Stuart Adam Latham v. State ( 2015 )


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  •                                                                            ACCEPTED
    01-15-00612-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    10/27/2015 7:01:07 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00612-CR
    IN THE FIRST COURT OF APPEALS       FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS            HOUSTON, TEXAS
    10/27/2015 7:01:07 PM
    CHRISTOPHER A. PRINE
    Clerk
    STUART ADAM LATHAM,
    Appellant,
    V.
    STATE OF TEXAS,
    Appellee.
    APPEAL FROM THE 180TH DISTRICT COURT, HARRIS COUNTY,
    TEXAS TRIAL COURT CAUSE NO. 1356904
    APPELLANT’S BRIEF
    THE CLOUD LAW FIRM P.C.
    Carvana Cloud
    Texas Bar No. 24048544
    850 W. Little York Rd. Ste. B
    Houston, Texas 77091
    Telephone: 832-230-4210
    Fax: 832-230-4684
    Email: carvana@cloudlawfirm.net
    Counsel for Appellant
    IDENTITY OF PARTIES AND COUNSEL
    Appellant
    Stuart Adam Latham
    Counsel for Appellant
    Carvana Cloud
    THE CLOUD LAW FIRM
    850 W. Little York, Suite B
    Houston, TX 77091
    Appellee
    The State of Texas
    Counsel for Appellee
    Alan Curry
    Harris County District Attorney’s Office
    1201 Franklin Ste. 600
    Houston, TX 77002-1923
    Trial Counsel for Appellant
    Joseph S. Owmby
    708 Main Street, Suite 790
    Houston, Texas 77002
    Trial Counsel for the State
    Ryan Trask
    Assistant District Attorney
    Harris County District’s Attorney’s Office
    1201 Franklin, Suite 400
    Houston, Texas 77002
    i
    TABLE OF CONTENTS
    Identity of Parties and Counsel ............................................................................... i
    Index of Authorities ............................................................................................. iii
    Statement of the Case ............................................................................................. 1
    Waiver of Oral Argument ....................................................................................... 1
    Statement of Jurisdiction ........................................................................................ 1
    Issues Presented ...................................................................................................... 1
    I.     THE TRIAL COURT ERRED WHEN IT ADJUDICATED THE
    APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY
    INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION
    BECAUSE THE STATE’S PRIMARY WITNESS LACKED
    CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED.
    II.     THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
    APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS
    DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS
    TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF
    THIS CASE.
    Statement of Facts .................................................................................................. 2
    Summary of the Argument ..................................................................................... 4
    Argument ................................................................................................................ 5
    I.     THE TRIAL COURT ERRED WHEN IT ADJUDICATED THE
    APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY
    INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION
    BECAUSE THE STATE’S PRIMARY WITNESS LACKED
    CREDIBILITY    AND     HER    TESTIMONY     WAS
    UNCORROBORATED……………………………………………………..7
    ii
    II.     THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
    APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS
    DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS
    TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF
    THIS CASE .................................................................................................. 11
    Conclusion and Prayer ............................................................................................ 13
    ii
    INDEX OF AUTHORITIES
    Cases
    Amado v. State, 
    983 S.W.2d 330
    , 332 (Tex. App.—Houston [1st Dist.] 1998, pet.
    ref'd). ....................................................................................................................... 7
    Anderson v. State, 
    621 S.W.2d 805
    (Tex.Cr.App. 1981). ...................................... 6
    Cardona v. State, 
    665 S.W.2d 492
    , 493 (Tex. Crim. App. 1984). ........................ 6
    Greathouse v. State, 
    33 S.W.3d 455
    , 458 (Tex. App.—Houston [1st Dist.] 2000,
    pet ref'd). ................................................................................................................. 
