PD-0016-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/19/2015 4:12:19 PM
Accepted 2/20/2015 8:05:59 AM
ABEL ACOSTA
NO. PD-0016-15 CLERK
IN THE FIRST COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
_____________________________________________
RAUL RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________________________
On Appeal from the First Court of Appeals
Cause no. 01-12-00688-CR
and the 178th District Court
Harris County, Texas
Cause no. 1348372
______________________________________________
RAUL RODRIGUEZ’S REPLY TO
THE STATE’S PETITION FOR DISCRETIONARY REVIEW
________________________________________________
Stradley, Davis & Reynal LLP
Neal Davis
Bill Stradley
Jonathan Landers, of counsel
917 Franklin Street, Suite 600
Houston, Texas 77002
February 20, 2015
Telephone: (713) 227-4444
Facsimile: (713) 760-7140
Email:Neal@SDRFirm.com
RODRIGUEZ’S ATTORNEYS
I. Introduction
Unsatisfied with the unanimous opinion of the First Court Appeals in this
case, Petitioner requests discretionary review. However, Petitioner fails to
sufficiently articulate or “amplify the reasons for granting review” under Texas
Rule of Appellate Procedure 66.3. See Texas R. App. Pro. 68.4 (explaining the
petitioner should “amplify” the reasons for granting review). Rather, Petitioner
merely disagrees with the appeals court’s decision, which is insufficient to grant
discretionary review.
Petitioner’s arguments are rife with errors and omissions. For example,
Petitioner fails to explain that it was the State that specifically requested the
patently incorrect jury instruction limiting Rodriguez’s ability to invoke self-
defense. Petitioner fails to mention that the State waited until after Rodriguez was
convicted and appealed before the State argued he was precluded from self-
defense. If anyone was at fault for “sandbagging,” to use Petitioner’s term, it was
the State when the State submitted a clearly erroneous instruction limiting self-
defense, the State argued for its inclusion in the jury charge over defense objection,
and then the State turned around on appeal and claimed that it did not matter the
charge was erroneous because Rodriguez was not entitled to self-defense.
1
II. Factual and Legal Background
Rodriguez relies upon the unanimous appeals court’s recitation of the facts,
and additional facts will be cited to the extent relevant to support the appeals court.
See Rodriguez v. State, 01-12-00688-CR, 2014 WL 7205226, at 1-7 (Tex. App.—
Houston [1st Dist.] Dec. 18, 2014) (pet. Filed).
Petitioner concedes on appeal that the jury charge was erroneous but claims
it had no effect on the jury. See State’s Pet. at 4-7. As the appeals court explained,
though, the jury charge error affected the “very basis” of Rodriguez’s self-defense
claim. Rodriguez, 2014 WL 7205226, at 15. The instruction submitted to the jury
was reproduced in the opinion. Id. at 8-9.
This erroneous instruction did not just have some minor problems; it had
absolutely no basis in law. The State-requested instruction replaced page 11 of the
court's original proposed jury instructions that properly explained the law under
Texas Penal Code sections 9.31 and 9.32. 9 Ct.R. at 110; 29 Ct.R. at 3; Ct. Ex. 1 at
11. 1
The inclusion of this incorrect charge was the State and trial court’s apparent
attempt to address self-defense when a Concealed Handgun License (CHL) is
involved. 5 Ct.R. at 59, 156-57; 18 Ct.R. 10-21 (printout of Rodriguez's CHL
1
Section 9.31 applies to self-defense generally. Section 9.32 applies to deadly force in self
defense.
2
license and application). Section 46.02 does not apply to a person who “is carrying
a concealed handgun and a valid [concealed carry] license.” Texas Penal Code §
46.15. This means that Rodriguez was entitled to act in self-defense, even if he
carried a weapon outside of his property, so long as he complied with this statute.2
This is far from what the jury was instructed, as Petitioner concedes. The
first paragraph of the excerpted charge almost tracks Texas law, but it did not
include the language from section 46.02 concerning being “on the person's own
premises or premises under the person's control.” Further, and much more
damning, the end of the first paragraph ended with “in violation of the law,”
which jurors must have read to refer to the second and third paragraphs where the
law ("a person commits an offense . . . ") is stated.
