Donna Reyes, Presiding.
I.
STATEMENT OF THE CASE
Appellant was charged by indictment with Possession, with intent to
delivery, a Controlled Substance Penalty Group 1, more than four grams, but less
than 200 grams, in Cause No. 12-08-00087-CRF in the 81st District Court. (CR 1.)
A hearing on the Appellant’s motion to reveal confidential informants was held on
June 6, 2013 with a ruling denying the motion to suppress on June 6, 2013. (MR
47, 54)1 Appellant plead no contest pursuant to a plea on September 30, 2014.
(PR, 8; CR 46-76.) On December 11, 2014 a sentencing hearing was held. (SR.)
The Court found the Appellant guilty and sentenced the Appellant to 20 years
confinement in the Texas Department for Corrections for. (SR 9; CR 80-81.) A
formal Judgement of Conviction was entered by the Court. (CR 80-81.) Appellant
filed her notice of appeal on January 7, 2015. (CR 92.)
1
There are three different reporter’s records filed by two different court reporters and one
supplemental reporter’s record containing the search warrant affidavit and the search warrant
from the motions hearing. When referencing the reporter’s record counsel will reference to the
hearing. So the reporter’s record for the motions hearing will be (MR), the reporter’s record for
the plea hearing will be (PR), the reporter’s record for sentencing will be (SR) and the
supplemental reporter’s record will be (SMR).
2
II.
POINT OF ERROR
First Point of Error: The trial court erred in failing to order the State to disclose
the identity of the confidential informant.
3
III.
STATEMENT OF FACTS
Search Warrant and the Confidential Informant
On August 19, 2011 Officer Pedro Salinas of the Pearsall Police Department
applied for a search warrant of the Appellant’s residence. (SMR 4-8.) Officer
Salinas decided to get a search warrant for the Appellant’s residence because in the
twenty-four hours preceding the issuance of the search warrant a confidential
informant (“CI”) had been in the Appellant’s residence and saw cocaine being
purchased. (SMR 6; MR 19.) The Officer’s CI told Salinas that he is able to call up
the Appellant and “order” cocaine. (SMR 6.) The CI stated that he had seen the
Appellant make sales of narcotics throughout Pearsall, Texas. (SMR 6.) This CI
was considered credible by Officer Salinas. (SMR 6.) This CI has previously been
used in the past and has provided accurate information leading to seizures of illegal
controlled substances and stolen property. (SMR 6.)
After receiving the CI’s information Officer Salinas performed surveillance
on the Appellant’s location and observed individuals go to the Appellant’s
residence and meet the Appellant. (SMR 6.) After getting to the Appellant’s
residence the individuals leave two or three minutes later. (SMR 6.) During four
hours of surveillance Officer Salinas observed five suspected drug transactions.
(SMR 6.) Due to Officer Salinas training and experience, the actions by the
Appellant and the individuals coming to the Appellant’s residence are “consistent
4
with the illegal sale of narcotics” and further the CI’s information was
corroborated by what Officer Salinas observed during his surveillance of the
Appellant’s residence. (SMR 6.)
Testimony at the Motion’s Hearing
Cynthia Leal
The first witness called at the motion’s hearing was the Appellant, Cynthia
Leal. (MR 5-14.) Ms. Leal testified that in the twenty-four hours prior to the
execution of the search warrant the Appellant’s husband and son, the Appellant’s
sister, Amanda Lopez, as well as a friend of the Appellant’s sister, Anna Carizales,
were in the residence. (MR 6-7, 13.) During their time in the residence there was
no paraphernalia out in the open, nor was there any other contraband such as
cocaine, methamphetamine, or marijuana out where anyone could see it. (MR 7.)
The warrant was at 10:00 a.m. on August 19, 2011 and executed at 10:50
a.m. on August 19, 2011. (SMR 11, 12.) The Appellant testified that at
approximately 8:30 in the evening of August 18th that her sister Amanda Lopez
left drugs at her house. (MR 7-8, 12.) The Appellant further testified that while
Anna Carizales was present no drugs were in the residence. (MR 7-8.) There were
also no drugs present while the Appellant’s son and husband in the house because
they were at school and at work, respectively. (MR 8.) The only people who were
5
in the house while drugs were present were the Appellant and the Appellant’s
sister, Amanda Lopez. (MR 8.)
The drugs left by Amanda Lopez were packaged in “different ziplocks” and
already packaged for distribution. (MR 9, 10.) The drugs in Lopez’s bag totaled
about an ounce and a half of different drugs. (MR 9, 10.) Along with the drugs
Lopez left cash at the Appellant’s residence. (MR 9. 10) After Lopez left the drugs
at the Appellant’s residence the Appellant placed the drugs in her drawer to
prevent the Appellant’s son from finding the drugs. (MR 11.)