    6 Taylor v
    . State, 
    604 S.W.2d 175
    , 179 (Tex. Crim. App. 1980). ........................... 6-7
    Rickels v. State, 
    202 S.W.3d 759
    , 764 (Tex. Crim. App. 2006). .......................... 6-7
    Robinson v. California, 
    370 U.S. 660
    , 
    82 S. Ct. 1417
    (1962). ................................ 11
    Scamardo v. State, 
    517 S.W.2d 293
    , 298 (Tex. Crim. App. 1974). ....................... 6
    Solem v. Helm, 
    463 U.S. 277
    , 290, 
    103 S. Ct. 3001
    , 3009, 77 L.Ed2d 637 (1983).11
    Swinney v. State, 
    828 S.W.2d 254
    , 259 (Tex. App. - Houston [1st. Dist.] 1992). . 11
    Walkovak v. State, 
    576 S.W.2d 643
    (Tex.Cr.App. 1979). .................................... 6
    Statutes
    TEX. PENAL CODE ANN. § 22.01 (Vernon 2015). ................................................... 1
    Rules
    TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon 2015) ............................ 5
    TEX. R. APP. PROC. 39.7 ......................................................................................... 1
    Constitutional Provisions
    TEX. CONST. art. I, § 13 .......................................................................................... 11
    U.S. CONST. amend. VIII ........................................................................................ 11
    U.S. CONST. amend. XIV ........................................................................................ 11
    iii
    STATEMENT OF THE CASE
    Pursuant to Texas Penal Code § 22.01, Appellant was indicted for the
    offense of Assault of a Family Member. (1 C.R. 16). Appellant entered a plea of
    guilty on December 10, 2012. (1 C.R. 20-21). Appellant was placed on Deferred
    Adjudication for a period of two years community supervision with a fine of five
    hundred dollars. (1 C.R. 26). On December 2, 2014, the State filed a Motion to
    Adjudicate Appellant’s guilt alleging that he had violated the terms of his
    community supervision when he committed an offense against the laws of the State
    of Texas. (1 C.R. 33-34). Appellant entered a plea of “not true.” (1 C.R. 41). On
    June 26, 2015 the Court held a hearing on the Motion to Adjudicate Guilt and
    Appellant was found guilty of Assault of a Family Member – Second Offender.
    Appellant was sentenced to five years confinement in the Texas Department of
    Corrections (“TDC”). (1 C.R. 41).
    WAIVER OF ORAL ARGUMENT
    Pursuant to Tex. R. App. Proc. 39.7, Appellant waives oral argument.
    STATEMENT OF JURISDICTION
    The judgment of the Harris County 180th District Court was entered on June
    26, 2015. Appellant filed a timely Notice of Appeal on June 26, 2015. This Court
    has requested briefs on the merits.
    1
    ISSUES PRESENTED
    I.   THE TRIAL COURT ABUSED ITS DISCRETION BY ADJUDICATING
    APPELLANT BECAUSE THE EVIDENCE WAS FACTUALLY
    INSUFFICIENT TO SUPPORT APPELLANT’S ADJUDICATION
    BECAUSE THE STATE’S PRIMARY WITNESS LACKED
    CREDIBILITY AND HER TESTIMONY WAS UNCORROBORATED.
    II.   THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
    APPELLANT TO FIVE YEARS CONFINEMENT IN THE TEXAS
    DEPARTMENT OF CORECTIONS AS SUCH SENTENCE AMOUNTS
    TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN THE FACTS OF
    THIS CASE.
    STATEMENT OF FACTS
    Stuart Latham, Appellant, was indicted for Assault of a Family Member -
    Second Offender on October 26, 2012. (1 C.R. 16). On December 10, 2012,
    Appellant pleaded guilty to Assault of a Family Member – Second Offender as
    alleged in the indictment. (1 C.R. 20-21). The Court placed Appellant on deferred
    adjudication for two years, ending December 9, 2014 and assessed a fine of five
    hundred dollars. (1 C.R. 26). On December 2, 2014, the State filed a Motion to
    Adjudicate Appellant’s guilt alleging that Appellant violated the terms and
    conditions of the Community Supervision by: (1) Committing an offense against
    the State of Texas. (1 C.R. 33-34). The Motion alleged that on or about November
    8, 2014, in Harris County, Texas, the Appellant did then and there unlawfully,
    intentionally, and knowingly cause bodily injury to Jessica Wingerter, a person
    with whom the appellant had a dating relationship. (1 C.R. 33-34).
    2
    On June 26, 2015, the Appellant pleaded “not true” to the allegations at the
    hearing on the motion to adjudicate. (1 R.R. 91). At the hearing, the State’s
    primary witness was the complainant, Jessica Wingerter. (1 R.R. 12). During Ms.