The second and third paragraphs refer to the law regarding the offense of
unlawful carrying of a handgun by a license holder. Under section 46.035, a
license holder commits an offense if he “intentionally fails to conceal the
2
Rodriguez believes it is unclear that section 46.15 requires a CHL holder to actually possess his
license in order to rely on self-defense. If this were the plain meaning, it would lead to an absurd
result. Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("There is, of course, a
legitimate exception to this plain meaning rule: where application of a statute's plain language
would lead to absurd consequences that the Legislature could not possibly have intended, we
should not apply the language literally.") Surely the Legislature did not intend to limit the right
of CHL holders to protect themselves based on whether they possessed their actual license on
their person at the time. This would mean that a person could defend themselves outside of his
property if they had his license on them, but could not, for example, if the license was sitting a
few hundred feet away in his home, car, or office.
3
handgun,” or if “the person carried a handgun and was intoxicated.” Id. at §
46.035(a), (c); Cl.R.at 2368. Section 46.035 had nothing to do with a proper jury
instruction under section 9.31(b)(5)(A).
Unlike the first paragraph in the jury charge, which stated the use of force
was not justified if the defendant “was failing” to conceal the handgun while he
sought an explanation, the second paragraph stated a defendant committed an
offense if “he failed” to conceal the handgun, without any mention of the required
nexus to the defendant seeking an explanation of his differences. Also, the second
paragraph failed to reference the absolute defense to section 46.02 if one meets the
requirements of Section 46.15(b)(6).
The third paragraph, dealing with intoxication, has no place in a self-defense
instruction, as intoxication does not preclude one from relying on self-defense.
The final application paragraph, rather than instruct the jury that self-defense
did not apply if the defendant sought an explanation from the other person while he
was violating section 46.02, instructed the jury that if the defendant violated “the
law stated above, before seeking an explanation from or discussion with the other
person . . . then you will find against the defendant on the issue of self-defense.”
Cl.R.at 2368 (emphasis added). This application paragraph instructed the jury what
“you will find” if conditions precedent are met.
4
As the Court of Appeals found, this unlawful jury charge harmed Rodriguez
because: (1) the prosecution introduced evidence, over objection, that he was
taking multiple psychiatric and pain medications on the night in question (which
the jury asked about in a note during their deliberations), Rodriguez, 2014 WL
7205226, at 14; 4 Ct.R. at 210-212, (2) the prosecution specifically argued to the
jury that his gun was not concealed and misstated the law regarding self-defense,
Rodriguez, 2014 WL 7205226, at 13, and (3) the jury focused on the question of
whether Rodriguez’s gun was concealed, even asking the trial court if a holster had
been “taken into evidence.” Id. The evidence shows that the jury evaluated, and
possibly relied upon, the unlawful instruction denying Rodriguez his only avenue
of defense—self-defense. The appeals court correctly held that “all of
the Almanza factors point toward the conclusion that the charge errors
harmed Rodriguez.” Id. at 14.
A. Petitioner’s first ground seeks to change this Court’s error preservation
jurisprudence and misstates the appeals court’s holding on this issue.
Petitioner claims that the Rodriguez opinion, if not reversed, “will encourage
parties to sandbag trial courts by raising vague objections but precise appellate
complaints.” See State’s Pet. at 8. No legal authority is cited to support this
proposition, perhaps because it does not make much sense. Defense counsel,
recognizing a jury charge error will affect the very core of the defense, will not
5
intentionally vaguely object to that error and risk losing the more favorable “some
harm” standard of harm on appeal. Further, if anything would encourage
sandbagging, it would be putting the appellate imprimatur on what the State did in
Rodriguez’s case. While the defense made a lengthy objection to the jury charge at
trial, it was the State that submitted, it was the State that argued for the incorrect
charge, and it was the State that for the first time on appeal claimed Rodriguez was
not entitled to self-defense as a matter of law. Rodriguez, 2014 WL 7205226, at 14
(noting that the State raised this claim for the first time on appeal).
