in Re Andy Sanchez ( 2017 )

Andy Sanchez #1737041
George Beto Unit ::.-i 1
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1391 FM 3328 ;\T S.;\N AN rnNiU. : : i_ ..
Tennessee Colony, TX 75880
2017SEP25 AHll:56
September 21, 2017
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Fourth Court of Appeals
C/0 Keith E. Hottle, Clerk
Cadena-Reeves Justice Center
300 Dolorosa St. RM 3200
San Antonio, Texas 78205-3037
RE: Relator's Petition for a Writ of Habeas Corpus
Appeals No. 04-17-00615-CR
Trial Court Cause Number 2010-JW-.02881
Dear Honorable Hottle:
Please find enclosed Relator's Petition for a Writ of Habeas Corpus. Please
stamp and bring to the attention of the Court.
Please suspend any rules regarding copies. And if there are any defectey please
ret�rn with instructions.
Thank you very much for your time and attention to this matter.
Sincerely,
Andy �e�
TDCJ-CID NO. 1737041
George Beto Unit
l.391 FM 3328
Tennessee Colony, Texas 75880
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IN 'IHE TEXAS COURT OF CIVIL APPEALSTT�, 1 n:-_ l�,L: ...�r\·t ��!r- ,.,r ! ._ -··
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SAN ANTONIO, TEXAS 2017 SEP 25 AH II: 56
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IN RE A.S.
RE1A10R'S PETITION FOR A WRIT OF I:IABEAS CORPUS
PURSUANT 10 ARTICLE V, SECTION 8 OF 'IHE
TEXAS· CONSTITUTION
IN CAUSE NUMBER 2010-JUV-02881
FROM THE 436TH DISTRICT COURT
BEXAR CDUNTY, TEXAS
1D 1'HE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, A.S., pro se, hereinafter "Relato1:'," and files this, his Re..­
lator's Petition for writ of habeas �orpus pursuant to Article V, Section
8 of the Texas Constitution.
TABLE DF CONTENTS
LIST OF INTERESTED PARTIES ii
STATEMENT REGARDING ORAL ARGUMENT iii
TABLE OF authorities iv
STATEMENl^ OF THE CASE
STATEMENT OF.JURISDICTION .vi
ISSUES PRESENTED
GROUND 01^.
GROUND TWO
GROUND THREE
STATEMENT OF FACTS
GROUND ONE (ineffective Assistance of Counsel) ..3
GROUND TWO (Trial Court Erred in Denying Relator's Motion to Recuse the Dis
trict Attorney's Office where an Actual Conflict of Interest Existed) 7
GROUND THREE (Relator's Case is Rendered Void by Jurisdictional Defect....8
PRAYER 9
CERTIFICATE OF SERVICE 9
LIST OF INTERESTED PARTIES
Pursuant to the Texas Rules of Appellate Procedure, Rule 38.1(a), Re-
lator lists the following persons who have an interest in the writ of habeas
corpus for the purpose of the Court's determining conflicts and recusals:
JUDGE: RELATOR:
Hon. Lisa Jarrett Andy Sanchez TDCJ #1737041
600 Mission Road George Beto Unit
San Antonio, Texas 78210 1391 FM 3328
Tennessee Colony, Texas 75880
TRIAL COUNSEL:
Hubert T. McCray
110 E. Nueva
San Antonio, Texas 78283
RELATOR'S COUNSEL:
Pro se
11
STATEMENT REGARDING ORAL ARGUMENT
Relator request oral argument. The issues in this case are complex.
