Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 8:07:24 PM JEFFREY D. KYLE Clerk CAUSE NO. 03-14-00483-CR THIRD COURT OF APPEALS 7/27/2015 8:07:24 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00483-CR *1 ACCEPTED [6244366] CLERK ________________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN
________________________________________________________________________
TERRY LYNN STEVENS, Appellant
V.
THE STATE OF TEXAS,
Appellee
________________________________________________________________________
ON APPEAL FROM CAUSE NO. 41839 424 th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS ________________________________________________________________________
BRIEF FOR APPELLEE ______________________________ OFFICE OF THE DISTRICT ATTORNEY 33 RD AND 424 TH JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P.O. Box 725
Llano, TX 78643 Telephone: 325-247-5755 Facsimile: 325-247-5274 By: R. Blake Ewing Assistant District Attorney State Bar No. 24076376 asstda2@burnetcountytexas.org Gary W. Bunyard Assistant District Attorney State Bar No. 03353500 g.bunyard@co.llano.tx.us ATTORNEYS FOR APPELLEE July 27, 2015
ORAL ARGUMENT REQUESTED *2 IDENTITY OF THE PARTIES AND COUNSEL Trial Court
Honorable Dan H. Mills (Retired)
424 th Judicial District
Burnet County Courthouse Annex (North)
1701 E. Polk St., Suite 74
Burnet, TX 78611
Attorney for State/Appellee
R. Blake Ewing (Trial and Appellate Counsel)
Assistant District Attorney
1701 E. Polk, Suite 24
Burnet, TX 78611
512-756-5449
State Bar No. 24076376
Gary W. Bunyard (Appellate Counsel)
Assistant District Attorney
P.O. Box 725
Llano, TX 78643
325-247-5755
State Bar No. 03353500
Richard Crowther (Trial Counsel)
Assistant District Attorney
1701 E. Polk, Suite 24
Burnet, TX 78611
512-756-5449
State Bar No. 05174200
- ii -
Attorney for Appellant
Tracy D. Cluck (Appellate Counsel)
1450 West Highway 290, #855
Dripping Springs, TX 78620
512-264-9997
State Bar No. 00787254
Michelle Moore (Trial Counsel)
1008 N. Water
Burnet, TX 78611
512-234-3074
State Bar No. 14362150
Michael Watson (Trial Counsel)
1008 N. Water
Burnet, TX 78611
512-234-3074
State Bar No. 24060804
Appellant
Terry Lynn Stevens
TDCJ# 01942880
SID# 05052947
TDCJ, Alfred Hughes Unit
Rt. 2 Box 4400
Gatesville, TX 76597
- iii - *4 TABLE OF CONTENTS IDENTITY OF THE PARTIES AND COUNSEL ..................................................................... ii
TABLE OF AUTHORITIES ........................................................................................................ v
STATEMENT OF THE CASE .................................................................................................... 2
STATEMENT ON ORAL ARGUMENT .................................................................................... 2
REPLY TO ISSUE PRESENTED ............................................................................................... 3
EXPLANATION OF CITATION OF RECORDS ..................................................................... 3
STATEMENT OF FACTS ........................................................................................................... 4
SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1 ........................................... 8
ARGUMENT ON REPLY TO ISSUE NO. 1 ............................................................................. 9
I. The trial court properly denied Appellant’s motion to suppress evidence of blood test results based on alleged deficiencies in the warrant affidavit………………. 9 II. If the trial court did err in admitting the evidence of blood results, any such error was harmless in light of the overwhelming evidence of Appellant’s intoxication…………………………………………………………………………. 17 SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2 ......................................... 27
ARGUMENT ON REPLY TO ISSUE NO. 2 ........................................................................... 28
SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3 ......................................... 34
ARGUMENT ON REPLY TO ISSUE NO. 3 ........................................................................... 35
PRAYER FOR RELIEF ............................................................................................................. 39
CERTIFICATE OF WORD COUNT ....................................................................................... 39
CERTIFICATE OF SERVICE .................................................................................................. 40
- iv - *5
TABLE OF AUTHORITIES Cases
Annis v. State , 578 S.W.2d 406 (Tex. Crim. App. 1979)....................................................18
Ashford v. State , 658 S.W.2d 216 (Tex. App. Texarkana 1983)…...………………….….22
Clayton v. State , 235 S.W.3d 772 (Tex. Crim. App. 2007)……………………...……28, 29
Cotton v. State , 686 S.W.2d 140 (Tex. Crim. App. 1985)………………………………..19
Crain v. State , 315 S.W.3d 43 (Tex. Crim. App. 2010)……....……………………..……..9
Denton v. State , 911 S.W.2d 388 (Tex. Crim. App. 1995)……...………………….…….29
Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010)……………………......…….…11
Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991)..................................................35
Harris v. State , 790 S.W.2d 568 (Tex. Crim. App. 1989)………...…………………...….18
Hernandez v. State , 60 S.W.3d 106 (Tex. Crim. App. 2001)..............................................17
Hitt v. State , 53 S.W.3d 697 (Tex.App.—Austin 2001).………………………………….36
Hooper v. State , 214 S.W.3d 9 (Tex. Crim. App. 2007)……….....................................…29
Hyde v. State , 846 S.W.2d 503 (Tex. App.—Corpus Christi 1993, pet. ref’d)…………...20
Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)……..….9, 10, 11
Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)……..…28
Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990)…………………………....…11
Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1991)...………..………………35
Mosley v. State , 983 S.W.2d 249 (Tex. Crim. App. 1998)…………………….…….....…17
Mozon v. State , 991 S.W.2d 841 (Tex. Crim. App. 1999)………………………………..35
Poole v. State , 974 S.W.2d 892 (Tex.App.—Austin 1992)……………………………....36
- v -
Rabbani v. State , 847 S.W.2d 555 (Tex. Crim. App. 1992),
cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)…….………26 Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007)……………………………...10
State v. Jordan , 342 S.W.3d 565 (Tex. Crim. App. 2011)…………………….....……….11
State v. McLain , 337 S.W.3d 268 (Tex. Crim. App. 2011)…………………………….9, 10
State v. Webre , 347 S.W.3d 381 (Tex. App.—Austin 2011, no pet.)………………..…9, 10
Stovall v. State , 440 S.W.3d 661 (Tex. App.—Austin 2011, no pet.)…………..….9, 15, 16
Swearingen v. State , 143 S.W.3d 808 (Tex. Crim. App. 2004)…………….….9, 10, 13, 26
United States v. Ventresca , 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)……...…10
Villareal v. State , 286 S.W.3d 321 (Tex. Crim. App. 2009)……………………………...28
Wesbrook v. State , 29 S.W.3d 103 (Tex. Crim. App. 2000)…………………………...…18
Yates v. State , 941 S.W.2d 357 (Tex.App.—Waco 1997, pet. ref’d)………………....36, 38
Zill v. State , 355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.………....…21
Statutes and Constitutions
Tex. Evid. R. 403…………………………………………………………………...……..35
Tex. Penal Code Sec. 1.07(a)(40)…………………………………………………………33
Tex. Penal Code Sec. 12.42………………………………………………………………...2
Tex. Penal Code Sec. 49.04…………………………………………………………...…..29
Tex. Penal Code Sec. 49.09………………………………………………………………...2
Tex. R. App. P. 44.2(a)………………………………………………………………..…..17
Tex. Transp. Code Ann. § 724.061……………………………………………..…….15, 22
U.S. Const. amend IV…………………………………………………………..…………10
- vi -
Treatises
W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 11.7(c) at 452 (4 th ed. 2004 & Supp. 2009-2010))……………………….……………..11
- vii - *8 CAUSE NO. 03-14-00483-CR ________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN
________________________ TERRY LYNN STEVENS, Appellant
V.
THE STATE OF TEXAS,
Appellee ________________________ ON APPEAL FROM CAUSE NO. 41839 424 th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS ________________________ BRIEF FOR APPELLEE
________________________ TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW the Appellee, the State of Texas, and files this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in reply
to the brief by the Appellant, and in support thereof would show the Court as
follows:
STATEMENT OF THE CASE The Appellant’s statement of the case is largely accurate, but incorrectly describes the contents of the indictment. The indictment contains
allegations of four prior convictions against the Appellant: two convictions
for offenses relating to the operation of a motor vehicle while intoxicated,
making the indicted offense a third degree felony under Sec. 49.09(b)(2) of
the Texas Penal Code, and two other sequential felony convictions for
driving while intoxicated, enhancing the charged offense to a habitual range
of punishment under Sec. 12.42(d) of the Penal Code. Tex. Pen. Code
§§12.42, 49.09.
STATEMENT ON ORAL ARGUMENT The undersigned requests oral argument. While the undersigned believes that the issues raised by Appellant and addressed herein are
straightforward and do not present any novel or complex questions on which
oral argument would be beneficial to the Court, Appellant has requested oral
argument and the undersigned is willing to participate if the Court believes
that oral argument will assist the Court in any way.
REPLY TO ISSUES PRESENTED Reply to Issue One:
The trial court properly denied Appellant’s motion to suppress evidence of
blood test results based on alleged deficiencies in the supporting affidavit.
Even if the trial court did err in allowing the blood evidence to be admitted,
any such error was harmless in light of the overwhelming evidence of the
Appellant’s guilt.
Reply to Issue Two:
The evidence that Appellant operated a motor vehicle was legally sufficient
to support a finding of guilt by the jury.
Reply to Issue Three:
The trial court applied the necessary balancing test under Rule 403 and
properly admitted recordings of Appellant’s jail phone calls.