Petitioner incorrectly claims the appeals court misread the record regarding
the preservation issue. See State’s Pet. at 10. After finding error in the jury
charge, the appeals court continued to apply the Almanza framework by
considering whether charge error was preserved. Rodriguez, 2014 WL 7205226, at
10-11. The appeals court quoted at length from the record. Id. After noting that
the State and trial court understood the nature of the objection, the appeals court
explained that “[a]lthough Rodriguez did not parse the instruction and detail each
of the errors in it, we conclude that his objection was sufficient to preserve the
error he complains of on appeal.” Id. (citing Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012); Lankston, 827 S.W.2d at 909; State v. Rosseau, 396
S.W.3d 550, 555 (Tex. Crim. App. 2013).
6
The Court’s ruling was no doubt correct. As the appeals court noted, the
defense argued the instruction permitted the jury to reject Rodriguez’s self-defense
claim based on testimony regarding his failure to conceal his guns earlier in the
night. Rodriguez, 2014 WL 7205226 at 11. The prosecution incorrectly responded
that the charge “tracks the statute” because there was “some evidence that . . . the
defendant [had] a concealed handgun license.” 9 Ct.R. 113. This response shows
the prosecution understood the nature of the objection. The prosecution stated the
charge had a legal basis, and that the evidence, including that from Fornols,
required the submission of the charge to the jury. 9 Ct.R. at 112. The trial court
understood the objection. 3 Id. at 112-13.
In an attempt to to twist the appeals court’s finding on this issue, Petitioner
claims the appeals court “said that the appellant’s invocation of Fornols’ testimony
apprised the trial court of the incorrect tense in the fifth paragraph of the erroneous
charge.” See State’s Pet. at 10. This is simply a misunderstanding of Rodriguez’s
argument “that the instructions would allow the jury to incorrectly reject his claim
of self-defense based on testimony regarding his alleged failure to conceal during
his visit to Fornols's house at 8:30 p.m.” Rodriguez, 2014 WL 7205226, at 11.
3
Even if an objection is imperfect, it is “sufficient to preserve error if the record indicates that
the trial judge understood the appellant's request to encompass the matters about which the
appellant now complains.” Bennett v. State , 235 S.W.3d 241, 243 (Tex. Crim. App. 2007)
7
Petitioner takes aim at this Court’s well-established jurisprudence directing
that error preservation “is not an inflexible concept.” Thomas v. State, 408 S.W.3d
877, 884 (Tex. Crim. App. 2013). Petitioner does not believe that “all a party has
to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know
what he wants, why he thinks himself entitled to it, and to do so clearly enough for
the judge to understand him at a time when the trial court is in a proper position to
do something about it.” Id. (citation omitted). Instead, Petitioner falsely contends
a party must parse jury instructions and detail all errors in them exactly as they do
on appeal. See State’s Pet. at 11-12.
In support, Petitioner cites Taylor v. State, 769 S.W.2d 232 (Tex. Crim. App.
1989). But in Taylor, this Court reversed the appeals court because the defendant
had preserved jury charge error (and he preserved it on a more vague objection
than Rodriguez). Taylor, 769 S.W.2d at 233. Taylor actually supports that
Rodriguez preserved error because he pointed out the specific portion of the charge
in error (the discussing-the-differences portion), and he explained what was wrong
with the charge.
But even if Rodriguez had not properly preserved error, the outcome of his
appeal would clearly be the same. Had the appeals court found the error was not
preserved, the standard of harm would be “egregious harm.” See Heins v. State,
157 S.W.3d 457 (Tex.App.-Houston[14th Dist.]2004) (egregious harm resulted
8
when the trial court failed to include the language of “premises under the person’s
control” in the exception to seeking-an-explanation in a self-defense case, since
“both the basis of the case and the main defensive theory, that is, whether appellant
murdered her husband or shot him in self-defense, were affected by this error.”).
In Rodriguez's case, the jury charge error affected both the basis of the case
and the sole defense. Indeed, the appeals court specifically explained that the error
in this case affected “the very basis of the case.” Rodriguez, 2014 WL 7205226, at
15 (citing Almanza, 686 S.W.2d at 172) (emphasis added). The “very basis of the
case” language from Almanza is one of the tests this Court has adopted for
addressing egregious harm. Almanza, 686 S.W.2d at 172. In using this language,
the Rodriguez opinion clearly indicated that egregious harm resulted from the
State’s unlawful jury instruction.
Discretionary review should therefore be denied on this ground.
B. Petitioner’s second ground is incorrectly premised on the appeals court not
conducting a harm analysis.
