Andrew Whitaker v. State ( 2015 )

ACCEPTED
12-15-00068-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/20/2015 12:00:00 AM
CATHY LUSK
CLERK
CASE NO.:12-15-00068-CR & 12-15-00069-CR
____________________________________________________________
RECEIVED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
TEXAS COURT OF APPEALS
7/19/2015 8:51:49 PM
TWELFTH SUPREME JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
____________________________________________________________
On Appeal from Cause No. F1421007 & F1521497
420th Judicial District Court
Nacogdoches County, Texas
____________________________________________________________ 7/19/2015
ANDREW PJ WHITAKER,
Appellant
VS.
THE STATE OF TEXAS
____________________________________________________________
BRIEF OF APPELLANT
____________________________________________________________
Respectfully submitted,
Winfred A. Simmons, II
Attorney for Appellant
Pursuant to Rule 75 of the Texas Rules 115 West Shepherd Avenue
of Appellate Procedure, Appellant Lufkin, Texas 75904
does requests oral argument. (936) 632-3242- Telephone
(936) 632-4325- Facsimile
Texas Bar No. 00794636
lawyersimmons@consolidated.net
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 55.2 (a), the following is a list of parties to the trial
court’s judgment and the names and addresses of trial and appellate counsel.
1. Andrew PJ Whitaker, Appellant
2. John Boundy
Counsel for Appellant at trial
2428 Douglas Road
Nacogdoches, Texas 75961
(936) 371-9484
3. Winfred A. Simmons, II
Counsel for Appellant on Appeal
115 West Shepherd Avenue
Lufkin, Texas 75904
(936) 632-3242
4. Cristian Lane
Counsel for The State of Texas at Trial
Assist. District Attorney for Nacogdoches County
101 W. Main Street
Nacogdoches, Texas 75961
(936) 560–7766
5. Andrew Jones
Counsel for The State of Texas on Appeal
Assist. District Attorney for Nacogdoches County
101 W. Main Street
Nacogdoches, Texas 75961
(936) 560–7766
6. The Honorable Edwin A. Klien
Trial Judge, 420th Judicial District Court
Nacogdoches County
101 W. Main Street
Nacogdoches, Texas 75961
(936) 560–7848
i.
TABLE OF CONTESTS
PAGE
Identify of All Parties............................................................................ i.
Table of Contents.................................................................................. ii.
Index of Authorities.............................................................................. iii.
Statement of the Case........................................................................... v.
Issues Presented.................................................................................... v.
Statement of Facts................................................................................. v.
Summary of Argument.......................................................................... vi.
Argument.............................................................................................. 1.
Prayer.................................................................................................... 11.
Certificate of Service............................................................................ 11.
ii
INDEX OF AUTHORITIES
CASES: PAGE
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). 2,3,4
Banks v. State, 530 S.W.2d 940 (Tex. Crim. App. 1975). 9
Burkholder v. State, 660 S.W.2d 540 (Tex. Crim. App. 1983). 6
Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). 6
Copeland v. State, 747 S.W.2d 14 (Tex. App.– Houston [1st. Dist.] 1988, no pet.) 6
Gardner v. State, 780 S.W.2d 259 (Tex. Crim. App. 1989). 2, 6
Green v. Massey, 437 U.S. 19, 57 L. Ed. 2d 15, 98 S. Ct. 2151 (1998). 7
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). 6
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997). 9
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). 3
McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989). 2,5
Lynch v. State, 643 S.W.2d 737 (Tex. Crim. App. 1983). 2,4,5,8
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998). 2,3,4
Rankin v. State, 995 S.W.2d 210 (Tex. App. – Houston [14th Dist.] 1999, pet. ref’d). 9
Ryland v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). 7
Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995) 3
Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 91984). 7
Skillern v. State, 890 S.W.2d 849 (Tex. App. – Austin 1994, pet. ref’d). 9
Soliz v. State, 97 S.W.3d 137 (Tex Crim. App. 2003). 9
State v. Blankenship, 170 S.W.3d 676 (Tex. Crim, App. 2005). 9
Van Gulder v. State, 709 S.W.2d 178 (Tex. Crim. App.) cert. denied,
467 U.S. 1169, 106 S. Ct. 2891,90 L.Ed. 2d 978 (1986) 6
RULES AND STATUTES
Texas Penal Code Ann. 1.07 (35) 4
Texas Penal Code Ann. 31.07 2
Texas Rules Appellant Procedure 44.2 9, 10
iii.