Mark Leal
The second person to testify at the motions hearing was Mark Leal. (MR 15-
18.) Mr. Leal was a co-defendant to the Appellant whose case was dismissed after
the Court ordered the informant to be disclosed. (MR 3, 54.) Mr. Leal stated that in
the twenty-four hours prior to the execution of the search warrant that he didn’t
know who was in the house because he had been at work. (MR 16.) When Mr. Leal
returned from work that evening he did not see any drug paraphernalia, drugs,
marijuana, methamphetamine, or cocaine in the house. (MR 17.)
Lieutenant Peter Salinas
The last person to testify at the motions hearing was the investigating officer
Peter Salinas. (MR 18-38.) Officer Salinas testified that during his observation of
the Appellant’s residence he did not obtain any video or photographic footage of
6
the CI going into the residence during the twenty-four hours preceding the
execution of the search warrant. (MR 19.) Further, Officer Salinas testified that the
CI did not provide any photographs or video footage to corroborate his story. (MR
20.) The only corroboration of the CI’s story is that the CI went into the house and
Officer Salinas believed the CI because he was credible. (MR 20-21.) Further,
while there were inconsistencies between what the CI said and what the police
found when executing the search warrant, the CI did a controlled buy of cocaine at
the Appellant’s residence within the twenty-four hours of the search warrant being
issued. (MR 22-24.)
On questioning by the State Officer Salinas testified that the confidential
informant’s identity has not been disclosed and that further the CI was not present
when the search warrant was executed or when the Appellant was arrested. (MR
25.) Officer Salinas further testified that after the Appellant was arrested she made
a custodial statement where Appellant acknowledged the drugs were in her
residence, that the drugs belonged to the sister, and that she has been selling drugs
two months prior to the search. (MR 26.) During the Appellant’s statement she
never stated that the drugs had been planted by Anna Carizales or Amanda Lopez.
(MR 26.)
Contrary to Officer Salinas’ in-court testimony the police report attached
part of the plea paper work stated that during the Appellant’s statement the
7
Appellant identified Noelda Torres Martinez and Amanda Lopez as the people to
whom the drugs belonged. (CR 58.) Further, the police report states the Appellant
denied possession of the drugs or money, rather that the Appellant was holding for
Amanda Lopez. (CR. 58.)
8
IV.
SUMMARY OF THE ARGUMENT
A. Summary of the Argument Under the First Point of Error
Under TEX. R. EVID. 508 the government must disclose the identity of a
confidential informant if the informant’s testimony is necessary to a fair
determination of the issue of guilt or innocence. When considering what crime the
Appellant was charged with, the evidence that the government must provide to find
the Appellant guilty, compared to the evidence the confidential informant will
provide; the trial court erred in failing to order the state to disclose the confidential
informant.
9
V.
ARGUMENT
A. Argument Under First Point of Error.
1. Restatement of First Point of Error
The trial court erred in failing to order the State to disclose the identity of the
confidential informant.
2. Standard of Review
A trial court’s denial of a motion to disclose a confidential informant is
reviewed under an abuse of discretion standard. Taylor v. State, 604 S.W.2d 175,
179 (Tex.Crim.App. 1980.) Under the abuse of discretion standard the judgment of
the trial court must be affirmed unless the decision of the trial court was so clearly
wrong as to lie outside that zone within which reasonable persons might disagree.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990.) The Court must
decide whether the trial court’s ruling was arbitrary or unreasonable. Id.
3. Preservation of Error
To present a claim on appeal the party who is appealing must have preserved
the error. See TEX. R. APP. P. 33.1(a). For error to be preserved the appellant must
(1) timely object, (2) specify the grounds for the objection, and (3) obtain a ruling.
Id. Finally, the ruling of the trial court “must be conclusory; that is, it must be clear
from the record the trial judge in fact overruled the defendant’s objection or
10
otherwise error is waived. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App.
1991)(en banc).
In the present case error was preserved. Appellant’s counsel filed a Motion
to Require Disclosure of All Informers Relied Upon and for Production of Said
Informers in Open Court.” (CR 9-12.) Appellant’s motion stated that the informers
identity was necessary under the constitutional requirements of Brady and under
Texas Rule of Evidence 508(c)(2). (CR 10.) This motion and its contents satisfy
the requirements of TEX. R. APP. P. 33.1(a)(1) and (2). In addition to filing the
motion, the Appellant urged this motion in a hearing and received a ruling on his
motion. (MR 54.) The Appellant preserved her error for review.