EXPLANATION OF CITATION OF RECORDS The Clerk’s Record will be cited by page number as “C.R. _____ [page number].” The Court Reporter’s Record will be cited by volume and
page number as “R.R. Vol. _____ [volume number], p. ______ [page
number]” and, where necessary, “l. _____ [line number].”
STATEMENT OF FACTS Appellant’s statement of the facts is inaccurate or incomplete with respect to certain details relevant to the issues presented.
The charge at issue arose from events occurring at the gated entrance to the Ridgemont Village apartment complex in Burnet County, Texas on the
evening of May 9, 2013. R.R. Vol. 3, pp. 29-47. Socorro McCrum, a
resident of the complex, was standing outside her apartment and saw a white
pickup truck drive in from a public street and pull up to the “code box”
controlling the gate at the entrance of the complex. Id. at 38-39, 44. A short
time later, another car pulled in behind the white pickup truck. Id. at 38.
Once the gate opened, the second vehicle to arrive drove around the white
pickup truck and entered the complex. Id. at 40. The white pickup truck
then rolled backward into a fence. Id. McCrum called the police and stayed
in her apartment until Officer Justin Boucher of the Marble Falls Police
Department arrived. Id. McCrum was not able to see or describe the person
driving the white pickup truck. Id. at 41. She did not see anyone enter or
exit the vehicle until police arrived, and did not see any other persons in the
area. Id .
Officer Boucher was dispatched to the Ridgemont Village complex at 9:34 p.m. in response to a report that a white pickup truck had backed into a
fence. Id. at 49. Boucher arrived at the apartment complex at 9:39 p.m. Id.
at 50. Boucher saw a white pickup truck backed up against a fence column
outside the complex’s gate. Id. at 52. The truck’s brake lights were
illuminated when Boucher first observed it. Id. at 51, 80. As Boucher
approached the truck, Appellant opened the driver’s side door and stepped
out. Id. at 54. Boucher noticed immediately that Appellant was “unstable on
his feet” and was “staggering.” Id. at 54-55. When asked to step away from
the vehicle, Appellant “ran into the side mirror” of the truck. Id. at 55.
Boucher detected the strong odor of an alcoholic beverage and asked
Appellant how much he had had to drink that evening, to which Appellant
replied “a couple beers.” Id. at 56; R.R. Vol. 6, State’s Exhibit 7. When
asked the same question again a short time later, Appellant said “about three
beers.” Id. Boucher asked Appellant whether he had ever been this
intoxicated before, to which Appellant replied “No I haven’t.” Id.
Boucher conducted field sobriety tests on Appellant and observed numerous signs of intoxication. R.R. Vol. 3, p. 57-64, 81-90; R.R. Vol. 6, p.
104-105. After attempting unsuccessfully to complete one of the tests,
Appellant said to Boucher “Hell, why don’t you just arrest me?” R.R. Vol.
3, p. 64; R.R. Vol. 6, State’s Exhibit 7. After Appellant was taken into
custody, an opened alcoholic beverage was found in the white truck. R.R.
Vol. 3, p. 65.
Boucher transported Appellant to the Marble Falls Police Department, where he read to Appellant the DIC-24 statutory warning and requested a
specimen of Appellant’s blood. Id. at 71. Appellant refused. Id. Boucher
submitted an affidavit for a search warrant to Judge Don Adams and
obtained a warrant for Appellant’s blood. Id. at 73. A specimen was taken
and submitted to the Texas Department of Public Safety crime lab for
analysis. Id. at 73-80, 117-118. The blood contained an alcohol
concentration of 0.25 grams per 100 milliliters. Id. at 118.
At trial, Appellant objected to the admission of the blood test results and moved for the court to suppress them, alleging deficiencies in the
affidavit. Id. at 78-79, 106-107. The trial court found “under the totality of
the circumstances that the search warrant affidavit is sufficient” and
overruled Appellant’s objection that the affidavit was conclusory. Id. at 107.
Appellant also objected under Rule 403 to the admission of recorded jail phone calls containing statements by Appellant that he had been “out
pulling [his] truck in” and “couldn’t get the gate open.” R.R. Vol. 4, p. 5-7,
12-21; R.R. Vol. 6, State’s Exhibits 13, 14 . Appellant argued that the
evidence contained on the recordings was cumulative. R.R. Vol. 4, p. 5-6.
The trial court overruled Appellant’s objection, finding that the recordings
were not cumulative and were relevant to the question of whether the
Appellant was driving the vehicle. Id. at 6-7.
At the conclusion of evidence the trial court instructed the jury on both meanings of intoxication, i.e., not having the normal use of mental or
physical faculties by reason of the introduction of a substance into the body,
or having an alcohol concentration of 0.08 or more. Id . at 26. The jury
found Appellant guilty of felony Driving While Intoxicated as alleged in the
indictment. Id. at 49. Appellant testified at the punishment phase of trial
and admitted to each element of the indicted offense. R.R. Vol. 5, p. 57-58.