CASE NO.:12-15-00068-CR & 12-15-00069-CR
____________________________________________________________
IN THE
TEXAS COURT OF APPEALS
TWELFTH SUPREME JUDICIAL DISTRICT
TYLER, TEXAS
____________________________________________________________
On Appeal from Cause No. F1421007 & F1521497
420th Judicial District Court
Nacogdoches County, Texas
____________________________________________________________
ANDREW PJ WHITAKER,
Appellant
VS.
THE STATE OF TEXAS
____________________________________________________________
BRIEF OF APPELLANT
____________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
In the January term of 2015, Appellant was indicted on one count of Unauthorized
Use of a Motor Vehicle and one count of Evading Arrest. At the close of evidence, on
February 25, 2015, Appellant requested a motion for directed verdict based on the State’s
failure of prove venue. The Trial Court denied Appellant’s motion. On February 25,
2015, Appellant was found guilty of one count of Unauthorized Use of a evading arrest
iv.
and one count of Evading Arrest. Appellant was sentenced to thirteen (13) years
confinement in the Texas Department of Criminal Justice– Institutional Division on the
evading count and two (2) years state jail on the unauthorized use count. It is from these
verdicts which Appellant appeals.
For Purposes of clarity, the Appellant will be refer to the Clerk’s Record as “CR”
and the Reporter’s Record as “RR” and cite the volume and page number in order to not
confuse the two records when citing such documents. When referencing Defense
Exhibits, the abbreviation “DE” will be used.
ISSUES PRESENTED
1. Whether the appellant was deprived of a fair trial when defense of mistake of
fact was raised by evidence but charge was submitted without objection or request?
2.Whether the evidence of unauthorized use of a motor vehicle presented at trial
was sufficient to withstand challenge on appeal?
3.Whether the failure to request an instruction on the defense of mistake of fact
constitutes ineffective assistance of counsel?
4.Whether appellant was sufficiently harmed by the failure of proof of venue to
reverse and remand for a new trial?
STATEMENT OF THE FACTS
During the January term 2015, Appellant was indicted on one count of
Unauthorized Use of a Motor Vehicle and one count of Evading Arrest. The State
alleged, in its indictment, Appellant committed Unauthorized Use by “intentionally and
knowingly” operate a motor-propelled vehicle without the effective consent of Jesus
v.
Barrios-Quezada .[CR. Vol. 1, Pg. 2]. Appellant does not dispute he was is possession of
the vehicle, but denied he knowingly possessed the vehicle without consent of the actual
owner.
The State called several witness, including the alleged victim, Jesus Barrios-
Quezada, who testified he did not give appellant or anyone else permission to possess his
vehicle. [RR. Vol. 3, Pg. 18, ln. 17–19]. The remaining witnesses were victim’s sister
Guadalupe Barrios who testified she noticed the vehicle was missing. The remaining
witnesses, Austin McDonald, Frank Rudisill and Albert Patterson, all officers from
Nacogdoches law enforcement who testified that Appellant fled from law enforcement.
On February 25, 2015, Appellant was found guilty by jury and the same jury
sentenced Appellant to serve thirteen (13) years confinement in the Texas Department of
Criminal Justice– Institutional Division for evading and two (2) years confinement in the
State Jail for unauthorized use. It is from these verdicts which Appellant appeals.
SUMMARY OF THE ARGUMENT
The Trial Court erred failing to charge the jury on the defense of mistake of fact.
Further, the evidence is insufficient to justify a verdict of guilt beyond a reasonable doubt
as to unauthorized use based upon the total lack of sufficient proof of an essential
element of the offense, namely knowledge. The State failed to prove proper venue as to
either charge which harmed appellant requiring remand.
vi.