Petitioner incorrectly claims the appeals court found the unlawful jury
instruction harmful solely because it was confusing. See State’s Pet. at 12-16
(claiming the appeals court misapplied Reeves v. State, 420 S.W.3d 812 (Tex.
Crim. App. 2013)). But the appeals court performed the detailed harm analysis
9
that this Court established in Almanza. See Rodriguez, 2014 WL 7205226, at 12-
14.
To begin its analysis the Court of Appeals first explained the four factors
relevant to the harm analysis: “(1) the entire jury charge; (2) the state of the
evidence, including the contested issues and weight of probative evidence; (3) the
argument of counsel; and (4) any other relevant information revealed by the record
of the trial as a whole.” See Almanza, 686 S.W.2d at 171.
Petitioner’s complaint addresses the appeals court’s analysis as it relates
only to the first Almanza factor. Regarding that factor, the appeals court addressed
Petitioner’s contention that the unlawful charge somehow benefitted Rodriguez by
requiring the jury to find that he was both intoxicated and failing to conceal his gun
before the jury could rule against him on self-defense. Rodriguez, 2014 WL
7205226, at 12; State’s Reply at 15-16.
The appeals court’s reliance on this Court’s recent case law is
understandable. Reeves involved the analysis of harm related to an improper
provocation instruction in a murder trial (also in Harris County). Reeves v. State,
420 S.W.3d at 812. This Court explained that while the Harris County self-defense
instruction was accurate, it was also “cumbersome (even obtuse).” Id. at 817. The
Court specifically pointed out “[t]he self-defense application paragraph is a single
sentence that contains 204 words” (similar to Rodriguez's charge). Id. at n. 29.
10
Immediately after the self-defense section, a provocation charge was
improperly included. Id. 3.
In discussing harm, this Court explained that the provocation instruction
was clearer than the meandering self-defense instruction. Id. at 819. This
“highlighted an element of self-defense that was not factually contested at trial.”
Id. Further, the presence of the improper instruction “implied that there was some
evidence to support every element of the provocation doctrine when there was
not.” Id. Finally, the location of the charge, found immediately after the
confusing self-defense instruction made it more likely the jury's attention was
drawn to the improper charge. Id.
The same reasoning applies in Rodriguez's case. His instructions included
a four-page self-defense instruction that had an application paragraph spanning
more than 200 words, but the erroneous charge immediately following that
instruction was simple and concise. Cl.R. at 2363- 2368. The jury's attention
would be drawn to the erroneous charge at issue in his appeal, which allowed the
jury to reject self-defense without even considering the merits of his use of force.
Id.
This Court in Reeves, after discussing the charge, found the first factor in the
Almanza analysis weighed in favor of finding harm, just as the appeals court did in
11
Rodriguez’s case. However, Petitioner attempts to morph this finding on the first
Almanza factor in the Rodriguez opinion into a finding on the entire Almanza
analysis.
Petitioner ignores that the appeals court proceeded to specifically address the
remaining factors in detail. The appeals court moved on to the evidence presented
at trial. It noted that the only question for the jury was the validity of Rodriguez’s
self-defense claim. Rodriguez, 2014 WL 7205226, at 12. The appeals court
explained the prosecution had claimed that Rodriguez had manufactured his self-
defense claim. However, the appeals court also recognized (which Petitioner
refuses to do) that ample evidence showed Rodriguez might have lawfully been
relying on self-defense. Id. The appeals court held that “given the conflicting
evidence, we conclude that conviction was not a foregone conclusion absent the
charge error, and that this factor supports reversal.” Id. at 13. The appeals court
essentially found that where evidence supports both a valid self-defense defense
and a rejection of that defense, the jury should be given a lawful instruction so that
the jurors can decide the facts based upon a correct statement of law.
Conveniently, Petitioner also omits the appeals court’s discussion of the
prosecution’s argument. Id. at 13. Regarding the prosecution’s initial closing
statement, the appeals court found “[t]he State thus advanced an incorrect, or at
12
least incomplete, argument regarding the limitations on Rodriguez's claim of self-
defense.” After discussing the defense’s straightforward argument, the appeals
court once again addressed the propriety of the State’s rebuttal closing argument:
“In short, the State, in closing, misstated the law regarding the qualification on
self-defense and highlighted the issue of the handgun's concealment, which was
erroneously addressed in the charge.” Id. Based on the State’s incorrect legal
argument and reliance on the improper jury charge, the appeals court found the
“third factor thus weighs in favor of finding some harm.”
