Derosier, Ex Parte Andre ( 2015 )


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  •                                                                                               PD-1510-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 12/7/2015 12:00:00 AM
    Accepted 12/7/2015 2:40:22 PM
    IN THE COURT OF CRIMINAL APPEALS OF                         TEXAS                ABEL ACOSTA
    CLERK
    CAUSE NO. PD-1510-15
    __________________________
    EX PARTE ANDRE DEROSIER
    _______________________
    FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH
    IN CAUSE NUMBER 02-15-00100-CR
    AND
    TH
    FROM THE 367 JUDICIAL DISTRICT COURT
    DENTON, TEXAS
    IN CAUSE NUMBER F-2002-0330-E
    __________________________________
    APPELLANT’S RESPONSE TO THE
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    _________________________________
    FRED MARSH
    EDWARD NOLTER
    Marsh & PAINE, P.C.
    101 S. Woodrow
    Denton, TX 76205
    Tel: (940) 536-377
    Fax: (940) 382-4288
    FDM@MARSHPAINELAW.COM
    December 7, 2015
    EJN@MARSHPAINELAW.COM
    1 – Appellant’s Response to State’s Petition for Discretionary Review
    TABLE OF CONTENTS
    PAGE
    TABLE OF CONTENTS                                                        2
    INDEX OF AUTHORITIES                                                     3
    STATEMENT REGARDING ORAL ARGUMENT                                        5
    ARGUMENT                                                                 6
    PRAYER                                                                  18
    CERTIFICATE OF COMPLIANCE & SERVICE                                     19
    2 – Appellant’s Response to State’s Petition for Discretionary Review
    INDEX OF AUTHORITIES
    CASE                                                                    PAGE
    Cook v. State, 
    902 S.W.2d 471
    (Tex. Crim. App. 1995)                     16
    DeDonato v. State, 
    819 S.W.2d 164
    (Tex.Crim.App.1991)                    14
    Ex parte Armstrong, 
    110 Tex. Crim. 362
    , 
    8 S.W.2d 674
    (1928)                7
    Ex parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS 11155       passim
    (Tex. App.—Ft. Worth Oct. 29, 2015, pet. filed))
    Ex parte Moss, 
    446 S.W.3d 786
    (Tex. Crim. App. 2014)                     11
    Ex Parte Sledge, 
    391 S.W.3d 104
    (2013)                                   14
    Ex parte Williams, 
    65 S.W.3d 656
    (Tex.Crim.App.2001)                      9
    Frank v. Mangum, 
    237 U.S. 309
    , 326, 
    35 S. Ct. 582
    , 
    59 L. Ed. 969
               7
    (1915)
    Garcia v. Dial, 
    596 S.W.2d 524
    , 528 (Tex.Crim.App. 1980)                passim
    Hall v. State, 
    225 S.W.3d 524
    , 538 (Tex. Crim.App.2007)                  17
    Marin v. State, 
    851 S.W.2d 275
    (Tex.Crim.App.1993)                         12
    McKinney v. State, 
    207 S.W.3d 366
    (Tex.Crim.App.2006)                      17
    Murray v. State, 
    302 S.W.3d 874
    (Tex.Crim.App. 2009)                     10
    Rhodes v. State, 
    240 S.W.3d 882
    (Tex. Crim. App. 2007)                  passim
    State v. Roberts, 
    940 S.W.2d 655
    , 657 (Tex.Crim.App.1996)                 8
    Studer v. State, 
    799 S.W.2d 263
    (Tex.Cr.App.1990)                        15
    3 – Appellant’s Response to State’s Petition for Discretionary Review
    Teal v. State, 
    230 S.W.3d 172
    , 181 (Tex.Crim.App.2007)                    15
    United States v. Cotton, 
    535 U.S. 625
    (2002)                             8
    CONSTITUTIONS AND STATUTES                                              PAGE
    Tex. Const. Art. 1§ 10                                                    16
    Tex. Const. Art. 5 § 8
    Tex. Code Crim. Proc. art. 4.05                                           17
    Tex.Code Crim. Proc. art. 21.26                                           7
    TEX. PENAL CODE ANN. § 22.07                                              16
    4 – Appellant’s Response to State’s Petition for Discretionary Review
    IN THE COURT OF CRIMINAL APPEALS OF TEXAS
    CAUSE NO. PD-1510-15
    __________________________
    EX PARTE ANDRE DEROSIER
    _______________________
    FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH
    IN CAUSE NUMBER 02-15-00100-CR
    AND
    TH
    FROM THE 367 JUDICIAL DISTRICT COURT
    DENTON, TEXAS
    IN CAUSE NUMBER F-2002-0330-E
    __________________________________
    APPELLANT’S RESPONSE TO THE
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    _________________________________
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    Comes now Appellant, by and through his attorney of record Mr. Fred Marsh,
    and respectfully urges this Court to deny the State’s petition for discretionary review of
    the above named cause.