ARGUMENT
Whether the appellant was deprived of a fair trial when defense of mistake of
fact was raised by evidence but charge was submitted without objection or request?
The appellant was indicted for unauthorized use of a motor vehicle. [CR. Vol 1.,
Pg. 77]. A person commits the offense of unauthorized use of a motor vehicle if he
intentionally or knowingly drives or operates a motor vehicle without the effective
consent of the owner. Tex. Penal Code 31.07. Appellant admitted to driving another’s
vehicle. However, the defendant testified that he had received the keys and believed he
had permission to drive from an individual in possession of the vehicle and to which
appellant believed he had effective consent of the individual he [appellant] believed to be
the “owner”. [RR. Vol. 3. Pg.77]. A defendant’s knowledge of the lack of consent is one
of the elements which must be proven. Posey v. State, 966 S.W.2d 57
( Tex. Crim. App. 1998), McQueen v. State, 781 S.W.2d 600 (Tex. Cr. App. 1989);
Gardner v. State, 780 S.W.2d 259 ( Tex. Cr. App. 1989). The Court has held that such
evidence raises the defense of mistake of fact. The court’s charge should instruct the jury
on the law of mistake of fact. Lynch v. State, 643 S.W.2d 737 (Tex. Cr. App. 1983).
Appellant’s defense was obvious, he believed he had consent of the owner to possess the
vehicle.
At this point, appellant must concede that the Posey Court has also held that
omission of a defensive charge on mistake of fact does not deny appellant a fair trial.
Posey at 71. However, this ruling stands in stark contrast to a long line of case law and
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precedent. In Williams, the defendant was convicted of aggravated kidnaping. The issue
arose as to the defensive issue of “release in a safe place”. The Court concluded there was
sufficient evidence adduced at trial, without defendant’s request, to raise the issue as a
legal defense. Therefore, the issue should have been submitted to the jury and the trial
court’s failure to do so was error. Having found “error in the charge” due to the omission
of the defensive issue, the next step was to apply harm analysis under Almanza. Posey at
76 (quoting Williams v. State, 851 S.W.2d 282, 286-89 (Tex. Crim. App. 1983)).
Almanza specifically refers to omissions of defensive theories in the charge absent a
request or objection. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr. App. 1985). A
determination of egregious error analysis does not come into play unless defendant failed
to object to the charge. Posey v. State, 966 S.W.2d 57, 76 (Tex.Crim. App. 1998).
Despite such precedent, the majority in Posey ruled that defensive issues do not become
applicable to the case unless the defendant either request an instruction or objects to the
omission the instruction. Further, the Court of Criminal Appeals have never articulated
such a principle. Id at 71. In the case at issue, appellant testified uncontradicted that he
was unaware that he [appellant] did hot have the consent of the actual owner of the
vehicle. Appellant specifically testified an individual to whom he believed to be the
owner of the vehicle gave him the keys and permission to possess and operate the subject
vehicle. In Posey the appellant failed to testify and thus Posey should be considered
distinguishable and not controlling. An issue does not become ‘applicable to the case’ by
virtue of a party requesting an instruction but rather becomes applicable to the case
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through-out the course of trial, when raised by the evidence. Id at 71. The responsibility
for deciding what law is applicable to the case falls squarely on the shoulders of the trial
judge.
Further, in evaluating prosecution cases, appellate courts do not look to the actual
charge but instead make a determination based on a “hypothetically correct” charge.
Malik v. State, 953 S.W.2d 234 (Tex.Crim. App. 1997). An appellant court can
determine the theory of prosecution, and accordingly, the law applicable to the case,
based on the evidence presented [at trial], so as to fashion a ‘hypothetically correct
charge”. Yet for defensive theories, law only becomes “applicable to the case” by virtue
of defense request that it be included in the charge. See e.g., Sanders v. State, 817 S.W.2d
688 (Tex. Crim. App. 1991). Such differentiation between prosecution and defensive
issues leads to inequitable treatment and ominous results. It is ‘error’ in the jury charge
due to the omission of a defense raised by the evidence. Williams v. State, 851 S.W.2d
282 (Tex.Crim. App. 1993). It was error to omit a mistake of fact instruction to the jury
in this case. The omission of any defensive issue in the jury charge is error that is subject
to Almanza analysis.