The State presented evidence that Appellant had been convicted of driving
while intoxicated on six prior occasions, four of which were felony offenses.
Id . at 9-23. The jury assessed a sentence of life. Id. at 85.
SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1 The trial court properly denied Appellant’s motion to suppress evidence of blood test results. The affidavit supporting the warrant to obtain
Appellant’s blood contained sufficient facts and circumstances from which
the magistrate could have found a substantial basis for concluding that a
search would uncover evidence of wrongdoing. Even if the trial court did err
in allowing the blood evidence to be admitted, any such error was harmless
in light of the other overwhelming evidence of the Appellant’s guilt.
ARGUMENT ON REPLY TO ISSUE NO. 1 I. The trial court properly denied Appellant’s motion to
suppress evidence of blood test results based on alleged deficiencies in the warrant affidavit.
A. Standard of Review
A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of discretion. Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App.
2010). Normally, appellate courts apply this standard in a bifurcated
fashion, giving almost total deference to the trial court’s determinations of
fact, including witness credibility and demeanor, while reviewing de novo its
applications of law. State v. McLain , 337 S.W.3d 268, 271 (Tex. Crim. App.
2011); Crain , 315 S.W.3d at 48.
However, a court’s after-the-fact scrutiny of the sufficiency of an affidavit should not take the form of de novo review. Swearingen v. State ,
143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (quoting Illinois v. Gates, 462
U.S. 213, 234-237, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)). Rather, in the
case of a motion to suppress based on a magistrate’s decision to issue a
search warrant, both trial and appellate courts apply a unique and highly
deferential standard of review. Stovall v. State , 440 S.W.3d 661, 666 (Tex.
App.—Austin 2011, no pet.) (citing McLain , 337 S.W.3d at 271); State v.
Webre , 347 S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). So long as
the magistrate had a substantial basis for concluding that a search would
uncover evidence of wrongdoing, the Fourth Amendment requires no more.
U.S. Const. amend. IV; Swearingen v. State , 143 S.W.3d 808, 810 (quoting
Gates, 462 U.S. at 234-237) .
The deference paid to the magistrate’s determination of probable cause is based on the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant. Id .; see also United States v. Ventresca ,
380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“[Affidavits for
search warrants] are normally drafted by nonlawyers in the midst and haste
of a criminal investigation. Technical requirements of elaborate specificity
once exacted under common law pleadings have no proper place in this area.
A grudging or negative attitude by reviewing courts toward warrants will
tend to discourage police officers from submitting their evidence to a judicial
officer before acting.”)
When an appellate court reviews an issuing magistrate’s determination, that court should not analyze the affidavit in a hyper-technical
manner but in a commonsensical and realistic manner, recognizing that the
magistrate may draw reasonable inferences. McLain , 337 S.W.3d at 271;
Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). The
magistrate should not be bound by standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence; the magistrate’s
sole concern should be probability. Johnson v. State, 803 S.W.2d 272, 288
(Tex. Crim. App. 1990) (citing Gates, 462 U.S. at 238-39). While that
probability cannot be based on mere conclusory statements of an affiant’s
belief, reviewing courts, when in doubt, should defer to all reasonable
inferences that the magistrate could have made from the facts and
circumstances contained within the four corners of the affidavit. Rodriguez,
232 S.W.3d at 61; State v. Jordan , 342 S.W.3d 565, 569 (Tex. Crim. App.
2011). The magistrate’s decision should carry the day in doubtful or
marginal cases, even if the reviewing court might reach a different result
upon de novo review. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim.
App. 2010) (citing W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.7(c) at 452 (4 th ed. 2004 & Supp. 2009-2010)).
B. Argument
In his first point of error Appellant argues that the trial court erred by admitting evidence of blood test results over his objection. At trial,
Appellant objected to the admission of blood evidence and blood test results,
alleging that the affidavit supporting the warrant to obtain his blood was
deficient. R.R. Vol. 3, p. 78, 107. The trial court heard Appellant’s
argument outside the presence of the jury, treating Appellant’s objection as a
motion to suppress. Id . at 107. Appellant’s counsel argued, in reference to
the affidavit, as follows:
Paragraph Four is conclusory, no facts given to support that conclusion. Paragraph Five, there’s [sic] no facts that Terry Lynn Stevens was, in fact, the driver or even operated the motor vehicle in accordance with the law. So based on that, there is no evidence that Terry Lynn Stevens was driving or operating that vehicle inside the four corners of that affidavit and, therefore, the blood should be suppressed.
Id . The trial court overruled Appellant’s objection, finding “under the
totality of the circumstances that the search warrant affidavit is sufficient….”
Id .