    Wingerter’s testimony, she testified that she had been in a dating relationship with
    Appellant for “four, five years” but they had broken up.        (1 R.R. 16).    Ms.
    Wingerter alleged that on November 8, 2014 Appellant went to her home and put
    his arm around her neck, which prevented her from breathing for a few seconds. (1
    R.R. 18). The witness testified that she did not call the police until November 11,
    2014, three days later, to report this incident. (1 R.R. 22).
    Ms. Wingerter testified that she was unable to recall parts of the incident
    because at the time of the hearing it had been seven months since the alleged
    incident. (1 R.R. 15). She testified she could not recall whether her cousin, Corina
    Ventura, was present at her home when the incident occurred. (1 R.R. 15). She
    testified that she could not remember if Ms. Ventura was present when she was
    interviewed by the Harris County Constable’s Office. (1 R.R. 21). She could
    recall, however, that Ms. Ventura was interviewed by the Harris County
    Constable’s Office but she could not recall how she was interviewed. (1 R.R. 22).
    Appellant took the stand and testified on his behalf. His testimony was that
    on November 8, 2014, he and Ms. Wingerter were involved in an argument but
    denied ever placing his forearm or his hands around her neck or choking her. (1
    3
    R.R. 72, 74). Appellant also stated that he voluntarily went to their shared home in
    Tomball only after she sent him a text message inviting him over for dinner. (1
    R.R. 66). Appellant introduced a series of text messages sent from Ms. Wingerter
    to Appellant, Defendant’s Exhibits 1 through 12, which were sent between the
    dates of November 8, 2014 to November 11, 2014, proving that Ms. Wingerter
    invited him over for dinner. (1 R.R. 61). When Ms. Wingerter was questioned
    about whether she sent the text messages, she stated she could not remember and
    also denied making them. (1 R.R. 29-34, 44). She further speculated that the text
    messages presented in the hearing were created by Appellant’s cousin who worked
    in the Information Technology (IT) field, as a result of him hacking into her Gmail
    account (1 R.R. 29-34, 36). There is no substantiation or corroboration of this
    allegation in the record.
    The Court found that Appellant did violate the terms and conditions of the
    community supervision and found him guilty of Assault of a Family Member –
    Second Offender. (1 R.R. 89). The Court sentenced Appellant to five years
    confinement in the Texas Department of Corrections (“TDC”). (1 R.R. 89).
    On June 26, 2015, Appellant timely filed his Notice of Appeal.
    SUMMARY OF THE ARGUMENT
    Appellant raises two points of error. First, Appellant contends that the trial
    court erred when it adjudicated Appellant because the evidence was factually
    4
    insufficient to support an adjudication of guilt because the state’s primary witness
    lacked credibility. This claim is based on the fact that the State failed to meet its
    burden when it presented only one witness, Ms. Wingerter, the complainant, as
    proof that the Appellant violated a term of his community supervision.           Ms.
    Wingerter’s testimony was factually insufficient and uncorroborated and is thus
    unable to support Appellant’s adjudication of guilt and sentence of five (5) years
    confinement in TDC.
    Next, Appellant contends that the trial court abused its discretion by
    sentencing Appellant to five (5) years confinement in TDC as such sentence
    amounts to cruel and unusual punishment given the facts of this case. The record
    is clear that Appellant’s term of community supervision was set to expire on
    December 10, 2014 and this new assault case was filed against him by Ms.
    Wingerter on November 8, 2014, one month before his probation was set to end.
    Because Appellant had no prior felony convictions and had completed ALL other
    conditions and term of his community supervision, a sentence of five (5) years
    TDC is considered cruel and unusual punishment.
    ARGUMENT
    I.    BURDEN OF PROOF AND STANDARD OF REVIEW ON APPEAL
    An appellant may appeal from a revocation of community supervision. Tex.
