ACCEPTED
01-14-01023-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/2/2015 4:20:48 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-01023-CR
IN THE COURT OF APPEALS FOR THE FILED IN
1st COURT OF APPEALS
FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
AT HOUSTON, TEXAS 6/2/2015 4:20:48 PM
CHRISTOPHER A. PRINE
Clerk
CAUSE NO. 10-DCR-055898, COUNT TWO
240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS
STATE OF TEXAS, Appellant
VS.
SEAN MICHAEL MCGUIRE, Appellee
STATE'S APPELLATE BRIEF
JOHN F. HEALEY, JR.
District Attorney, 268th Judicial District
Fort Bend County, Texas
Jason Bennyhoff
Sherry Robinson
Assistant District Attorneys
--Oral argument requested--
Gail Kikawa McConnell
Assistant District Attorney
SBOT #11395400
301 Jackson Street, Room 101
Richmond, Texas 77469
(281) 341-4460 / (281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov
Counsel for the State of Texas
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a)(1)(A), the State supplements Appellant’s
list of parties to the trial court's final judgment:
THE STATE OF TEXAS, Appellant
John F. Healey, Jr. District Attorney, 268th Judicial District
301 Jackson St Fort Bend County, Texas
Richmond, TX 77469
Jason Bennyhoff Assistant District Attorneys
Sherry Robinson at trial
Gail Kikawa McConnell Assistant District Attorney
Fort Bend County District Attorney’s Office on appeal
301 Jackson Street, Room 101
Richmond, Texas 77469
SEAN MICHAEL MCGUIRE. Appellee
Michael W. Elliott Attorney for McGuire
905 Front Street
Richmond, TX 77469
Kristen Jernigan Attorney for McGuire
207 So Austin Ave
Georgetown, TX 78626
i
TRIAL COURT
Hon. Donald Higginbotham Judge Presiding
Assigned Judge at Trial on the Merits
c/o Second Administrative Judicial Region of Texas
301 N. Thompson, Suite 102
Conroe, TX 77301
Hon. Thomas Culver, III Judge Presiding
240th District Court, Fort Bend County at the Writ Hearing
301 Jackson St
Richmond, TX 77469
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . viii
REQUEST FOR JUDICIAL NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
POINTS OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Appellee invited error in leaving Count II pending and is
estopped from complaining of his wrong.. . . . . . . . . . . . . . . . . . . . . . 5
1. The double jeopardy clause protects against multiple trials
and multiple punishments, not multiple convictions in a
single trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Article 37.07, Section 1(c) requires a verdict on each count
presented by the indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. A double jeopardy violation by multiple punishments is
prevented by issuing mandate on only the greater offense
after appellate review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iii
4. Appellee invited error in requesting only one verdict, and
the trial court abused its discretion in allowing Appellee to
take advantage of his own wrong.. . . . . . . . . . . . . . . . . . . . . . 9
C. Final Jeopardy has not attached to either count and there is no
double jeopardy bar to a second trial. . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. The State avers that if the conviction for felony murder is
affirmed, it will dismiss the charge for intoxication manslaughter
upon the receipt of mandate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iv
INDEX OF AUTHORITIES
CASES Page
Abney v. United States,
431 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Bigon v. State,
252 S.W.3d 360 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 6-9
Blueford v. Arkansas,
132 S.Ct. 2044 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Brown v. Ohio,
432 U.S. 161 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ex parte Cavazos,
203 S.W.3d 333 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ex parte Koester,
451 S.W.3d 908 (Tex. App.-Houston [1st Dist.] 2014, no pet.).. . . . . . . . . . 5
Kniatt v. State,
206 S.W.3d 657 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
North Carolina v. Pearce,
395 U.S. 711 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Prystash v. State,
3 S.W.3d 522 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Washington v. State,
326 S.W.3d 701 (Tex. App.--Houston [1st Dist.] 2010, no pet.). . . . . . . . . . 5
Woodall v. State,
336 S.W.3d 634 (Tex. Crim App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v
CONSTITUTIONS
United States Constitution
Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATUTES AND RULES
CODE OF CRIMINAL PROCEDURE
Article 37.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
PENAL CODE
Section 19.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 49.08.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vi
NO. 01-14-01023-CR
IN THE COURT OF APPEALS FOR THE
FIRST JUDICIAL DISTRICT OF TEXAS
AT HOUSTON, TEXAS
CAUSE NO. 10-DCR-055898, COUNT TWO
240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS
STATE OF TEXAS, Appellant
VS.