4. Discussion
Texas Rule of Evidence 508 states that as a general rule the government:
Has a privilege to refuse to disclose a person’s identity if:
(1) the person has furnished information to a law
enforcement officer or a member of a legislative committee
or its staff conducting an investigation of a possible
violation of law; and
(2) the information relates to or assists in the
investigation.
TEX. R. EVID. 508(a). Section (c) of rule 508 contains three exceptions to this
general rule. The three exceptions are:
1. that there has been a voluntary disclosure of the
confidential informant. TEX. R. EVID. 508(c)(1)(A) and (B);
11
2. when a “Court finds a reasonable probability exists that
the informer can give testimony necessary to a fair determination of
guilt or innocence.” TEX. R. EVID. 508(c)(2)(A); and
3. when the informant’s is necessary to determine whether
the evidence was obtained in a legal manner. TEX. R. EVID. 508(c)(3).
Appellant’s trial counsel was looking for disclosure under the second exception.
During argument counsel for the State said “[defense counsel] hasn’t shown how
the identity of that person is going aid in his defense. (MR 42.) In response trial
counsel said:
I completely agree with Ms. Pol. The only thing I would say is how in
the world could I do that? How could I meet this burden? I mean I’ve
scoured Pearsall with my investigator to try to find who the
confidential informant was….Because otherwise, how can we
necessary to a fair determination -- that’s exactly what I’m trying to
do.
(MR 44-45.)
Possession of a Controlled Substance
The State charged the Appellant with possession with intent to deliver a
controlled substance, penalty group 1, 4-200 grams, mainly cocaine. (CR 1.) To
prove this offense the State was required to prove the Appellant knowingly
manufactures, delivers, or possesses with intent to deliver a controlled substance
listed in Penalty Group 1, and the amount of the controlled substance to which the
offense applies, by aggregate weight, including adulterants or dilutants, four grams
or more but less than 200 grams. TEX. HEALTH & SAFETY CODE § 481.112(a) and
12
(d). The indictment shows the State was going on possession portion of the
offense. (CR 1.)
To prove that the Appellant possessed the controlled substance the State
must show that, “(1) the accused exercised control, management, or care over the
substance; and (2) the accused knew the matter possessed contraband.” Poindexter
v. State, 153 S.W.3d 403, 405 (Tex.Crim.App. 2005.) Further, the evidence must
show that the Appellant’s connection with the drug “was more than just fortuitous”
there must be some “affirmative link.” Id. at 406. “When the accused is not in
exclusive possession of the place where the substance is found, it cannot be
concluded that the accused had knowledge of and control over the contraband
unless there are additional independent facts and circumstances which
affirmatively link the accused to the contraband.” Id. (quoting Deshong v. State,
625 S.W.2d 327, 329 (Tex.Crim.App. 1981.)
To prove an affirmative link Courts have come up with a non-exhaustive list
of factors:
(1) the defendant's presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant's proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether
the defendant made incriminating statements when arrested; (7)
whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place
13
where the drugs were found; (12) whether the place where the drugs
were found was enclosed; (13) whether the defendant was found with
a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt.
Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.—Houston [14th Dist.] 2005, no
pet.)
The Confidential Informant was a Material Witness
If an informant “was an eyewitness to an alleged offense then that informant
can testimony necessary to a fair determination of the issues of guilt or innocence.”
Ford v. State, 179 S.W.3d 203, 210 (Tex.App.—Houston[14th], pet ref’d);
Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991)(en banc). If the
information provided by the informant “is used to only establish probable cause for
a search warrant and the informant was neither a participant in the offense for
which the defendant is charged, nor present when the search warrant was executed,
the identity of the informant need not be disclosed because his testimony is not
essential to a fair determination of guilt.” Ford, 179 S.W.3d at 210.
The testimony and the police’s own actions established that the Appellant
was not in exclusive possession of the residence. The Appellant testified that her
husband, her son, her sister, and her sister’s friend were present in the house in the
twenty-four hours prior to the execution of the search warrant. (MR 6-7, 12, 13.)
Further, the police arrested, and the State charged the Appellant’s husband with the
same charge as the appellant. (MR 3.) The Appellant has never claimed possession
14
of the drugs stating during testimony that the cocaine was the Appellant’s sister’s
cocaine. (MR 8-10.) Further in the Appellant’s statement to the police after arrest
the Appellant maintained that the drugs belonged to Noelda Torres Martinez and
Amanda Lopez. (CR 58.)