    Code Crim. Proc. Ann. art. 42.12, § 5(b). In community supervision revocation
    5
    cases, the State has the burden to establish by a preponderance of the evidence that
    the terms and conditions of community supervision have been violated. Cardona
    v. State, 
    665 S.W.2d 492
    , 493 (Tex. Crim. App. 1984) (citing Anderson v. State,
    
    621 S.W.2d 805
    (Tex.Cr.App. 1981). This standard is met when the greater weight
    of the credible evidence before the trial court supports a reasonable belief that a
    condition or term of community supervision has been violated. Rickels v. State,
    
    202 S.W.3d 759
    , 764 (Tex. Crim. App. 2006); Scamardo v. State, 
    517 S.W.2d 293
    ,
    298 (Tex.Cr.App. 1974).
    The Court of Appeals of Texas reviews a trial court’s order revoking
    community supervision under an abuse of discretion standard. 
    Id. at 763.
    If the
    State fails to meet its burden, the Court abuses its discretion in issuing a motion to
    revoke probation. Greathouse v. State, 
    33 S.W.3d 455
    , 458 (Tex. App.—Houston
    [1st Dist.] 2000, pet ref'd); Walkovak v. State, 
    576 S.W.2d 643
    (Tex.Cr.App.
    1979). In conducting its review, the appellate court considers all the evidence in
    the light most favorable to the trial court’s finding to determine whether the trial
    court could have reasonably found that appellant violated the terms and conditions
    of his probation by a preponderance of the evidence. Greathouse v. State, 
    33 S.W.3d 455
    , 458 (Tex. App.—Houston [1st Dist.] 2000, pet ref'd). The trial judge
    is the sole trier of the facts and determines the credibility of the witnesses and the
    weight to be given to their testimony. Taylor v. State, 
    604 S.W.2d 175
    , 179 (Tex.
    6
    Crim. App. 1980); Amado v. State, 
    983 S.W.2d 330
    , 332 (Tex. App.—Houston [1st
    Dist.] 1998, pet. ref'd).
    II.    THE TRIAL COURT ABUSED ITS DISCRETION BY
    ADJUDICATING APPELLANT BECAUSE THE EVIDENCE WAS
    FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S
    ADJUDICATION OF GUILT BECAUSE THE STATE’S PRIMARY
    WITNESS LACKED CREDIBILITY AND HER TESTIMONY WAS
    UNCORROBORATED.
    In assessing the factual sufficiency of the evidence, the court considers all
    the evidence in the light most favorable to the trial court’s finding to determine
    whether the trial court could have reasonably found that appellant violated the
    terms and conditions of his probation by a preponderance of the evidence. See
    Rickels v. State, 
    202 S.W.3d 759
    , 763-64 (Tex. Crim. App. 2006). The trial judge
    is the sole trier of the facts and determines the credibility of the witnesses and the
    weight to be given to their testimony. Taylor v. State, 
    604 S.W.2d 175
    , 179 (Tex.
    Crim. App. 1980); Amado v. State, 
    983 S.W.2d 330
    , 332 (Tex. App.—Houston [1st
    Dist.] 1998, pet. ref'd).
    Viewed in the light most favorable to the trial court’s decision to adjudicate
    guilt, there was insufficient evidence that appellant violated the terms of his
    community supervision. The State failed to meet its burden when it presented
    solely one witness, the complainant, Ms. Wingerter, to testify to what occurred on
    November 8, 2014. Her testimony, alone, was insufficient to support a sentence of
    five (5) years because she lacked credibility and her testimony was uncorroborated.
    7
    This case depended entirely upon the credibility of the complainant versus
    the credibility of the Appellant. Both Appellant and complainant told opposing
    accounts about what occurred on November 8, 2014. Ms. Wingerter stated that
    Appellant put his arm around her neck and Appellant testified that this never
    occurred. The trial court, being the sole trier of the facts, should have determined
    that Ms. Wingerter lacked credibility when she gave conflicting testimony. Ms.
    Wingerter described this alleged attack as being horrible, yet she maintained
    communication with Appellant for three days after this incident allegedly occurred.
    When confronted about her constant communication via text message with
    Appellant, Ms. Wingerter responded that she did not recall sending any text
    messages. She further responded that the text messages were somehow obtained
    because someone hacked into her personal accounts.