The appeals court performed the final step in the Almanza harm analysis by
looking at other information in the record. Id. at 13-14. The appeals court
correctly focused on jury notes, which were sent during deliberations, that
suggested the jurors were focusing on the two issues raised by the unlawful jury
charge: concealment of the handgun and Rodriguez’s possible intoxication. Id.
The appeals court properly found that the “two jury questions also weigh in favor
of finding some harm.” Id.
Discretionary review should therefore be denied on this ground.
C. Petitioner’s third ground ignores facts presented at trial, misstates the
holding of the appeals court, and fails to recognize the role of estoppel in
Texas’ jurisprudence.
13
In its third and final ground of relief, Petitioner contends the appeals court
erred in holding the State was estopped from arguing Rodriguez was not even
entitled to a self-defense jury charge in the first place.
At the outset, it is important to point out that the appeals court’s holding
regarding the State’s argument that Rodriguez was not entitled to self-defense as
matter law is not based solely on the principles of estoppel. Indeed, the appeals
court specifically explained that the State failed to prove as a matter of law that
Rodriguez was not entitled to self-defense. Rodriguez, 2014 WL 7205226, at 14 n.
6.
The State bases its argument on two cases: Davis v. State, 276 S.W.3d 491
(Tex. App.–Waco 2008, pet. ref’d.), and Williams v. State, 35 S.W.3d 783 (Tex.
App.–Beaumont 2001, pet. ref’d.). Id. These cases have nothing to do with harm
analysis; instead, in both cases the defendant was denied a self-defense instruction,
and the appellate courts upheld that denial because the evidence presented at trial
proved as a matter of law that the defendants were not entitled to self-defense.
Williams, 35 S.W.3d at 785-87; Davis, 276 S.W.3d at 498-99.
Petitioner’s argument is that self-defense is limited when a person violates
section 46.02 while attempting to discuss their differences with another. However,
“[s]ection 46.02 does not apply to a person who is carrying a concealed handgun
and a valid [CHL].” TEX. PENAL CODE § 46.15. Petitioner continues to argue
14
that no self-defense instruction should have been given because the defense never
affirmatively established that Rodriguez had his license on his person.4 See State’s
Pet. at 16-18.
Amazingly, Petitioner continues to claim that the only witness who
discussed whether Rodriguez’s gun was concealed during the relevant time frame
was Stetson, and that there was “no evidence whatsoever as to whether the
appellant carried his CHL.” Id. at 17. The State continues to ignore that Stetson
himself agreed at trial that the first time he saw Rodriguez’s weapon was when he
pulled it out and “showed it to us.” 6 Ct.R. at 80-82; Rodriguez's Amended Brief at
36. The logical inference from this testimony is that Rodriguez had his gun
concealed. This contradicted Stetson's prior trial testimony that Rodriguez's gun
was not initially concealed. 6 Ct.R. at 80-82 .
The State also continues to ignore that its own witnesses (such as James
Tyler and James Storm) testified they had not seen the gun on Rodriguez. See
Rodriguez’s Amended Brief at 36; 5 Ct.R. at 253; 6 Ct.R. at 167-68; 7 Ct.R. at
145. Ample evidence raised a fact issue of whether Rodriguez's gun was
concealed at the time he sought an explanation from the partiers.
4
Rodiguez disputes the state’s interpretation of the interplay between Texas Penal Code §§
46.02 and 46.15.
15
Second, the State claims “no evidence” existed that Rodriguez had a CHL.
See State’s Pet. at 17. However, evidence existed that he could have possessed his
CHL at the time of the shooting. It is undisputed that Rodriguez was a CHL holder.
18 Ct.R. at 10-21. Detective Brown testified that he was aware of the license,
although he did not recall seeing the actual hard copy. 5 Ct.R. at 157. He testified
he could not recall seeing the actual hard copy—not that he did not see a hard
copy-at the scene. Id. This evidence created a fact issue of whether Rodriguez had
his CHL license on his person at the time of the shooting. The appeals court even
pointed out that the State conducted itself throughout trial as if the CHL exception
applied to Rodriguez. Rodriguez, 2014 WL 7205226 at 14.