    STATEMENT REGARDING ORAL ARGUMENT
    Oral argument is not necessary because this Court’s precedent regarding subject-
    matter jurisdiction is firmly established and will not aid the Court in its decision to deny
    the State’s petition.
    5 – Appellant’s Response to State’s Petition for Discretionary Review
    ARGUMENT
    The State has presented one issue for this Court’s review. The very wording of
    the issue shows that State lacks a fundamental understanding of subject-matter
    jurisdiction and its importance to any court’s authority to act lawfully. The Second
    Court of Appeals correctly interpreted this Court’s precedent based upon the facts of
    the case and the State’s petition should be refused.
    The State’s question is:
    “If a defendant agrees to plead to a lesser offense, that is not actually a
    lesser included offense, of an indicted offense over which the trial court
    has proper subject-matter jurisdiction, can a defendant later attack that
    bargained-for judgment based on a subject-matter jurisdiction claim?”
    (PDR 2)
    The Texas Constitution, statutes, and this Court’s precedent affirmatively decide
    this issue against the State. However, before Appellant begins his legal analysis on this
    issue, this Court should be cognizant of two (2) important facts. First, the State
    admitted during its opening argument to the trial court that “[a]s far as subject-matter
    jurisdiction, this Court did not have subject-matter jurisdiction because a terroristic
    threat is not a lesser included, but Appellant is estopped from making those claims
    now.” (2 RR 12). Second, the trial court found it did not have subject-matter
    jurisdiction but denied Appellant’s writ because it found Appellant’s sentence was an
    illegally lenient sentence and Appellant was estopped from challenging it. (CR 91-94).
    6 – Appellant’s Response to State’s Petition for Discretionary Review
    The Court of Appeals noted this distinction in its opinion, “* * * The State, the trial
    court, and Derosier all agree that the trial court lacked subject-matter jurisdiction.” Ex
    parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS, at 11155 *4 (Tex.
    App.—Ft. Worth Oct. 29, 2015, pet. filed)]).
    The law is not as muddied as the State asserts. (PDR 9) In fact, the Court of
    Appeals “blind reliance on subject-matter jurisdiction” was correct as to the law and as
    the facts of this case point out. (PDR 11). “* * * Jurisdiction may be concisely stated to
    be the right to adjudicate concerning the subject matter in a given case. Unless the
    power or authority of a court to perform a contemplated act can be found in the
    Constitution or laws enacted thereunder, it is without jurisdiction and it acts without
    validity.” Ex parte Armstrong, 
    110 Tex. Crim. 362
    , 
    8 S.W.2d 674
    , 676 (App.1928).
    Furthermore, due process requires that a criminal action in a state court must be before
    a court of competent jurisdiction. Frank v. Mangum, 
    237 U.S. 309
    , 326 (1915).
    Article 5 § 8 of the Texas Constitution confers power on Texas District Courts.
    Article 4.05 of the Texas Code of Criminal Procedure gives District Courts their
    jurisdiction. Tex.Code Crim. Proc. art. 4.05 states:
    “District courts and criminal district courts shall have original jurisdiction in
    criminal cases of the grade of felony, of all misdemeanors involving official
    7 – Appellant’s Response to State’s Petition for Discretionary Review
    misconduct, and of misdemeanor cases transferred to the district court under Article
    4.17 of this code.”
    Most importantly, subject-matter jurisdiction cannot be conferred by agreement
    of the parties. Garcia v. Dial, 
    596 S.W.2d 524
    , 527 (Tex.Cr.App.1980); State v.