HARM ANALYSIS
In Almanza the Court of Criminal Appeals, the Court set out the basic framework
for analysis on appeal for preserved and unpreserved “errors’ in the jury charge. This
framework is based on the Court’s interpretation of Article 36.19. The Court interpreted
that there are two standards of review. One standard for “error appearing on the record
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that was calculated to injure the defendant” applies to errors in overruling objections to
the charge which were presented to the trial court. A second, an independent basis, for
reversal exist if the error arises even though not timely objected to, which is so egregious
that it creates such harm that denies the defendant a fair and impartial trial. Posey, at 67.
(Womack, J., concurring).
In the instant case, the likelihood the jury’s decision was adversely affected by the
error is great. In an unauthorized use of a motor vehicle case, mistake of fact is raised if
the defendant received the keys from someone who was apparently authorized to give
them. In such a case, a mistake of fact instruction is required in order to prevent the
crime of unauthorized use from being a strict liability crime. See Lynch v. State, 643
S.W.2d 737, 738 (Tex. Crim. App. 1983). Here, appellant’s uncontradicted testimony
was that he [appellant] received to keys to the vehicle from an individual known as
“Rummy”. [RR. Vol. 3. Pg.77]. “Owner” means a person who has title to the property,
possession of the property, whether lawful or not,....”. Tex. Penal Code Ann. 1.07 (35).
“Rummy” met the definition of an “owner” — “Rummy had possession of the property,
whether lawful or not....” . A defendant is entitled to affirmative submission of a defense
raised by the evidence. Lynch at 738. This evidence raised the defense of mistake of fact.
The evidence reflects that the only defense that was presented was appellant believed he
had effective consent from the “owner” of the vehicle. However, the defense counsel did
not object or request a jury instruction on mistake of fact. [RR. Vol. 3. Pg. 92, ln. 5–9].
The jury was not instructed on appellant’s sole defense. Again, a mistake of fact
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instruction is required in order to prevent the crime of unauthorized use from being a
strict liability crime. The jury was not instructed it could find that “Rummy” was an
“owner” within the meaning of the statute. The State must prove, at a minium, that the
defendant knew he lacked consent of the owner or owners of the vehicle. McQueen, 781
S.W.2d at 604 n. 5. Considering the absence of a mistake of fact instruction, the jury had
to convict even if the jury believed appellant received the keys and permission to drive
the vehicle from “Rummy”. A trial in which only one possible result is possible, even if
the jury believed the appellant, cannot be fair and impartial. In the instant case, appellant
suffered egregious harm as a result the failure to properly instruct the jury.
The Appellant prays this Honorable Appeals Court sustain this point of error,
reverse and render a judgment of acquittal.
Whether the evidence of unauthorized use of a motor vehicle presented at trial
was sufficient to withstand challenge on appeal?
In reviewing sufficiency of the evidence, the evidence is analyzed in the light most
favorable to the verdict to determine if a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318–19, 99 S. Ct. 2781, 2787–88, 61 L. Ed. 2d 560 (1979).
Here, the evidence shows that the appellant was unaware that he did not have
consent of the actual owner of the vehicle and could not be guilty of unauthorized use of
a motor vehicle. Appellant testified he received the keys to the vehicle from an individual
known to appellant as “Rummy”. [RR. Vol. 3. Pg.77]. There is no evidence appellant
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knew the vehicle was stolen. No indication on or inside the vehicle that a theft had
occurred. Appellant operated the vehicle by using the ignition keys. The State’s proof
showed no evidence that appellant knew he did not have the owner’s consent. Texas law
requires such evidence. Gardner v. State, 780 S.W.2d 259 ( Tex. Crim. App. 1989).