Ill
tabij: of authorities
Cases
Alaniz v. State, 2 S.W.3d 451 (Tex.App. —San Antonio 1997) 5, 8
Canady v. State, 100 S.W.3d 28 (Tex.App. —Waco 2002) 7
C.E.J. V. State. 788 S.W.2d 849, 852 (Tex.App. —Dallas 1990) 3
Cooper V. State. 769 S.W.2d 301, 304 (Tex.App. —Houston 1st Dist 1989).3
Ex Parte Hargett. 819 S.W.2d 866, 867 (Tex.Crim.App. 1991) .y
Ex Parte Patterson. 969 S.W.2d 16, 19 (Tex.Grim App. 1998) ,9
Ex Parte Seidel, 39 S.W.3d 221 (Tex.Grim.App. 2001) ..8
Ex Parte Spain. 589 S.W.2d 132, 134 (Tex.Grim.App. 1979) 7
Gideon y. Wainwright, 372 U.S., at 335 (1963) ....6
Haines V. Kemer, 404 U.S. 5l9 2
Hernandez V. State, 726 S.W.2d 53, 55-56 (Tex.Grim.App. 1986) 3
Mercado v. State. 615 S.W.2d 225, 227-228 (Tex.Grim App. 1981) 3, 4
Rushing v. State. 50 S.W.3d 715 (Tex.App. —Waco 2001).. .5, 8
State Ex Rel. Sherrod y. Garey, 790 S.W.2d 705 (Tex.App. —Amarillo (1990)
• 6, 9
Strickland v. Washington, 466 U.S. 668 3, 4, 5
Watson V. State, 587 S.W.2d 161 5, 8
Constitutions, Statutes and Codes
Code of Criminal Procedure, Article 45.017 6
Family Code Section 53.06 5^ 8
Government Code Article 10 Section 9 ,4
Rules of Professional Conduct 1.01(b)(l)(2) 4
Texas Constitution Article 1, Section 10 3
Texas Constitution Article 1, Section 19 7^ 9
Texas Constitution Article 5, Section 8. .i
U S. Cdhstitution Amend 5 7, 8, 9
US. Cdhstitution Amend 6 3
U.S. Constitution Amend 14 3. 7^ 8, 9
IV
STATEMENT OF THE CASE
Relator was taken into custody on November 18, 2010.
On February 24, 2011, Relator and his mother was provided a summons for
Attempted Aggravated Sexual Assault by his attorney that was recorded as filed
on March 25, 2011.
On June 2, 2011, Relator's Motion to Recuse the District Attorney's of
fice was denied. Continuance was granted on June 6, 2011.
Relator was certified as an adult on July 19, 2011, and entered a plea
of no contest for the charge Bf Aggravated Kidnapping on August 17, 2011.
STATEMENT OF JURISDICTION
The Court of Appeals has held that Art. V, Sec. 8 of the TEX.CONST,
gives th^ District Court plenary power to issue the writ of habeas corpus.
See Ex Parte Hargett. 819 S.W.2d 866, 867 (Tex.Crifn.App. 1991).,
The Texas Constitution Art. V, Sec. 8 states in relevant part: "District
Court jurisdiction consists of exclusive, appellate and original jurisdiction
of all actions, proceedings, or remedies, except in cases vdiere exclusive,
aippellate or original jurisdiction may be conferred by this constitution or
other law on some other Court, tribunal or administrative body. District Court
judges shall have power to issue writs necessary to enforce their jurisdiction.
VI
ISSUES PEJESENTED
GROUND ONE;
INEFFECTIVE ASSISTANCE OF COUNSEL
GROUND IWO:
TRIAL COURT ERRED IN DENYING RELATOR'S MOTION TO RECUSE IHE DISTRICT ATTORNEY'S
OFFICE WHERE AN ACTUAL CONFLICT OF INTEREST EXISTED.
GROUND IHREE:
RELATOR'S CASE IS RENDERED VOID BY JURISDICTIONAL DEFECT
statemewt of facts
Relator, a juvenile, was taken into custody dh November 18, 2010, after
detective Smith obtain DNA from him pursuant to an alleged warrant on Nov^-
ber 17, 2010.
Although Relator had received a summons, it was provided to him and his
mother for the charge of Attempted Aggravated Sexual Assault, dated February
24, 2011, recorded as filed on March 25, 2011. The primary problem that exist
under the citciimstances is that, at the time, Relator's mother's parental
rights had been terminated. Relator was under the custody of Children Protec
tion (CPS). Further, Relator was represented by the district attorney's of
fice during all proceedings under the above cause; an actual conflict of in
terest.
Relator's attorney. Attorney Hubert T. McCray, sought to rectify the
issue surrounding CPS. When the prosecutor intervened with an objection. At
torney McCray allowed this to dissuade him, contributing to his failure to
fulfill his contractual obligations by entering his own objection for the
purpose of perserving the issue for appeal. Despite Attorney McCray's fail
ure, this raises jurisdictional concerns.