    Roberts, 
    940 S.W.2d 655
    , 657 (Tex.Crim.App.1996), overruled on other grounds by
    State v. Medrano, 
    67 S.W.3d 892
    , 894 (Tex. Crim. App. 2002); Ex Parte Sledge, 
    391 S.W.3d 104
    , 108 fn. 23 (2013)(citation to Garcia); see also United States v. Cotton,
    
    535 U.S. 625
    , 630 (2002)("[S]ubject-matter jurisdiction, because it involves the court's
    power to hear a case, can never be forfeited or waived.") The Court of Appeals
    embraced this when it affirmatively held that “[i]t is axiomatic that subject-matter
    jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested
    in a court by constitution or statute.” Derosier at *5 (citations omitted).
    The State is challenging the Court of Appeals correct holding because it “did not
    consider that the trial court had jurisdiction of Appellant’s originally-charged case, and
    the lesser offense was agreed to by the parties after jurisdiction had already been
    established.” (PDR 4). The State provides no supporting law or authority for this
    assertion. Furthermore, this is incorrect.
    8 – Appellant’s Response to State’s Petition for Discretionary Review
    The entire crux of the State’s argument is that Appellant cannot challenge his
    conviction because he received an illegal sentence (Rhodes v. State1) or because
    Appellant did not object to the entry of judgment as the defendant did in Murray v.
    State2 and estopped from challenging his conviction. The problem with the State’s
    argument is that this Court has consistently held that challenges to the subject-matter
    jurisdiction are immune to any of the various forms of estoppel. Ex parte Williams, 
    65 S.W.3d 656
    , 659-60 (Tex.Crim.App.2001) (Keller, P.J. concurring)(“Subject matter
    jurisdiction is immune to estoppel considerations, * * *))
    The Court of Appeals correctly stated that there was no question in Rhodes that
    the trial court had subject-jurisdiction over the offenses. The issue in Rhodes was that
    it was an illegal sentence. In Rhodes, all of the offenses were for crimes that the trial
    court had subject-matter jurisdiction. In this case, Appellant did not receive or suffer
    from an illegal sentence. Appellant suffers from an illegal conviction because the trial
    court lacked subject-matter jurisdiction. There is a difference. An illegal sentence
    presupposes that the conviction was lawful. In this case, the State knowingly,
    voluntarily, and intelligently dismissed the felony counts for which the trial court had
    jurisdiction. (CR 34; WHC-Ex. 4). Likewise, the State knowingly, voluntarily, and
    intelligently amended the indictment to allege a misdemeanor for which the trial court
    1 
    240 S.W.3d 882
    (Tex. Crim. App. 2007)
    9 – Appellant’s Response to State’s Petition for Discretionary Review
    did not have jurisdiction. (CR 31; WHC-Ex. 3). The State’s attorney is responsible for
    the pleadings in a criminal action, not the defendant.
    The other crux of the State’s argument is based in part on this Court’s decision in
    Murray v. State. Murray was a unanimous decision authored by Presiding Judge
    Keller. In Murray, the defendant had agreed to plead to a misdemeanor for which the
    trial court lacked subject-matter jurisdiction. After the trial court took the case under
    advisement, the defendant retained new counsel who filed a motion to revoke the
    defendant’s plea of guilt. 
    Id. The trial
    court denied defendant’s motion, convicted him
    of the misdemeanor offense, and the defendant appealed his conviction. 
    Id. The primary
    issue in this case was not whether the State was estopped from asserting a subject-
    matter jurisdictional claim but if the defendant could withdraw his guilty plea, with
    reason, prior to the trial court rendering a judgment. Id at 883.
    The State’s entire theory regarding this is based upon this Court’s statement in
    Murray addressing estoppel which states:
    “The State advances a number of theories of estoppel that it believes
    prevents appellant from challenging the judgement in this case: invited
    error, estoppel by judgment, estoppel by contract, promissory estoppel,
    and quasi-estoppel. We assume, without deciding, that the State is not
    barred by a subject matter jurisdiction claim.” 
    Id. at 882.
    2 
    302 S.W.3d 874
    (Tex. Crim. App. 2009)
    10 – Appellant’s Response to State’s Petition for Discretionary Review
    However, this assumption appears to have been resolved in Murray itself and
    this Court’s recent unanimous decision in Ex parte Moss, 
    446 S.W.3d 786
    , 788-89
    (Tex. Crim. App. 2014).