These facts, and the fact Rodriguez was licensed to carry a concealed
handgun, distinguishes his case from those that Petitioner cites. Both Davis and
Williams involved uncontradicted, unequivocal, and clear evidence that the
defendants sought out an explanation of their differences with another while
violating section 46.02. Neither case involved a defendant who was a CHL holder.
Neither case applies to Rodriguez because the evidence in his case created a fact
issue of whether the limitation on self-defense applied. For these reasons, the
appeals alternative holding—that the prosecution failed to show as a matter of law
16
that Rodriguez was not entitled to a self-defense instruction—is sufficient to
support the appeals court’s holding.
But the Court of Appeals went beyond merely relying on the holding above
in denying the Petitioner’s claim. The Court held that because the State introduced
Rodriguez’s CHL records and emphasized the fact he held the license, adduced
evidence regarding whether his gun was concealed, and “conducted itself as if it
agreed a [§ 46.15] fact issue had been raised,” Petitioner was estopped from
arguing otherwise on appeal. Rodriguez, 2014 WL 7205226, at 14.
Principles of estoppel, waiver, and due process clearly apply to bar the State
on appeal from arguing that Rodriguez was not entitled to a correct jury
instruction. See New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001) (equitable
rule of judicial estoppel generally prevents a party from prevailing in one phase of
a case on an argument and then relying on a contradictory argument to prevail in
another phase); Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008) (due
process prevents appellate court from affirming a conviction based upon legal and
factual grounds that were not submitted to the jury).
Texas’ courts, including this Court, have long relied upon the principles of
estoppel to prevent parties from doing what Petitioner has sought to do on appeal:
17
complaining about a matter that Petitioner requested and argued for at trial. In
Prystash v. State, this Court explained the law of invited error:
Waiver might usefully be distinguished from what is sometimes called
“invited error.” If a party affirmatively seeks action by the trial court,
that party cannot later contend that the action was error. This is not
really a waiver of error previously committed. Rather, it is part of the
definition of what can constitute error, and quite reasonably defines
error of which a party may complain as excluding those actions of the
trial court actually sought by the party in that tribunal.
3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (citing George E. Dix and Robert O.
Dawson, 43 Texas Practice—Criminal Practice and Procedure § 42.141
(Supp.1999)). Further, the principle of estoppel has specifically been applied
against the State in the position of appellee. See e.g. Cuellar v. State, 957 S.W.2d
134, 137 (Tex. App.—Corpus Christi 1997, pet. ref’d.) (holding the State was
estopped from arguing the impropriety of a motion to quash when the State had
stipulated to the facts and the hearing at the trial court); Janecka v. State, 823
S.W.2d 232 (Tex. Crim. App. 1990). There is simply nothing novel or far-
reaching about the appeals court’s use of well-settled estoppel principles in
Rodriguez’s case.
Discretionary review should therefore be denied on this ground.
18
III. Conclusion
Rodriguez therefore respectfully requests that this Court deny discretionary
review.
Respectfully submitted,
STRADLEY, DAVIS & REYNAL LLP
___/s/__Neal Davis_________________
Neal Davis
State Bar No. 24001117
Bill Stradley
State Bar No. 19353100
Jonathan Landers
State Bar No. 24070101
917 Franklin Street, Suite 600
Houston, Texas 77002
Telephone: (713) 227-4444
Facsimile: (800) 760-7140
Email: NDavis@SDRFirm.com
RODRIGUEZ’S ATTORNEYS
19
CERTIFICATE OF COMPLIANCE AND SERVICE
I certify that, according to Microsoft Word’s word-counting function, the
portion of this brief for which Texas Rule of Appellate Procedure 9.4(i)(1) requires
a word count contains 4,229 words.
I also cetify that I have requested that efile.txcourts.gov electronically serve
a copy of this brief to Harrist County Assistant District Attorney Clinton A.
Morgan at 1201 Franklin, Suite 600, Houston, Texas 77002-1923, and on the State
Prosecuting Attorney of Texas at P.O. Box 13046, Austin, Texas 78711-3046, and
have mailed this brief to them as well.
Signed February 19, 2015.
___/s/____Neal Davis______________
Neal Davis
20