Jurisdictional concerns are also related to the actual conflict of interest
regarding the district attorney's simultaneous representation regarding Rela
tor. Although a motion to recuse the district attorney's office was filed,
the presiding judge. Judge Lisa Jarret denied the motion.
Although Relator had been allegedly certified as an adult on July 19,
2011, Relator, in conjunction with the docket sheet, never received a manda-
tory examining trial.
Relator, because he does not have access to all his records, iTfl-serve
for expansion of records.
Relator relies on Haines v. Kemer, 404 U.S. 519, "for less stringent
pleading standards," and seek that the Court "lend color to the argument."
GROUND ONE
INEFFECTIVE ASSISTANCE OF COUNSEL
Issues presented:
A. Competence
B. Violation of Due Process
Both the United States and Texas Constitutions, as they operate upon
Agents, afford the criminal accused the right to assistance Hf counsel. See
U.S/ CONST. AMEND. 6; TEX. CONST, art. I, ;>§ 10.
"A juvenile is guaranteed all the constitutional rights which an adult
would have in a criminal proceeding because the juvenile delinquency proce
dures seek a deprivation of liberty. See C.E.J. v. State, 788 S.W.2d 849,
852 (Tex.App. —Dallas 1990).
The test for determining vhether a defendant was denied the effective
assistance of counsel was established by the Supreme Court of the United
States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 806 L.ED.2d
674 (1984). The Court held that ineffective assistance of counsel is shown
only vhere the attorney's errors are so serious that he was not functioning
as counsel guaranteed by the Sixth Amendment and, in addition, the defendant
was deprived of a fair trial because of the error.
For an error to reach that magnitude, there rmjst be a reasonable prob
ability that, but for counsel's imprlifessional errors, the result of the pro
ceedings would have been different. The Court defined a reasonable probabili
ty as a probability sufficient to undermine confidence in the Outcome. See
Cooper y.,,State, 769 S.W.2d 301, 304 (Tex.App. --Houston 1st Dist. 1989).
However, the Suprone Court in Strickland, also held:
on the otherhand, we believe that a defendant need not show that coun
sel's deficient conduct more likely than not altered the outcome of the
case. (t)he result of a proceeding can be rendered unreliable, and hence,
the proceeding itself unfair, even if the error of counsel cannot be
shown by a preponderance of the evidence to have undermined that out
come.
Strickland, 466 U.S. at 694; 104 S. Ct. 2068.
The standard on the right to counsel is the same under the United States
and Texas Constitutions. See U.S. CONST. AMEND. VI; TEX. CONST, art. 1 § 10;
also see Hernandez y. State, 726 S.W.2d 53, 55-56 (Tex.Crim.App. 1986); U.S.
CONST. AMEM). 14. An attorney's performance must be guage by the totality
of his/her representation. Strickland, supra; Mercado y. State, 615 S.W.2d
225, 227-228 (Tex.Grim. 1981). A fair assessment of counsel's performance
requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances, and to evaluate counsel's conduct
from his/her perspective at the time. Texas case law requires a two-fold show
ing by Relator to establish ineffective assistance: (l) an act that consti
tute ineffective assistance of counsel and (2) that the defendant suffered
harm because of this ineffective assistance. Strickland, 466 U.S. 687; 104
S.Ct. at 2064; Mercado, supra.
A. Competence
The very first ABA Rule of Professional Conduct is numbered 1.1 and ti
tled simply "Competence." Following are the requirements for "Competence":
1. Legal Knowledge and Skill.
2. Thoroughness and Preparation.
3. Maintaining Competence.
Rule 1.1 defines the elements of competent representation historical
ly developed under the code: competence "requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for representation." This
is one of the main rules requiring a. lawyer to obtain every available shred
of evidence in a client's case, use that evidence to prepare and thoroughly
puirsue every available defense in his client's behalf.
V.T.C.A., Government Code Title 2, Subtitle G App., art 10, § 9 rules
of Professional Conduct provides a preamble: A lawyer's responsibilities:
(3) "In all professional functions, a lawyer should zealously pursue clients'
interest within the bound of the law. In doing so, a lawyer should be compe
tent, prompt and diligent. A lawyer should maintain conmunication with a client
concerning the representation. A lawyer should keep in confidence infoimiation
relating to representation of a client except so far as disclosure is required
or permitted by the Texas Disciplinary Rules of Professional Conduct or other
law. Relator asserts that Attorney McCray failed to zealously pursue his
interest; failing to maintain competence, communication and confidence.