Appellant now argues that “there are no facts to support whether the vehicle in question was in a public rather than private drive, no facts to
support whether Appellant was ‘operating’ the vehicle in question (or in any
manner connected to this or any other motor vehicle), and no facts to
establish when exactly the incident in question happened.” Appellant’s
Brief, p. 18 (emphasis and parenthetical in original).
Assuming, without conceding, that Appellant’s trial objection preserved error as to each of the arguments he now advances on appeal, the
trial court correctly overruled Appellant’s objection. The affidavit, when
analyzed in a non-technical, common-sense manner, does contain sufficient
facts and circumstances from which the magistrate could have found a
substantial basis for concluding that a search would uncover evidence of
wrongdoing. See Swearingen , 143 S.W.3d at 810.
The affidavit states that Officer Boucher made contact with Appellant at approximately 9:39 p.m. on May 9, 2013. R.R. Vol. 6, p.104. It further
states that “the reason for the contact” with Appellant was that Boucher
“responded to 92 Gateway North in reference to a vehicle that was stopped at
a gate code entry point trying to enter a gate code to enter the property. The
complainant advised that the vehicle then slowly rolled backwards and
struck a fence.” Id. The statement that the suspect vehicle was attempting
to gain entry to property by entering a “gate code” supports the reasonable
inference that the suspect vehicle was being operated in a public place.
It is common knowledge that the purpose of encoded gates is to restrict access to private property, and so the magistrate could have
reasonably inferred that the vehicle attempting to gain entry to the gated
property was in a public place while stopped at the gate code entry point.
The fact that the vehicle was “trying to enter the property” and “rolled
backwards and struck a fence” also supports the inference that the vehicle in
question was being operated by some person. Thus a commonsensical,
realistic reading of the affidavit supports the conclusion that the suspect
vehicle was being operated in a public place.
While it is true that the affiant made no direct statements identifying Appellant as the person operating the vehicle, the reviewing magistrate could
have inferred from the facts and circumstances set forth in the affidavit that
the Appellant was reasonably likely to have been operating the vehicle. The
affidavit’s description of the vehicle’s movements (i.e., slowly rolling
backward and striking a fence after being stopped at a gate code entry point
trying to enter the property) indicate that the person operating the vehicle –
whoever that may have been – was intoxicated or otherwise impaired. The
magistrate could then have inferred that there was a reasonable probability
that Appellant was the person who had been operating the vehicle, based on
the fact that Boucher made contact with Appellant as a result of the reported
accident and observed numerous signs of intoxication in Appellant while
responding to the complaint. Id .
The affidavit stated that Appellant staggered and was unsteady when walking; he swayed and used support when balancing; his speech was
slurred and incoherent; his eyes were bloodshot; Boucher detected the strong
odor of an alcoholic beverage while talking with him; he performed poorly
on field sobriety tests. Id . Finally, Appellant refused to voluntarily provide
a blood sample. Id. See Stovall , 440 S.W.3d at 668, n.7 (citing Tex. Transp.
Code Ann. § 724.061) (“The magistrate could also have inferred that Stovall
had driven while intoxicated from his refusal to submit to a breath test.”)
In other words, that facts in the affidavit describing Appellant’s intoxication are circumstantial evidence that Appellant was the person who
had been operating the erratically driven vehicle also described in the
affidavit, and the magistrate could have concluded that the nexus between
those facts provided a substantial basis to support a finding of probable
cause.
Appellant also argues that the affidavit contains no facts to establish when exactly the incident in question happened, and that Officer Boucher
could have been dispatched to take a report about an incident that happened
at some point much earlier in time. A common-sense analysis of the
affidavit makes this scenario implausible and supports the conclusion that
the reported auto accident had occurred shortly before Boucher’s response.
It is common knowledge that complainants who have witnessed auto accidents generally call authorities immediately to report the incident. It is
also common knowledge that authorities generally respond promptly to
complaints relating to auto accidents. See Stovall , 440 S.W.3d at 667-68
(discussing common knowledge relating to the promptness of police dispatch
for auto accidents). Furthermore, Boucher responded to the witnessed
accident at 9:39 p.m. R.R. Vol. 6, p. 104. It is particularly unlikely that a
person witnessing an auto accident would wait until such a late hour of the
night to call authorities, or that a law enforcement agency would delay
response until such an hour.
Thus the affidavit, analyzed in a realistic manner and in light of common knowledge and experience, sets out sufficient facts and
circumstances on its face from which the magistrate could have reasonably
inferred that Appellant was operating the vehicle just prior to the
complainant’s report and Boucher’s response to the scene of the incident.
Furthermore, since Boucher responded to the report at 9:39 p.m., observed
signs of intoxication in Appellant, and submitted the affidavit to the
magistrate at 10:30 p.m. on the same date, the magistrate had a substantial
basis to determine that evidence of intoxication would still be present in
Appellant’s blood when the warrant was issued. Id.