SEAN MICHAEL MCGUIRE, Appellee
STATE'S APPELLATE BRIEF
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State appeals the trial court’s order of pre-trial habeas relief dismissing
Count II-intoxication manslaughter as a double jeopardy violation after Appellee was
convicted by a jury in Count I-felony murder. Appellee appealed the judgment for
Count I. McGuire v. State, No. 01-14-00240-CR. Count II was tried together with
Count I and for the offense of failure to stop and render in Cause No. 11-DCR-
057073, but remained pending after trial because Appellee insisted that only one
guilty verdict or “an acquittal” be returned after consideration of murder, intoxication
vii
manslaughter, DWI-3rd, DWI-2nd, or DWI.
The State appeals the dismissal of Count II at the invitation of the trial court
and solely to preserve and/or insure its right to try Appellee on Count II if this Court
were to reverse or vacate the judgment for felony murder. By this appeal, the State
in no way concedes error in No.01-14-00240-CR or believes it likely to be found, but
simply recognizes that several unsettled issues were presented in that appeal.
STATEMENT OF ORAL ARGUMENT
Whether the trial court erred in dismissing Count II as a double jeopardy
violation, is one of law. However, oral argument may be helpful to the Court because
of the common concept that the Double Jeopardy Clause protects against “multiple
convictions,” when its protection prevents multiple trials and multiple punishments
for the same offense.
viii
REQUEST FOR JUDICIAL NOTICE OF THE
REPORTER’S RECORD IN NO. 01-14-00240-CR
With this brief, the State has filed a motion for the Court to take judicial notice
of the reporter’s record in McGuire v. State, No. 01-14-00240-CR. The felony
murder in that appeal, was tried together with the intoxication manslaughter in this
case and the failure to stop and render aid case also pending on appeal in this Court
in No. 01-14-00241-CR. The facts and arguments giving rise to the order at issue
here are found in that record.
POINTS OF ERROR
Point of Error One: The trial court abused its discretion in allowing
Appellee to take advantage of his wrong in insisting that only one
verdict be returned when the indictment alleged two counts.
Point of Error Two: The trial court abused its discretion in dismissing
Count II when no verdict had been rendered, the judgment in Count I
was not final, and the Double Jeopardy Clause did not bar a second trial.
ix
STATEMENT OF FACTS1
On August 2, 2010, at about 12:40 a.m., Appellee hit a motorcycle, throwing
its rider, David Stidman, 214 feet to the side of the road. [5RR82, 86; 6RR74, 119]
Mr. Stidman was killed almost instantly. [9RR67] Appellee admitted his
intoxication to DPS Trooper Fillmore, and his admission is corroborated by the
testimony of Troopers Fillmore, Wiles, and Tomlin. [5RR80, 7RR119-20, 6RR34-35,
State’s Ex 85 at 3:23-3:41]
A mandatory blood draw was taken under the authority of Section 724.012,
Traffic Code. [6RR41, 14RRState’s Ex 88] The blood test showed a blood alcohol
content of .16, but which could have been 0.0 at the time of the accident. [7RR80,
85]
Appellee was charged in a single indictment with the offenses of felony murder
and intoxication manslaughter:
COUNT I
did then and there unlawfully commit or attempt to commit a felony, to
wit: Driving While Intoxicated (Third Offense), and in furtherance of
the commission, or in immediate flight from the commission of said
felony, he committed or attempted to commit an act clearly dangerous
to human life, to wit: while driving a motor vehicle on a public street the
1
The record citations to the trial reporter’s record are designated
[volume“RR”page]. The record citations to the reporter’s record of the writ hearing
are designated “RR-writ.” All references to the clerk’s record (“CR”) are to the
record filed in this cause.