According to Rule 1.01(b)(1)(2), in representing a client, a lawyer shall
not: neglect a legal matter entrusted to the lawyer; or frequently fail to
carry out completely the obligations that the lawyer owes to a client. As
used in this rule, "Neglect" signifies inattentiveness involving a conscious
disregard for the responsibilities owed to a client.
The duty of diligence is closely related to competence, as one often
accompanies the other.
The interelated obligations of thoroughness and preparation require a
lawyer to investigate the facts of the matter and research the applicable
law.
Regarding investigations, the Supreme Court in Strickland held;
counsel has a duty to make a reasonable investigation or to make a rea
sonable decision that makes particular investigations unecessary.
Stickland, 466 U.S. at 691.
In accordance with FAM. CODE § 53.06, the juvenile court was mandatorily
required to direct the issuance of a summons to: (1) the child named in the
petition; (2) the child's parent, guardian, or custodian; (3) the child's
guardian ad litem; and (4) any other person who appears to the court to be
a proper or necessary party to the proceeding.
Relator, assert first, that he was never issued a summons for Aggravated
Kidnapping, but for Attempted Aggravated Sexual Assault. Assuming arguendo
that it was appropriately issued, it would still fail because, first, it was
signed by Relator's mother vdio did not have parental rights, and second, the
orly summons issued was to Relator by his attorney. See EXHIBIT A SUMMONS.
Although Judge Jarrett ordered the Probation Officer Erin J. McQueen,
it was issued to Relator by his attorney on February 24, 2011. "Service on
secretary of juvenile's attorney of summons and petition for juvenile to ap
pear at hearing on waiver bf juvenile jurisdiction, and certification for
prilsecution as adult, did not comply with requiranent to personally serve
juvenile." See Alaniz v. State, 2 S.W.3d 451 (Xex.App. —San ,^tonio 1997).
Although Relator and his mother's signature is on the Summons, it reveals
a signature date at February 24, 2011. The summons was not recorded as an
official document until March 25, 2011. Attorney McCray was expected to be
familiar with well-settle principles of law applicable to Relator s needs.
Attorney McCray's disregard equates to his contractual viblation as Texas
law, attorney-client relationship, is viewed as contractual relationship,
thus, ending up on the table of ineffectiveness. The requisit familiarity
with well-settled legal principles extends to matters of procedure.
Attorney McCray also had a duty to know the three step requirement "be
fore juvenile can be tried as an adult are a transfer hearing, an examiningh
trial, and a grand jury's deliberation; trial may then follow; if one of those
steps is omitted or rendered void by a jurisdictional defect, there can be
no jurisdiction to proceed with the next step." See Watson v. State, 587 S.W.
2d 161; Rushing v. State, 50 S.W.3d 715 (Tex.App. —Waco 2001). Relator asserts
that, in conjunction with the criminal docket, there was no examining trial.
See EXHIBIT B DOCKEI. A district clerk has the duty to maintain a criminal
dcxiket pursuant CODE CRIMINAL FROG. art. 45.017.
Further, Attorney McCray sought not to enter an objectiBn in regards
to the existence of a conflict of interest. "In a juvenile case, used by a
district attorney of facts acquired during the existence of a prior attorney-
client relationship with the juvenile would not only violate the attorney-
client privilege, but would also deprive the juvenile of his constitutional
right to due prilcess and his right against self-incrimination, requiring courts
to examinlk,every potential infringment with exacting scrutiny." See State
Ex Re. Sherrod v. Carey, 790 S.W. 705 (Tex.App. -Anrarillo 1990).
Because Relator was under the custody of CPS, he was represented by the
Bexar County District Attorney's office.
