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