    Prior to this statement in Murray, this unanimous Court addressed the State’s
    argument regarding the issue that public policy favors and encourages plea bargaining
    in criminal cases with Presiding Judge Keller holding:
    “Even if the policy of encouraging plea bargaining were considered, the
    State has the ability to achieve the practical result reached in cases like
    this without running afoul of the statutory scheme. The State could
    obtain an indictment, or a waiver of indictment from the defendant,
    for a felony offense that does include the misdemeanor offense the
    parties wish to be the subject of a plea-bargained judgment. Or
    perhaps the felony prosecutor could obtain the cooperation of a county
    attorney or other prosecutor in misdemeanor cases to plead the defendant
    to the misdemeanor in question in a court that has misdemeanor
    jurisdiction. In either event, the plea could be made in exchange for
    dismissal of the charged offense with prejudice. These alternate methods
    of handling the plea would avoid the potential double jeopardy problems
    associated with convicting someone of an offense that is not in fact a
    lesser-included offense of the offense charged.” 
    Id. at 881
    (internal
    citations omitted, emphasis added).
    It appears that this Court answered its own question regarding estoppel and
    provided the solution for issues, such as those presented in this case, when the State
    and the defendant agree to plead to a misdemeanor in district court.
    Furthermore, this Court’s solution begs the question, if this Court would not
    carve out a subject-matter jurisdiction exception for public policy then how could this
    11 – Appellant’s Response to State’s Petition for Discretionary Review
    Court create an estoppel exception when subject-matter jurisdiction is an “absolute
    systemic requirement[-] * * * and [is] not forfeitable?” Marin v. State, 
    851 S.W.2d 275
    (Tex.Crim.App.1993.) Subject-matter jurisdiction is “independent of the litigant’s
    wishes. Implementation of these requirements is not optional and cannot, therefore, be
    waived or forfeited by the parties.” Marin at 279.
    Furthermore, Tex.Code Crim. Proc. art. 21.26 statutorily provides the solution as
    articulated in Murray. It states:
    “Upon the filing of an indictment in the district court which charges an
    offense over which such court has no jurisdiction, the judge of such
    court shall make an order transferring the same to such inferior
    court as may have jurisdiction, stating in such order the cause
    transferred and to what court transferred.” (emphasis added).
    The plain wording of the statute creates a requirement for the trial court and not
    of Appellant. This is a statutory requirement of the trial court to act as the gatekeeper to
    ensure that a misdemeanor is before a court of competent jurisdiction. When the State
    amended the indictment to include a misdemeanor and then dismissed all of the felony
    counts, the trial court was required to sua sponte transfer the case “to such inferior
    court as may have jurisdiction.” 
    Id. The trial
    court did not do this.
    In Moss this unanimous Court explained the importance of jurisdiction as
    follows:
    12 – Appellant’s Response to State’s Petition for Discretionary Review
    “We have held that a lack of personal or subject-matter jurisdiction
    deprives a court of any authority to render a judgment. See 
    Garcia, 596 S.W.2d at 527
    (quoting Ex parte Armstrong, 
    110 Tex. Crim. 362
    ,
    366, 
    8 S.W.2d 674
    , 675-76 (1928) (stating that "[u]nless the power or
    authority of a court to perform a contemplated act can be found in the
    Constitution or laws enacted thereunder, it is without jurisdiction and its
    acts without validity.")). We have further explained that when a court acts
    without jurisdiction, such as by entering a judgment without the necessary
    authority to do so, the purported action taken by the court is void. See Nix
    v. State, 
    65 S.W.3d 664
    , 668 (Tex. Crim. App. 2001) (identifying a lack
    of personal or subject-matter jurisdiction as reasons a judgment would be
    void). * * * In contrast, if a defendant confesses and is convicted at
    trial because he is guilty of the crime committed, but the court lacked
    subject-matter or personal jurisdiction over the defendant, the
    judgment of conviction is void. See 
    Marin, 851 S.W.2d at 279
    (citing
    
    Garcia, 596 S.W.2d at 527
    ).” Moss, at 788-789. (Emphasis added).
    This is exactly the case before this Court. It does not matter if Appellant
    accepted the plea bargain advanced by the State, that it was beneficial to him, or that he
    waited twelve (12) years to file his writ challenging the jurisdiction of the convicting
    court.