B. Violation of Due Process
The ineffectiveness of counsel is a violation of Due Process. "An ac
cused person cannot effectively defend himself. The assistance of counsel
is necessary to due process and to a fair trial. Without counsel, the accused
cannot possibly evaluate the lawfulness of his arrest, the validity of the
indictment...vdiether preliminary motions should be filed. He cannot determine
whether he is responsible for the crime as charged or a lesser offense. He
cannot discuss the possibilities of pleading to a lesser offense. He cannot
evaluate the grand or petit jury. At the trial he cannot interpose ejections
to evidence or cross-examining witnesses, etc. He is at a lost in the sentenc
ing procedure." See Gideon v. Wainwright, 372 U.S., at 335 (1963).
GROUND TWO
TRIAL COURT ERRED IN DEMING RELATOR'S MOTION TO RECUSE THE
DISTRICT ATTORNEY'S OFFICE WHERE AN ACTUAL CONFLICT OF INTEREST EXISTED
Issue Presented:
A. Conflict of Interest
The Bexar County district attorney's office was in representation of
Relator simultaneous to the above cause.
A. Conflict of Interest
In accordance with Defendant's 2nd Motion to Recuse the Bexar County
District Attorney and Appoint Special Prosecutor, and in reference to case
number 2005-PA-01633, the Bexar County district attorney's office filed, on
August 5, 2005, petitioning the 150th District Court of Bexar County in re
gards to a termination suit. The 150th Judicial District Court of Bexar County
appointed the Bexar County district attorney's office to represent Relator.
Although Attorney McCray referred to Relator as a former client, in actuali
ty, Relator was represented by the District Attorney's office simultaneously
to this cause because CPS had not properly been released as Managing Conser
vator. "When a district attorney prosecutes someone whom he previously repre
sented in the same case, the conflict of interest is obvious and the inte
grity of the prosecutor's office suffers." See Ex Parte Spain, 589 S.W.2d
132, 134 (Tex.Crim.App. 1979); Canady v. State. 100 S.W.3d 28 (Tex.App. —
Waco 2002). This is violative of the U.S. CONST. 5, 14; TEX. CONST. Art. 1
§ 19.
GROUND THREE
RELATOR'S CASE IS RENDERED VOID BY JURISDICTlONAL DEFECT
Jurisdiction to try and punish for a crime cannot be acquired by the
mere assertion of it, or invoked otherwise then in the mode prescribed by
law, and if it is not so acquired or invoked, any'judgment is a nullity. If
a court holds trial without jurisdiction over the subject-matter, it violates
not only the Due Process Clause of the Fifth and Fourteen Amendment of the
United States Constitution, but also the Due Course Clause of Art. 1, § 13,
19 of the Texas Constitution. See also. Ex Parte Seidel, 39 S.W.3d 221 (Tex.
Crim.App. 2001).
Relator, assert first, that he was never issued a summons for Aggravated
Kidnapping, but for Attempted Aggravated Sexual Assault. Assuming arguendo
that it was appropriately issued, it would still fail because, first, it was
signed by Relator's mother who had previously had her parental rights temi-
nated, and second, the only summons issued was to Relator by his attorney.
See Ejchibit A Summons.
Although Judge Jarrett ordered the Probation Officer Erin J. McQueen
to issue a Summons, it was issued to Relator by his attorney on February 24,
2011. "Service oh secretary of juvenile's attorney of summons and petition
for juvenile to appear at hearing on waiver of juvenile jurisdiction, and
certification for prosecution as adult,.did not comply with requirement to
personally serve juvenile." See Alaniz, supra. Although Relator and his mother's
signature appears on the Summons, it reveals a signature date at February
24, 2011. The simmons was not recorded as an official document until March
25, 2011.
And the juvenile court, in accordance with FAM CODE § 53.06, was manda-
torily requited to direct the issuance of summons to both the child and the
child's parent, guardian, or custodian.
Relator also assert that the three step requirement "before juvenile
can be tried as an adult are a transfer hearing, an examining trial, and a
grand jury's deliberation; trial may then follow; if one of those steps is
omitted or rendered void by a jurisdictional defect, there can be no juris
diction to prbceed with the next step," was not adhered to. See Watson, and
Rushing, supra.
In conjunction with the criminal docket, there was no examining trial.
See Exhibit B Docket.
8
There is also a jurisdictional defect in regards to an actual conflict
of interest; The Bexar County district attorney's office was in representation
of Relator simultaneous to the above cause.