    Ms. Wingerter lacked credibility when she testified at the adjudication
    hearing. She repeatedly stated that she could not recall parts of what occurred on
    November 8, 2014 and could not remember whether she drafted the text messages
    that were sent to Appellant’s phone. Ms. Wingerter stated that she thought her
    cousin, Corina Ventura, was present at her home on November 8, 2014. (1 R.R.
    15). Then she stated that she could not remember if her cousin was sleeping when
    the incident occurred. (1 R.R. 17). Later, she testified that she could not recall
    whether her cousin was present at the home because it had been seven months
    8
    since the alleged incident had occurred. (1 R.R. 20). She further testified that she,
    Ms. Wingerter, had been interviewed three days later in front of her home by the
    Harris County Constable’s Office but she could not recall whether Ms. Ventura
    was interviewed with her. (1 R.R. 22, 51). She did recall however that Ms.
    Ventura was interviewed by the Harris County Constable’s Office. (1 R.R. 22).
    She also testified that she could not remember whether her cousin, Ms. Ventura
    knocked on her door during the time of the incident. (1 R.R. 23-24).
    Ms. Wingerter also lacked credibility because she could not recall the
    existence of a series of text messages that were sent from her to Appellant from
    November 8, 2014 to November 11, 2014. She could neither recall what her
    cellular phone number was nor what her cellular phone looked like. (1 R.R. 25).
    Ms. Wingerter also could not recall what the Appellant’s cellular phone looked
    like. (1 R.R. 26). She testified that she could not recall or remember when she
    first communicated, either by text or voicemail, with Appellant on or after
    November 8, 2014. (1 R.R. 28). When Ms. Wingerter was shown pictures of the
    text messages, Defendant’s Exhibits 1-12, she denied drafting and sending the text
    messages and stated that her computer had been hacked. (1 RR. 29-34, 36). She
    did testify, however, that some of the text messages did look familiar, like she
    would have written them. (1 RR. 34). Later, she testified that she did not send any
    text messages to Appellant between the dates of November 8, 2014 through
    9
    November 11, 2014. (1 R.R. 44). Ms. Wingerter could not remember other details
    surrounding the alleged incident. For example, she could not remember whether
    she went to her parent’s home that day or whether she stayed home. (1 R.R. 49).
    Ms. Wingerter’s recount of the alleged incident was completely
    uncorroborated. Her cousin, Ms. Ventura, who may have been present during the
    alleged incident and who was interviewed by the Harris County Constable’s Office
    after the incident, was not present at the adjudication hearing and did not testify to
    what occurred that night. (1 R.R. 52). Yet, Ms. Wingerter stated she still had
    contact with her cousin and knew where she lived. (1 R.R. 52). The State did not
    introduce any other testimony or evidence to corroborate Ms. Wingerter’s recount
    of what occurred on November 8, 2014.
    The trial court erred by adjudicating Appellant based on the aforementioned
    testimony of Ms. Wingerter, a witness who lacks credibility and provided
    inconsistent testimony throughout the hearing. The trial court also erred when it
    ignored the tangible text messages provided by Appellant which clearly
    demonstrate that Ms. Wingerter invited him to their home for dinner on November
    8, 2014. The testimony of Ms. Wingerter, alone, is factually insufficient to support
    Appellant’s adjudication of guilt because she lacks credibility and because her
    testimony was uncorroborated. Accordingly, because the State failed to meet its
    burden that the Appellant violated a term of his community supervision, the trial
    10
    court abused its discretion when adjudicating Appellant and sentencing him to five
    (5) years confinement in TDC.
    III.   THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING
    APPELLANT TO FIVE (5) YEARS CONFINEMENT IN THE TEXAS
    DEPARTMENT OF CORECTIONS AS SUCH SENTENCE
    AMOUNTS TO “CRUEL AND UNUSUAL PUNISHMENT” GIVEN
    THE FACTS OF THIS CASE.
    The 8th and 14th Amendment of the United States Constitution prohibits the
    imposition of sentences that are cruel and unusual. U.S. CONST. amend. VIII, XIV.
    Similarly, the Texas Constitution forbids the infliction of cruel and unusual
    punishment.     TEX. CONST. art. I, § 13.       Generally, a sentence between the
    punishment range does not violate the cruel and unusual punishment prohibition.