Where an appellant puts on uncontradicted evidence establishing a defense, no rational
trier of fact could find appellant guilty beyond a reasonable doubt, appellate courts must
reverse. Van Guilder v. State, 709 S.W.2d 178, 183 (Tex. Crim. App.), cert. denied, 476
U.S. 1169, 106 S. Ct. 2891, 90 L. Ed. 2d 978 (1986); Copeland v. State, 747 S.W.2d 14,
16–17 (Tex.App.– Houston[1st Dist.] 1988, no pet.). Where the evidence is insufficient
to sustain a conviction on appeal, the court must reverse the conviction and order a
judgment of acquittal. Burkholder v. State, 660 S.W.2d 540, 542 (Tex. Crim. App. 1983).
Once Appellant has demonstrated that the verdict is found insufficient on all
issues, the verdict should not and cannot be allowed to stand. In Burks v. United States,
437 U.S. 1, 57 L.Ed.2d. 1, 98 S. Ct. 2141 (1978) and Greene v. Massey, 437 U.S. 19, 57
L. Ed. 2d 15, 98 S. Ct. 2151 (1978), the Supreme Court held that retrial is barred after an
appellate determination of insufficient evidence. Therefore, the Appellant prays this
Honorable Appeals Court sustain this point of error and reverse the trial court’s ruling
and prays the case against Appellant be dismissed or, in the alternative, that it be
remanded with instruction that Appellant’s be acquitted.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Whether the failure to request an instruction on the defense of mistake of fact
constitutes ineffective assistance of counsel?
To show, on appeal, ineffective assistance of counsel, Appellant must demonstrate
that trial counsel’s performance was deficient because it fell below an objective standard
of reasonableness, and, but for counsel’s errors, the result of the proceeding would have
been different See Strickland v. Washington, 466 U.S.668, 688, 692, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); Ryland v. State, 101 S.W.3d 107, 109–10 (Tex. Crim. App. 2003). A
reviewing court must presume that counsel’s performance was reasonably effective. Id, at
694, 104 S.Ct. At 2068.
In the present case, the only defense presented was the appellant believed he had
consent of the owner to possess the vehicle. Despite this obvious fact, trial counsel failed
to request a jury instruction as to appellant’s mistaken belief. Appellant’s sole defense
was that he was under the reasonable but mistaken belief that he [appellant] had
permission of the “owner’ of the vehicle to possession and drive the vehicle. A
reasonably effective trial counsel should have sought a mistake of fact instruction. A
mistake of fact instruction is required in order to prevent the crime of unauthorized use
from being a strict liability crime. The Court of Criminal Appeals has held that such
evidence raises the defense of mistake of fact, and the trial court’s charge should instruct
the jury on the law of that defense. See Lynch v. State, 643 S.W.2d 737, 738 (Tex. Crim.
App. 1983). In this case, a properly submitted jury instruction, the jury could, if believed,
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find appellant not guilty because a proper instruction would allow the jury to negate the
required culpable mental state for unauthorized use of a motor vehicle. Given trial
counsel’s failure, conviction became a foregone conclusion because appellant’s only
defense was, not that he had effective consent of the actual owner, but that he had
consent of “Rummy”. Since the charge as submitted, required the jury to convict, even if
they believed appellant received the vehicle keys and permission to drive from “Rummy”.
The failure by trial counsel to request a mistake of fact instruction, allowed the jury to
convict even if they [the jury] believed appellant’s uncontradicted testimony. The charge
allowed by trial counsel to be submitted to the jury did not instruct the jury that the jury
could find “Rummy” was an “owner” within the definition of an “owner” for the
unauthorized use of a motor vehicle statue.
A reasonably effective trial counsel would have sought a mistake of fact jury
instruction. The failure to seek such an instruction, particularly under these facts, so
egregiously harmed and prejudiced Appellant’s defense, rendered counsel ineffective.
The likely result would have been different “but for” trial counsel’s failure to seek a
proper mistake of fact instruction.
Therefore, the Appellant prays this Honorable Appeals Court sustain this point of
error and reverse the trial court’s ruling and prays the case against Appellant be dismissed
or, in the alternative, that it be remanded with instruction that Appellant’s be granted a
new trial.