In accordance with Defendant's 2nd Motion to Recuse the Bexas County
District Attdney and Appoint Special Prosecutor, and in reference to cause
number 2005-PA-01633, the Bexar County district attorney's office filed on
August 5, 2005, petitioning the 150th District Court of Bexar County in re
gards to a termination suit. The 150th Judicial District Court of Bexar County
appointed the Bexar County district attorney's office to represent Relator.
Although Attorney McCray referred to Relator as a former client, in actuali
ty, Relator was represented by the District Attorney's office simultaneously
to this cause because CPS had not properly been released as Managing Conser
vator. See State Ex Rel Sherrod, supra. This is vi!ci>lative of the U.S. CONST.
5, 14; TEX. CONST. Art. I Sec. 19.
"A void judgment is a nullity and can be attacked at any time." See Ex
Parte Patterson, 969 S.W.2d 16, 19 (Tex.Crira.App. 1998).
WHEREFORE, PREMISES CONSIDERED, Relator prays this Honorable Court,
after expiration of the time within which the attorney representing the State
may file and answer to conduct an evidentiary hearing. It is so moved and
prayed that this writ of habeals corpus be, in all things, GRANTED
It's in God We Ttust!!!
Respectfully submitted.
Andy Q^Hchez, fro sef"lator
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing writ
of habeas corpus has been sent to the Office of the District Attorney of Bexar
Ctiunty, Taxas via U.S. Mail this the 21st day of September, 2017.
-—^
Andy Sanchez, Pro se, Relator
EXHIBIT A
SUMMONS
F i L P"0
SUMMONS-ORIGINAL PETITION OiSTRICfGLERK
BEXAR CO. TEXAS
THE STATE OF TEXAS 20fl MAR 25 P j: { Cj
TO; MCQUEEN,EIUN J
600 MISSION ROAD
SAN ANTONIO,TX 78210
GREETINGS: SUSAN D. REED, Criminal District Attorney, of Bexar County,
Texas. WHEREAS, in a certain cause pending on the docket of the Juvenile Court of
Bexar County, Texas, being Cause No.: 2010JUV02881 stvled IN THE MATTER OF:
ANDY SANCHEZ. A CHILD, in said suit ^d ORIGINAL PETITION FOR WAIVER
OF JURISDICTION AND DISCRETIONARY TRANSFER TO CRIMINAL COURT
have been filed, copies of which are hereto attached. Upon presentation of said Petitions,
the Honorable LISA JARRETT. has entered the following order to issue summons to:
ANDY SANCHF/
THEREFORE, you are hereby commanded and required to be and appear before
the 436TH JUDICIAL DISTRICT COURT in and for the County of BeXar, Sitting as a
Juvenile Court at 600 MISSION, JUVENILE JUSTICEXENTER in the City of San
Antonio, Texas, on the OSliday of APRIL 2011 in the-"H DISTRICT COURT at
08;30A.M. o'clock, then and there to answer the said allegations of the petitions and for
the purpose of considering Discretionary Transfer to Criminal Court for ATT AGG
SEXUAL ASSA.ULT. pursuant to Section 54.02(b) Texas Family Code. All of said
persons are required to appear before said Court at said time.
WITNESS, DONNA KAY M-Kinney, Clerk of the Juvenile Court, of Bexar
County, Texas. Issued and given under my hand and Seal of Office, in said Court, in the
City of San Antonio, Bexar County, Texas, this 14™ dav of FEBRUARY A.D..2Q11.
Donna Kay M-Kinney,
CLERK.of the Juvenile Court of
County,Texas . .
OF BY: [Jjkaul dJuam-a^
<5 DEPUTY
ons/iqrigiN^Petition for waiver of jurisdiction and
ER TO CRIMINAL COURT were served upon:
o-
\ / h CHILD/RESPONDENT:
DATE: U,ArKl Saf\Ck^E:
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EXHIBIT B
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DYS MOS(BCADCXSTATE JABLXCondofStgnr)
(WotkXWeekmid)Release Piognm(Cotid ofStqiervan)
Found TRUE to EnhaiisemaitParBgniphas'aRqpeBter
Found TRUE to Enhanoemrait Paiagnpha oa a HMtitual
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MARGARET G. MONTEMAYOR,
BEXAR COUNTY DISTBTCT CLERK
By: DEPUTY
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