For the foregoing reasons, deferring to all reasonable inferences that the magistrate could have made in finding probable cause to issue the
warrant, the trial court did not abuse its discretion by overruling Appellant’s
objection and admitting evidence of blood test results.
II. If the trial court did err in admitting the evidence of blood
results, any such error was harmless in light of the overwhelming evidence of Appellant’s intoxication.
A. Standard of Review
The harm analysis for the erroneous admission of evidence obtained in violation of the Fourth Amendment is Texas Rule of Appellate Procedure
44.2(a)’s constitutional standard. Hernandez v. State , 60 S.W.3d 106, 108
(Tex. Crim. App. 2001); Tex. R. App. P. 44.2(a). Rule 44.2(a) requires the
reversal of a judgment of conviction unless it can be determined beyond a
reasonable doubt that the error did not contribute to the conviction. Tex. R.
App. P. 44.2(a). In applying the harmless error test, a reviewing court’s
primary question is whether there is a reasonable possibility that the error
might have contributed to the conviction. Mosley v. State , 983 S.W.2d 249,
259 (Tex. Crim. App. 1998). In answering that question, the reviewing court
should evaluate the entire record in a neutral, impartial, and even-handed
manner and calculate as much as possible the probable impact of the
erroneously admitted evidence on the jury in light of the existence of other
evidence. Harris v. State , 790 S.W.2d 568, 586 (Tex. Crim. App. 1989);
Wesbrook v. State , 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
B. Argument
If this Court were to find that Appellant’s objection should have been sustained and the evidence of Appellant’s blood test results should have been
suppressed, any error resulting from the admission of the evidence was
harmless. Even disregarding the blood test results, the evidence of
Appellant’s intoxication was overwhelming. Officer Boucher testified that
he had special training relating to detecting signs of intoxication and that,
based on his training and experience, he was “100 percent sure that
[Appellant] was intoxicated” due to having lost the use of his mental or
physical faculties. R.R. Vol. 3, p. 48, 64, 99. See Annis v. State , 578 S.W.2d
406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a
person was intoxicated provided sufficient evidence to establish the element
of intoxication).
In addition to Boucher’s testimony establishing Appellant’s intoxication, the jury also viewed a video recording of Boucher’s interaction
with Appellant. R.R. Vol. 3, p. 66-68. The video clearly shows all the
visible signs of intoxication described by Boucher. See R.R. Vol. 6, State’s
Exhibit 7.
Upon making contact with appellant, Boucher “noticed immediately that [Appellant] was unstable on his feet. He was staggering.” R.R. Vol. 3,
p. 54-55. Boucher detected the odor of an alcoholic beverage, saying “the
alcohol odor was so strong that I was able to detect it from a pretty good
distance away.” Id. at 55. When Boucher asked Appellant to step away
from the vehicle, Appellant “ran into the side mirror of his vehicle” and
appeared not to realize that he had done so. Id. at 55-56. Appellant had
“slurred, lethargic speech.” Id. at 99. Boucher further testified that
Appellant was “unable to maintain his balance. He was falling over.” Id.
See Cotton v. State , 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985)
(providing a nonexclusive list of signs recognized as evidence of
intoxication, including slurred speech, odor of alcohol on the person,
unsteady balance, and a staggering gait). Appellant also admitted to Boucher
that he had “a couple” beers, and later admitted to having “three” beers.
R.R. Vol. 3, p. 56; See R.R. Vol. 6, State’s Exhibit 7. After placing
Appellant under arrest, Boucher found an 18-ounce can of Bud Ice beer in
the white truck Appellant had been operating. R.R. Vol. 3, p. 65.
Approximately a third of the beer was left in the container. Id. When asked
where he lived, Appellant transposed two of the numbers in his street
address. Id .
Appellant’s actions and demeanor also demonstrated a consciousness of guilt. During his contact with Boucher, Appellant persistently apologized
to Boucher and begged to be permitted to go home. R.R. Vol. 6, State’s
Exhibit 7; R.R. Vol. 3, p. 100. See Hyde v. State , 846 S.W.2d 503, 505 (Tex.
App.—Corpus Christi 1993, pet. ref’d) (holding that “any conduct on the
part of a person accused of a crime subsequent to its commission, which
indicates a ‘consciousness of guilt,’ may be received as a circumstance
tending to prove that he committed the act with which he is charged.”).
Boucher also gave extensive testimony about Appellant’s poor performance on several field sobriety tests. R.R. Vol. 3, p.56-64, 81-90.
While attempting to perform the horizontal gaze nystagmus (HGN) test,
Appellant was unable to maintain his balance and had to be asked to get back
into position numerous times. Id. at 59. Appellant was also unable to follow
the stimulus with his eyes numerous times. Id. at 81. Boucher testified that
he looks for six clues with the HGN test to determine whether a person is
intoxicated, and that he observed all six clues in Appellant. Id. at 59-60.