    Swinney v. State, 
    828 S.W.2d 254
    , 259 (Tex. App. - Houston [1st. Dist.] 1992).
    However, the Supreme Court has held that “as a matter of principle a criminal
    sentence must be proportionate to the crime for which the defendant has been
    convicted.” Solem v. Helm, 
    463 U.S. 277
    , 290, 
    103 S. Ct. 3001
    , 3009, 77 L.Ed2d
    637 (1983). A sentence that is greatly disproportionate to the crime or shocks the
    conscious may be deemed cruel and unusual. 
    Id. “As the
    court noted in Robinson
    v. California, a single day in prison may be unconstitutional in some
    circumstances.” 
    Id. (citing Robinson
    v. California, 
    370 U.S. 660
    , 667, 
    82 S. Ct. 1417
    (1962)).
    11
    Under the facts of this case, a sentence of five years is cruel and unusual
    punishment; thus the trial Court abused its discretion. When the alleged new law
    violation occurred, Appellant was one month away from completing the two year
    community supervision term, which he was granted (1 R.R. 52). The community
    supervision term would have ended on December 9, 2014 and the alleged incident
    occurred on November 8, 2014. (1 R.R. 52). The State filed the Motion to
    Adjudicate Guilt on December 2, 2014, only seven days away from the end of his
    community supervision term. (1 C.R. 33-34). The Court could have reinstated
    community supervision for a longer term and/or mandated him to rehabilitation or
    treatment. Instead, the Court sentenced Appellant to five (5) years confinement in
    TDC. Although the punishment range for Assault of a Family Member - Second
    Offender is two to ten years confinement in TDC, the Court sentenced Appellant to
    an amount in the middle of the range of punishment even though Appellant had no
    prior felony convictions and had successfully completed ALL other conditions of
    community supervision. Because the Supreme Court has held that even sentences
    that are within the legal range of punishment could be deemed cruel and unusual,
    Appellant’s sentence violated this prohibition.     Furthermore, as stated above,
    because the evidence was factually insufficient to support an adjudication of guilt,
    Appellant’s sentence of five (5) years confinement in TDC can be considered cruel
    and unusual give the facts of this case.
    12
    CONCLUSION AND PRAYER
    For the reasons stated above, Appellant respectfully requests that this Court
    reverse his conviction for Assault of a Family Member - Second Offender and
    sentence of five (5) years confinement in TDC and remand this case to the trial
    court for a new adjudication hearing.
    THE CLOUD LAW FIRM, P.C.
    /S/ CARVANA CLOUD
    Carvana Cloud
    State Bar No.: 240485544
    THE CLOUD LAW FIRM
    850 W. Little York, Suite B
    Houston, TX 77091
    832-230-4210 (office)
    832-230-4684 (facsimile)
    carvana@cloudlawfirm.net
    ATTORNEY FOR APPELLANT
    13
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
    this brief contains 2,931 words (excluding the caption, table of contents, table of
    authorities, signature, proof of service, and certificate of compliance). This is a
    computer-generated document created in Microsoft Word, using 14-point typeface
    for all text, except for footnotes, which are in 12-point typeface. In making this
    certificate of compliance, I am relying on the word count provided by the software
    used to prepare the document.
    THE CLOUD LAW FIRM, P.C.
    /S/ CARVANA CLOUD
    Carvana Cloud
    State Bar No.: 240485544
    THE CLOUD LAW FIRM
    850 W. Little York, Suite B
    Houston, TX 77091
    832-230-4210 (office)
    832-230-4684 (facsimile)
    carvana@cloudlawfirm.net
    ATTORNEY FOR APPELLANT
    14
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of Appellant’s Brief was served by
    electronic service and the electronic submission was reported as complete on this
    26th day of October 2015 upon the following person: Alan Curry at
    curry_alan@dao.hctx.net.
    THE CLOUD LAW FIRM, P.C.
    /S/ CARVANA CLOUD
    Carvana Cloud
    State Bar No.: 240485544
    THE CLOUD LAW FIRM
    850 W. Little York, Suite B
    Houston, TX 77091
    832-230-4210 (office)
    832-230-4684 (facsimile)
    carvana@cloudlawfirm.net
    ATTORNEY FOR APPELLANT
    15