    This is not a case where Appellant took his case to trial and requested a jury
    instruction for a lesser-included offense. The facts of this case show that it was the
    State who amended the indictment to include an offense that was a misdemeanor for
    which the trial court lacked jurisdiction. (CR 31; WHC-Ex. 3). The State then filed a
    motion to dismiss the felony counts originally alleged and proceeded with the
    misdemeanor offense, which the trial court granted. (CR 34; WHC-Ex. 4); (CR 36;
    13 – Appellant’s Response to State’s Petition for Discretionary Review
    WHC-Ex. 5). When the trial court granted the State’s motion to dismiss on the felony
    counts, it lost jurisdiction over Appellant because the amended indictment failed to
    charge a felony for which terroristic threat is a lesser-included offense.
    The State is correct in that there are two (2) cases where estoppel bared subject-
    matter jurisdiction claims. (PDR 9). The State cites Ex parte Sledge, 
    391 S.W.3d 104
    ,
    108 (Tex.Crim. App.2013) and DeDonato v. State, 
    819 S.W.2d 164
    , 166-67
    (Tex.Crim.App.1991). 
    Id. These cases
    are easily distinguishable and are not applicable
    to the case at bar. This Court denied habeas relief in Sledge because the defendant
    raised his jurisdictional claim in a second writ and not his first. Sledge at 111. This was
    Appellant’s first writ of habeas corpus.
    DeDonato is inapplicable and does not stand for the proposition the State
    asserts. The State relies on Justice Maloney’s concurrence in that case regarding
    estoppel being applied to subject-matter jurisdiction. (PDR 9). Justice Maloney agreed
    with the decision but not with the majorities reasoning. DeDonato at 167. In particular,
    Maloney disagreed with the decision because it failed to account for the various other
    provisions in the Code of Criminal Procedure that define the jurisdictional limits of the
    various courts. In any event, this Court held that jurisdiction was established because at
    the time the law allowed for the offense to be prosecuted as a Class B or Class C
    14 – Appellant’s Response to State’s Petition for Discretionary Review
    misdemeanor. Id at 166. Therefore, the trial court did have subject-matter jurisdiction.
    Dedonato relied on Studer v. State, 
    799 S.W.2d 263
    , 267 fn. 7 (Tex.Cr.App.1990).
    Since Dedonato this Court has has addressed Justice Maloney’s concerns by
    addressing Studer in several cases. As it applies to determining subject-matter
    jurisdiction, this Court stated in Teal v. State, 
    230 S.W.3d 172
    , 181
    (Tex.Crim.App.2007):
    “Implicit within both Studer and Cook is that ‘the offense’ charged must
    be one for which the trial court has subject-matter jurisdiction. Although
    the ‘indictment’ provision of the constitution explicitly speaks only of the
    two requirements of ‘a person’ and ‘an offense,’ the constitution also sets
    out the subject-matter jurisdiction of Texas courts. An indictment must
    also satisfy the constitutional requirement of subject-matter
    jurisdiction over ‘an offense.’” (emphasis added, footnote omitted).
    The indictment “must be capable of being construed as intending to charge a
    felony (or a misdemeanor for which the district court has jurisdiction).” Teal at 181. As
    it pertains to the case at bar, the State failed to amend the indictment charging a felony
    or misdemeanor for which the trial court had subject-matter jurisdiction. The amended
    indictment added Count Seven (7) which reads:
    “On or about April 27th, 2001, the [Appellant] did then and there
    threaten [the alleged victim] with an offense involving violence and
    [Appellant] did that with the intent to place [the alleged victim] in fear of
    imminent serious bodily injury, in Denton County, Texas, against the
    peace and dignity of the state.” (CR 31; WHC-Ex. 3).
    15 – Appellant’s Response to State’s Petition for Discretionary Review
    The State tracked the language of the misdemeanor offense of Terroristic Threat.
    TEX. PENAL CODE ANN. § 22.07 (a)(2)(West 1994)(CR. 52, WHC-Ex. 11). The
    statute at the time of Appellant’s trial and alleged plea read:
    “(a)   A person commits an offense if he threatens to commit any offense
    involving violence to any person or property with intent to:
    (2)     place any person in fear of imminent serious bodily injury;”
    However, this is not an offense for which the district court had subject matter
    jurisdiction. The offense alleged was a Class B misdemeanor (instead of a Class A
    misdemeanor, which the judgment reflects). The statute regulating punishment for the
    offense of Terroristic Threat at the time read:
    “An offense under Subdivision (1) or (2) of Subsection (a) is a Class B
    misdemeanor. An offense under Subdivision (3) of Subsection (a) is a
    Class A misdemeanor. An offense under Subdivision (4) of Subsection
    (a) is a felony of the third degree.” TEX. PENAL CODE ANN. § 22.07
    (b)(West 1994)(CR 52; WHC-Ex. 11).