Boucher next attempted to perform the walk and turn test. Id. at 60-63. He
testified that while he was explaining the instructions Appellant was “unable
to maintain his balance again, falling over, unable to keep his right foot in
front of his left foot with his hands down to his side.” Id. at 61. Boucher
testified that out of a possible eight clues he looks for a minimum of four
clues to determine whether a person is intoxicated. Id. at 62. In Appellant
he observed “six or seven” clues. Id. See Zill v. State , 355 S.W.3d 778, 786
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (“A defendant’s poor
performance on the standardized field sobriety tests is further evidence of
intoxication”).
After several failed attempts to perform the walk and turn test, Appellant turned to Boucher and said, “Hell, why don’t you just arrest me?”
R.R. Vol. 3, p. 56; R.R. Vol. 6, State’s Exhibit 7. Boucher then testified that
he did not attempt to perform the “one leg stand” test, saying that “[d]ue to
[Appellant’s] high level of intoxication I felt for his safety that he did not
need to proceed with that due to him not being able to maintain his balance
and continuing to fall over.” R.R. Vol. 3, p. 63. Boucher also testified that it
is very difficult to perform field sobriety tests on a person who is extremely
intoxicated because they are “not able to follow your instructions. They’re
not able to maintain their balance or stand up on their own without falling
over, so you have to continuously repeat things one after another.” Id . at
100. This is precisely what the jury saw on the video of Boucher’s
interaction with Appellant. See R.R. Vol. 6, State’s Exhibit 7.
The jury also heard evidence that Appellant refused to voluntarily provide Boucher with a sample of his blood, choosing instead to accept the
legal consequences that accompany a refusal. R.R. Vol. 3, p. 71; R.R. Vol.
6, State’s Exhibit 8. A person’s refusal to submit a blood sample to a
requesting officer can be used as evidence against him at trial. See Tex.
Transp. Code Ann. § 724.061; Ashford v. State , 658 S.W.2d 216 (Tex. App.
Texarkana 1983). Appellant even admitted to being intoxicated. When
Boucher asked Appellant “Have you ever been this intoxicated before?”
Appellant answered, “No I haven’t.” R.R. Vol. 6, State’s Exhibit 7.
Finally, the State admitted evidence at trial that Appellant had made several phone calls from jail prior to trial, and played recorded audio of two
of those calls for the jury. R.R. Vol 4, p. 12-21. See R.R. Vol. 6, State’s
Exhibits 13 & 14. Both calls feature the Appellant having a conversation
with a woman named Shirley Brown. R.R. Vol. 4, p. 15-16. On one of the
calls, the following exchange takes place:
Appellant: And, uh, you know, he pulled in, I had the door open, was getting out of the pickup when he pulled in. I had my legs out, because I couldn’t get the gate open, and I said the hell with it I’ll just park it here and leave it here and get you to come get it, or you know…
Brown: Yeah.
Appellant: I was just going to walk down and grab the remote and bring the truck and park it behind the garage, or in front of the garage, but…
Brown: Why did you get started on the liquor?
Appellant: It was cheap. It was cheap.
Brown: Yeah, but you know it makes you crazy.
Appellant: I wasn’t crazy that night. I wasn’t even arguing with you that night.
Brown: You were crazy.
R.R. Vol. 6, State’s Exhibit 13. This conversation clearly references the
events on the night of Appellant’s arrest for this charge. Brown’s question
about Appellant’s drinking and her statements that liquor makes him “crazy”
and that he was “crazy” on the night in question are significant additional
evidence of Appellant’s intoxication.
In light of the overwhelming evidence detailed above, even disregarding the blood test results the jury would have found that appellant
was intoxicated beyond a reasonable doubt by not having the normal use of
his mental or physical faculties by reason of the introduction of alcohol into
his body.
Furthermore, the blood draw evidence was not unduly emphasized by the State at trial. On the contrary, the State stressed in closing argument that
it was not necessary for the jury to consider the blood evidence to find
Appellant guilty, saying:
Some of you may be thinking, man, this seems like a pretty easy case, right? [ . . . ] Why are we doing all this stuff with scientist [sic] and blood? I mean, we could have really just played that video, let you see with your own eyes the defendant clearly intoxicated . . . and sat down and let you have the case.
R.R. Vol. 4, p. 33. The State then emphasized the evidence showing that
Appellant was intoxicated by having lost the normal use of his mental or
physical faculties, saying:
Y’all saw that with your own eyes. You saw him get out of that truck. You saw him staggering around. You saw him bumping into the mirror. You saw him unable to even stand in one place when the officer was giving him the instructions on how to perform the test. You heard that he had failed those field sobriety test [sic]. So we can check off the box that he was intoxicated.
Id . at 36.