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Whether appellant was sufficiently harmed by the failure of proof of venue to
reverse and remand for a new trial?
Venue means the place where the case may be tried. Soliz v. State, 97 S.W.3d 137,
141 (Tex.Crim.App. 2003). Venue is not constituent element of the offense charged.
Skillern v. State, 890 S.W.2d 849, 860(Tex.App.–Austin, 1994, pet. ref’d). Venue need
only be proved by preponderance of the evidence. See Tex. Code Crim Pro Ann. Art.
13.17 (West 2005); Banks v. State, 530 S.W.2d 940, 943 (Tex. Crim. App. 1975). It is
presumed that venue was proved at trial unless disputed at trial or the record affirmatively
shows the contrary. See Tex. R. App. 44.2 (c)(1). A defendant’s motion for directed
verdict which specifically challenges venue raises the issue of venue on appeal. Failure to
prove venue as charged [in the indictment] is reversible error. Black v. State, 645 S.W.2d
789, 791 (Tex. Crim. App. 1983). Failure to prove venue when the issue is raised at trial
is now subject to a harm analysis rather than automatic reversal of the conviction. State v.
Blankenship, 170 S.W.3d 676, 683 (Tex. Crim. App. 2005). A determination of the
harm is whether it affected [appellant’s] substantial rights. See Tex. R. App. P. 44.2(b). A
substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.
Crim, App. 1997); Rankin v. State, 995 S.W.2d 210, 215 (Tex.App. –Houston [14th Dist.]
1999, pet. ref’d).
Here, appellant raised the issue of venue via timely motion for directed verdict.
The State is not entitled to the presumption on appeal that venue was properly proven.
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See Tex. R. App. 44.2 (c). Appellant argues the State failed to prove venue within
Nacogdoches County, State of Texas. [RR. Vol. 3. Pg.92, ln. 12-21]. Appellant placed
venue at issue via his motion for directed verdict. Venue must be proven. The State never
requested the court take judicial notice of any venue in this cause. No proof of venue to
rises to the level of a preponderance of evidence that venue is proper in Nacogdoches
County, State of Texas. There is no evidence whatsoever connecting either offense
charged [UUMV or Evading] to Nacogdoches County, Texas. In a country as large as the
United States, it is beyond the realm of reasonability that there could only be on
“Nacogdoches County” in a country of this size.
Your appellant is further and more egregiously harmed by the State not having to
carry its burden of proof as alleged in the charging instrument. Prosecutors would no
longer be require to prove that the alleged crime was committed within the actual
confines of a particular county or even state. Allowing with approval such a “close
enough” standard as to proper venue, enables the State to forum shop within Texas.
Following this “close enough” standard, defendants could never be assured of defending
against allegation within the geographical confines of any one particular county.
Prosecutors would merely determine which counties were best suited to gain convictions
according to which counties were most likely to convict of a particular crime and
prosecute the crime in that venue. Now a defendant is subject to be tired anywhere in the
State without any recourse.
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PRAYER
WHEREFORE, PREMISE CONSIDERED, the Honorable Appeals Court reverse
the judgment of the Trial Court and remand this cause with instructions that Appellant’s
be acquitted.
Respectfully submitted,
________________________________
Winfred A. Simmons, II
Attorney for Appellant
115 West Shepherd Avenue
Lufkin, Texas 75904
(936) 632-3242 -Telephone
(936) 632-4325-Facsimile
TBN: 00794636
Email: lawyersimmons@consolidated.net
CERTIFICATE OF SERVICE
I DO HEREBY CERTIFY that on July 19, 2015, a true and correct copy of this
Appellant’s Brief was served on all attorney of record or parties.
Andrew Jones
Counsel for The State of Texas on Appeal
Assist. District Attorney for Nacogdoches
County
101 W. Main Street
Nacogdoches, Texas 75961
(936) 560–7766
_______________________________
Winfred A. Simmons, II
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
I certify that the number of words in this document is 4090.
_____________________________
Winfred A. Simmons, II
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