1
defendant failed to maintain an adequate lookout for traffic and road
conditions and by failing to take proper evasive actions, and thus
collided with a motorcycle driven by David Stidman causing the death
of David Stidman.
COUNT II
It is further presented that on or about August 2, 2010 in Fort Bend
County, Texas the Defendant, Sean Michael McGuire, did then and
there unlawfully, by accident and mistake, while operating a motor
vehicle in a public place while intoxicated, namely by reason of
introduction of alcohol into the defendant’s body, and by reason of that
intoxication, did then and there cause the death of David Stidman by
driving said motor vehicle and striking a motorcycle driven by David
Stidman.
[1CR10]
These offense were tried to a jury together with the offense of failure to stop
and render aid in Cause No. 11-DCR-057073, the conviction for which is pending in
this Court in No. 01-14-00241-CR. [4RR1, 35]
The trial court adopted Appellee’s jury charge, instructing the jury to consider
“in no particular order” felony murder, intoxication manslaughter, DWI-3rd, DWI-
2nd, and DWI. [12RR8, 2CR474-88] The State objected and, pursuant to Article
37.07, requested that the jury be instructed to return a verdict of guilty or not guilty
on each count. [12RR25-26] At Appellee’s insistence that the State was “asking the
Court to engage in a double jeopardy violation,” the trial court overruled the State’s
objection. [12RR18]
The jury convicted Appellee for felony murder and assessed punishment at
2
eighteen years imprisonment and a $5,000 fine. [2CR483, 493] On March 20, 2014,
the District Attorney wrote a letter to TDCJ, Classifications and Records, explaining
that Count II of the indictment for intoxication manslaughter remained pending
because no verdict had been returned. [2CR525-26]
On September 2, 2014, Appellee filed a pre-trial motion for writ of habeas
corpus asserting, “Applicant is currently suffering a Double Jeopardy violation
because he has already been convicted of murder for causing the death of David
Stidman and is currently charged with Intoxication Manslaughter for causing the
death of David Stidman.” [2CR518-45] The State filed a written response.
[2CR539-629]
On December 9, 2014, after hearing the arguments of counsel, and encouraging
the State to appeal its order, the trial court granted relief, dismissing Count II, and
denying the State’s motion to stay. [RR-writ at 1, 14; 1CR635] The State filed its
timely notice of appeal. [2CR636-641]
3
SUMMARY OF THE ARGUMENT
The Double Jeopardy Clause protects against multiple trials and multiple
punishments, not multiple convictions in a single trial. Any double jeopardy violation
for multiple punishments can be prevented by the issuance of mandate on only one
judgment after appellate review.
The trial court erred in dismissing Count II-intoxication manslaughter as a
double jeopardy violation for two reasons:
One, Appellee created his own double jeopardy dilemma by insisting, contrary
to statute, that only one verdict should be returned when the indictment alleged two
counts. Because he invited error, Appellee was estopped from complaining about the
pendency of Count II.
Two, the decision in neither count was final. Appellee appealed the judgment
in Count I-felony murder, which remains pending; and no verdict was rendered in
Count II-intoxication manslaughter. The record reflects no proof that the pendency
of Count II adversely affected Appellee in prison as argued by counsel. And the
record shows the State had no intention of addressing Count II until the appeal in
Count I became final. Double Jeopardy posed no bar to a second trial.
4
STATE’S ARGUMENT
The trial court erred in dismissing Count II-intoxication manslaughter.
A. The standard of review.
We review a trial court's ruling on a pretrial writ of habeas corpus for an
abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.
App.--Houston [1st Dist.] 2010, no pet.). In conducting this review, we
view the facts in the light most favorable to the trial court's ruling. See
Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704.
Ex parte Koester, 450 S.W.3d 908, 910 (Tex. App.--Houston [1st Dist.] 2014, no
pet.).
B. Appellee invited error in leaving Count II pending and is
estopped from complaining of his wrong.
The reporter’s record of the jury trial reflects that Appellee insisted that the
trial court instruct the jury to return one verdict of guilty, thus leaving Count II
pending. [12RR26-30] At the writ hearing, the State argued that Appellee “created
the situation where he went to trial and ended up without a verdict.” [RR-writ at 9]
The law of invited error provides that a party cannot take advantage of
an error that it invited or caused, even if such error is fundamental.
Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc).
In other words, a party is estopped from seeking appellate relief based
on error that it induced. Id. “To hold otherwise would be to permit him
to take advantage of his own wrong.” Id.
Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim App. 2011) (footnote omitted,
appellant estopped from complaining of a violation of confrontation rights).
The trial court abused its discretion in allowing Appellee to take advantage of
5
his own wrong.
1. The double jeopardy clause protects against multiple trials
and multiple punishments, not multiple convictions in a
single trial.
The Fifth Amendment, applicable to the States under the Fourteenth
Amendment, provides that no person shall "be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V & XIV; Brown v. Ohio,
432 U.S. 161, 164 (1977).
The Fifth Amendment offers three different constitutional protections.
First, protection against a second prosecution for the same offense after
acquittal. Second, protection against a second prosecution for the same
offense after conviction. Third, protection against multiple punishments
for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717,
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794
(1989); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
2006).
Bigon v. State, 252 S.W.3d 360, 369-70 (Tex. Crim. App. 2008).
The Double Jeopardy Clause does not protect against multiple convictions in
a single trial.
Here, felony murder and intoxication manslaughter are not lesser included
offenses. The State knows of no Texas case requiring the State to proceed to trial on
either felony murder or intoxication manslaughter and not both. Logically, both
should be presented to the jury for its consideration:
6
• Felony murder2 requires two prior convictions for DWI and intoxication
manslaughter does not. On this basis, a jury might find that the State failed in
its proof of the two prior convictions and convict the defendant of intoxication
manslaughter.
• Intoxication manslaughter3 requires the death to be caused by reason of the
intoxication and felony murder does not. On this basis, a jury might find
against intoxication manslaughter and find the felony murder.
Thus, to ensure a conviction for either felony murder or manslaughter both
offenses must be presented to a jury, and both must be presented to the same jury in
a single trial because the “allowable unit of prosecution” is one unit per death. Bigon,
252 S.W.3d at 372.
2. Article 37.07, Section 1(c) requires a verdict on each count
presented by the indictment.
At trial, the State objected to the jury charge and requested verdicts on each
count pursuant to Article 37.07. [12RR26] At the writ hearing, the State told the trial
court that it had requested a verdict in each count and was entitled to those verdicts
under Article 37.07. [RR-writ at 9] Article 37.07, Section 1(c) provides in pertinent
part:
If the charging instrument contains more than one count . . . the jury
shall be instructed to return a finding of guilty or not guilty in a separate
verdict as to each count and offense submitted to them.
2
Tex. Pen. Code § 19.02(b)(3) (West 2010).
3
Tex. Pen. Code § 49.08 (West 2010).
7
Tex. Code Crim. Proc. art. 37.07, § 1(c) (West 2010).
The State was entitled to a jury verdict for each count of the indictment and
Appellee invited error by insisting that only one verdict should be rendered.
3. A double jeopardy violation by multiple punishments is prevented
by issuing mandate on only the greater offense after appellate
review.
At trial, the State argued that a double jeopardy violation for multiple
punishments can be avoided by abandoning the lesser offense as determined under
Bigon. [12RR16-17] At the writ hearing, the State tendered and argued the test
under Bigon. [RR-writ at 9-10]
In Bigon, the Court of Criminal Appeals resolved a double jeopardy violation
in Bigon’s conviction for both felony murder and intoxication manslaughter by the
“most serious offense test.” Bigon, 252 S.W.3d at 273. This test is used for policy
reasons including that “this test would eliminate arbitrary decisions based upon the
order of offenses in the charging instrument, that in most circumstances the State
would elect to retain the most serious conviction, and that public safety is insured
through the deterrent influence of penalties.” Id. “[T]he most serious offense is the
offense for which the greatest sentence is assessed.” Id. In Bigon, the sentences were
the same, so the court looked to the degree of felony to find felony murder the most
serious offense and vacated the judgment for intoxication manslaughter. Id.