The Court of Criminal Appeals has said that “a defendant is only required to
make a plausible showing that the informer could give testimony necessary to a
fair determination of guilt. Anderson, 817 S.W.2d at 72. Some of the factors to
show an affirmative link between the Appellant and the narcotics go against
Appellant, they also show the CI is a material witness. The CI is only person who
saw the Appellant in sole possession of the cocaine. The search warrant affidavit
state that “the [Appellant] usually only sells larger amounts and advised usually no
less than an “8ball”. CI advised an “8ball” is approximately 3.5 grams of cocaine
in rock and powder form of the cocaine.” (SMR 6.) During the hearing on the
motion Officer Salinas that the CI did a controlled buy of $20.00 worth of cocaine.
(MR 28.) Salinas further testified that to his belief all of the confidential
informants buys were made at the door. (MR 28.) Due to the Appellant being in the
non-exclusive possession of the residence where the drugs were found there must
be some other affirmative links to show the Appellant possessed the cocaine. The
one witness who can verify that the Appellant possessed, or did not possess the
cocaine was the confidential informant. The confidential informant was a
15
material witness necessary to making a fair determination of the issues of guilt
or innocence.
5. Harm Analysis
The review of a trial court’s ruling on a denial of a motion to disclose a
confidential informant is under an abuse of discretion standard and any error must
be disregarded unless the error affected the defendant’s substantial rights. TEX. R.
APP. P. 44.2(b); Sanchez v. State, 98 S.W.3d 349, 356-357 (Tex.App.—Houston
[1st Dist.] 2003, pet. ref’d.)(stating that this error is a non-constitutional error
governed by the harmless error standard of Tex. R. App. P. 44.2(b).) A defendant’s
substantial rights are affected when the error had a substantial and injurious effect
or influence on the judgment. Id. at 357.
A criminal defendant has a federal and state constitutional right to confront
and cross examine witnesses. U.S. CONST. amend VI; TEX. CONST. art. 1, § 10.
Allowing the State to proceed to trial and have the Appellant identified through an
unknown CI, when that CI is material to the guilt or innocence of the Appellant
would be violative of the Appellant’s confrontation rights. The Dallas Court of
Appeals has held that when a defendant wants the CI disclosed because the CI
“could have identified other occupants who ‘could have been responsible for the
contraband’ was nothing more than mere conjecture or supposition unsupported by
16
any evidence.” Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.—Dallas 2004,
no pet.)
This case is the inverse of Patterson, the Appellant knows and has told the
arresting officers whose cocaine was found in her residence, Amanda Lopez and
Noelda Martinez. (CR 58.) Here, the CI is the only person who can testify that the
Appellant, possessed with intent to deliver narcotics. This necessary fact goes to
the heart of every possession of a controlled substance prosecution. This is not
mere conjecture or supposition, this is a concrete fact that goes to a fair
determination of guilt or innocence.
Harm is shown in the remedy in that the remedy found in TEX. R. EVID.
508(c)(2)(C) doesn’t allow the citizen accused get the identity of the CI. Rather, all
that is required is that the court conduct an in camera hearing via affidavit or
testimony. TEX. R. EVID. 508(c)(2)(C)(i). Further, Counsel for the citizen accused
is not allowed to attend such an in camera review so there is no back door
disclosure to a criminal defendant of the CI identity. TEX. R. EVID.
508(c)(2)(C)(ii). The Supreme Court has said that this “privilege recognizes the
obligation of citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their anonymity,
encourages them to perform that obligation.” Roviaro v. United States, 353 U.S.
53, 59 (1957). However, the Supreme Court went on to say that “[w]here the
17
disclosure of an informer’s identity, or of the contents of his communication, is
relevant and helpful to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way.” Id. at 60-61. The trial
court’s failure to disclose the identity of the informant harmed the Appellant’s
substantial rights and the trial court’s refusal to disclose the identity of the
informant was an abuse of discretion.
V.
PRAYER
For the reasons state above, Appellant, Cynthia Torres Leal, submits that the
trial court committed reversible error in failing to grant the motion to reveal
confidential informant. Appellant prays that the judgment and sentence be
reversed and that this cause be remanded for further proceedings.
RESPECTFULLY SUBMITTED
/s/Justin A. Fischer______________
Justin A. Fischer
SBN 24065233
8000 IH-10W, Ste. 1500
San Antonio, Texas 78230
Tel. (210) 341-4070
Fax (210) 341-4459
Attorney for Appellant
18
CERTIFICATE OF SERVICE
I certify that on November 23, 2015, a true and correct copy of Appellant’s
Brief was served on the 81st District Attorney’s office via the eServe function of
the efiling service provider.
/s/Justin A. Fischer__________
Justin A. Fischer
CERTIFICATE OF COMPLIANCE
I certify that this brief was prepared with Microsoft Word 2013, and that,
according to that program’s word-count function, the sections covered by TRAP
9.4(i)(1) contain 3,354 words.
/s/Justin A. Fischer__________
Justin A. Fischer
19