    Article 1 § 10 of the Texas Constitution requires that unless waived by the
    defendant, the State must obtain a grand jury indictment in a felony case. Without an
    indictment or valid waiver a District Court does not have jurisdiction over that case.
    Cook v. State, 
    902 S.W.2d 471
    , 475-76 (Tex. Crim. App. 1995) (collecting cases and
    stating, "Jurisdiction vests only upon the filing of a valid indictment in the appropriate
    court."). For an indictment to be constitutionally valid and vest a District Court with
    16 – Appellant’s Response to State’s Petition for Discretionary Review
    subject-matter jurisdiction it must meet the test enunciated in Teal v. State, 
    230 S.W.3d 172
    , 179-181 (Tex.Crim.App.2007)(citing Cook v. State, 
    902 S.W.2d 471
    (Tex. Crim. App. 1995)).
    On its face the amended indictment failed to allege an offense for which the
    District Court had subject-matter jurisdiction because the charged misdemeanor did not
    allege a “misdemeanor[] involving official misconduct” nor was it a misdemeanor case
    that was transferred to this Court under Article 4.17 of the Penal code. See Tex.Code
    Crim. Proc. art. 4.05. “[T]he indictment, * * *, must be capable of being construed as
    intending to charge a felony” (or a misdemeanor for which the district court has
    jurisdiction). Teal at 181. There is absolutely no evidence in the record that the
    amended indictment was intended to charge a felony. Ergo, the trial court lacked
    subject-matter jurisdiction to accept Appellant’s plea.
    The State’s assertion that this Court should write on the issue because these
    specific facts have not been decided by this Court is unnecessary. (PDR 9). The State
    primarily relies on Hall v. State, 
    225 S.W.3d 524
    , 537-38 (Tex. Crim. App. 2007)
    (Keller, P.J., dissenting) (discussing the doctrine of "beneficial acquiescence") and
    McKinney v. State, 
    207 S.W.3d 366
    , 376 (Tex. Crim. App. 2006)(Keller, P.J.
    concurring). However, both of these cases are inapplicable because they deal with a
    17 – Appellant’s Response to State’s Petition for Discretionary Review
    defendant requesting a lesser-included offense during trial and do not address the trial
    court’s subject-matter jurisdiction.
    Finally, the State’s argument that it has been prejudiced is completely without
    merit. (PDR 13). As previously argued, it was the State who amended the indictment
    and requested that the felony counts be dismissed. Had the State wanted to address
    this issue it should have done so at trial and not after Appellant filed his writ of habeas
    corpus.
    The reason it is unnecessary to write on this issue is because this Court has
    consistently held that subject-matter jurisdiction cannot be conferred by agreement of
    the parties. Supra. Without jurisdiction, a court as no authority to act, including
    accepting a plea bargain for which it lacks jurisdiction. Supra. The State’s petition
    should be denied.
    PRAYER
    The Second Court of Appeals correctly decided the issue based upon this
    Court’s precedent and the facts. This Court should deny the State’s petition for
    discretionary review because the law and this Court’s precedent are well established in
    this area.
    18 – Appellant’s Response to State’s Petition for Discretionary Review
    Respectfully Submitted,
    /s/Fred Marsh
    FRED MARSH          SBOT# 13016000
    EDWARD NOLTER SBOT#24081073
    Marsh& Paine, P.C.
    101 S. Woodrow
    Denton, TX 76205
    Tel: (940) 382-4200
    Fax: (940) 382-4288
    FDM@MARSHPAINELAW.COM
    EJN@MARSHPAINELAW.COM
    CERTIFICATE OF COMPLIANCE
    Appellant certifies that the this reply brief in the instant cause contained a word count
    of 3,652, said count being generated by the computer program Microsoft Word that was used
    to prepare the document.
    Signed this, the 5th day of December, 2015.
    /s/Fred Marsh
    FRED MARSH
    CERTIFICATE OF SERVICE
    A copy of the foregoing Appellant’s Brief has been forwarded to the District Attorney
    of Denton County, Texas on this the 5th day of December, 2015.
    /s/Fred Marsh
    FRED MARSH
    19 – Appellant’s Response to State’s Petition for Discretionary Review