Likewise, in this case, if Appellee had been convicted of both felony murder
8
and intoxication manslaughter, after appellate review, this Court could apply the most
serious offense test to prevent a double jeopardy violation for multiple punishments.
4. Appellee invited error in requesting only one verdict, and
the trial court abused its discretion in allowing Appellee to
take advantage of his own wrong.
Contrary to law, Appellee insisted on one verdict. Appellee is estopped from
complaining about the pendency of Count II when a verdict should have been
rendered at trial.
As shown in the foregoing argument, and as Appellee stated in his application
for writ of habeas corpus, “To be sure, the Double Jeopardy Clause protects against
being twice convicted for the same crime, and that aspect of the right can be fully
vindicated on appeal following final judgment.” [2CR520 (quoting Abney v. United
States, 431 U.S. 651, 660-61 (1977)]
The trial court abused its discretion in allowing Appellee to take advantage of
his wrong. Point of Error One should be sustained and Count II reinstated.
C. Final Jeopardy has not attached to either count and there is no
double jeopardy bar to a second trial.
At trial, the State objected and asked the trial court to instruct the jury to return
a verdict on each count. [12RR25-26] At the writ hearing, the State analogized the
failure to return a verdict on Count II to another no verdict scenario--a hung jury, and
argued there was no double jeopardy violation in a second trial. [RR-writ at 11]
9
The Double Jeopardy Clause protects against multiple trials and multiple
punishments for the same offense. Bigon, 252 S.W.3d at 369-70. At the time
Appellee brought his application for pre-trial writ, Appellee’s pending charge for
intoxication manslaughter had not been set for a second trial. Neither multiple trials,
nor multiple punishments has occurred in this case.
Appellee appealed his conviction for felony murder (Count I). McGuire v.
State, 01-14-00240-CR. Appellee’s appeal is still pending in this Court and the
conviction is not final.
No verdict was rendered for intoxication manslaughter (Count II). Where no
verdict is returned, the Double Jeopardy Clause does not bar a second trial on the
same offense. See Blueford v. Arkansas, 132 S.Ct. 2044, 2050 (2012) (absent a
verdict, the foreperson’s report of an acquittal for capital murder and murder “was not
a final resolution of anything”).
The trial court abused its discretion in dismissing Count II as a double jeopardy
violation.
D. The State avers that if the conviction for felony murder is
affirmed, it will dismiss the charge for intoxication manslaughter
upon the receipt of mandate.
Dismissal of Count II means that if this Court were to find error and reverse or
vacate the judgment for felony murder, the State will not be able to present the
intoxication manslaughter offense on retrial. Hence, this appeal.
10
However, as shown by the trial record, the State is well aware that it may not
retain convictions for both felony murder and intoxication manslaughter. [12RR 11,
17] The State has no intention of prosecuting Appellee for intoxication murder if the
judgment for felony murder is affirmed. Therefore, if this Court were to affirm the
judgment for felony murder, the State avers it will dismiss Count II upon receipt of
the Court’s mandate.
The State’s points of error should be sustained.
11
PRAYER
The State prays that the trial court’s order granting relief be reversed and
Count II be reinstated, pending the outcome of the appeal of the judgment in Count
I in McGuire v. State, 01-14-00240-CR.
Respectfully submitted,
John F. Healey, Jr.
SBOT# 09328300
District Attorney, 268th Judicial District
Fort Bend County, Texas
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
Assistant District Attorney
SBOT # 11395400
301 Jackson Street, Room 101
Richmond, Texas 77469
(281) 341-4460 / (281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov
Counsel for the State
CERTIFICATE OF COMPLIANCE
I hereby certify that the State’s Appellate Brief, in total through the prayer,
contains 3,673 words as counted by WordPerfect 6X, which is less than the 15,000
word limit for a brief.
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
12
CERTIFICATE OF SERVICE
I hereby certify that a copy of the State's appellate brief was served by certified
mail, return receipt requested # 7012 3460 0002 4097 9206 on June 2, 2015, on Ms.
Kristen Jernigan, Attorney for Appellee, 207 S. Austin Ave., Georgetown, TX
78626.
/s/ Mattie Sanford
Mattie Sanford
13