Additionally, in his closing argument, Appellant’s trial counsel seemed to acknowledge the overwhelming evidence of Appellant’s
intoxication, even in the absence of the blood evidence. He urged the jurors
to discount the blood evidence and then said,
Now, the State is going to say, well, if you don’t believe that, you’ve got the video. All right. Well, we can see intoxication. He was intoxicated , but the point I’m getting at with all this is the State has to prove and make sure all protocols are followed. [ . . . ] What if the issue is about blood? You don’t have the video [ . . . ] [a]nd then you get a not guilty on an intoxication assault because they didn’t follow the protocols.” Id . at 42 (emphasis added). In response to defense counsel’s argument, the
State again argued that the critical evidence was on the video, saying, “We
all saw it. We all know it. The defense just said it, that man was intoxicated.
Clearly.” Id . at 47.
The jury was properly instructed that the State could prove Appellant was intoxicated by not having the normal use of his mental or physical
faculties by reason of the introduction of alcohol, or by having an alcohol
concentration of 0.08 or more. Id . at 26; C.R. 28. When the jury is
authorized to convict on any one of several theories or methods of
commission of the same offense and returns a general verdict of guilt, it does
not matter that the evidence is insufficient to sustain one or more of the
theories, so long as the evidence is sufficient to sustain conviction under at
least one theory. Swearingen v. State , 101 S.W.3d 89, 95 (Tex. Crim. App.
2003) (citing Rabbani v. State , 847 S.W.2d 555, 558-59 (Tex. Crim. App.
1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)).
Reviewing the entire record in a neutral manner, the other evidence of Appellant’s intoxication was so overwhelming that there is no reasonable
possibility that any error by the trial court in admitting the blood test results
might have contributed to Appellant’s conviction. The trial court’s denial of
Appellant’s motion to suppress was harmless in light of the overwhelming
evidence of Appellant’s intoxication. Appellant’s first point of error should
be overruled.
SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2 The evidence that Appellant operated a vehicle in a public place was legally sufficient to support his conviction for driving while intoxicated.
The jury heard testimony from two eyewitnesses that, taken together,
supports the rational inference that Appellant had been operating the vehicle
in question. The State also admitted evidence of jail phone calls containing
admissions from Appellant that he had been operating a vehicle at the time
of his arrest. From this evidence, a rational trier of fact could have
concluded beyond a reasonable doubt that the State proved that Appellant
had operated a vehicle.
ARGUMENT ON REPLY TO ISSUE NO. 2 I. The evidence of the driving while intoxicated element of
“operation” was sufficient to support a finding of guilt by the jury.
A. Standard of Review
In determining the legal sufficiency of the evidence to support a conviction, an appellate court must consider all of the record evidence in the
light most favorable to the verdict and must determine whether, based on that
evidence and reasonable inferences therefrom, any rational trier of fact could
have found the defendant guilty of all the elements of the offense beyond a
reasonable doubt. Villareal v. State , 286 S.W.3d 321, 327 (Tex. Crim. App.
2009) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979)). This standard accounts for the factfinder's duty "to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Clayton v. State ,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at
319). When the record supports conflicting inferences, the appellate court
should presume that the factfinder resolved the conflicts in favor of the
prosecution and defer to that determination. Clayton , 235 S.W.3d at 778
(citing Jackson , 443 U.S. at 326). Direct and circumstantial evidence are
treated equally: "Circumstantial evidence is as probative as direct evidence
in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt." Clayton , 235 S.W.3d at 778 (quoting Hooper v.
State , 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).
B. Argument
A person commits driving while intoxicated if the person is intoxicated while operating motor vehicle in a public place. Tex. Penal Code
Ann. § 49.04(a). The Penal Code does not define the term “operate.”
Denton v. State , 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). The Court of
Criminal Appeals has held that a person operates a vehicle when the totality
of the circumstances demonstrates “that the defendant took action to affect
the functioning of his vehicle in a manner that would enable the vehicle’s
use.” Id . at 390.
In the case at bar, the State presented ample evidence to show that Appellant operated a vehicle. Socorro McCrum testified that on the evening
of May 9, 2013 she saw a white pickup truck drive in from a public street
and pull up to the “code box” controlling the gate at the entrance to the
Ridgemont Village community, where she was a resident. R.R. Vol. 3, p. 31-
39, 44. The truck’s headlights were on. Id . at 38. The truck stayed next to
the code box for “a minute or so” until another vehicle pulled in behind the
truck and waited for the gate to open. Id . McCrum heard a female voice
from the second car yell out the gate code, and then heard the gate open. Id .
at 40. The second vehicle then “went in reverse a little bit so that she could
go around the truck” and entered the property through the gate. Id . The
white truck’s lights went off and the truck started moving in reverse. Id .
McCrum then testified that she saw the truck’s red brake lights illuminate
and “it kind of went back with an impact and hit the fence.” Id . McCrum
went into her apartment to call the police. Id . Officer Boucher arrived four
or five minutes later. Id . at 49-50. McCrum went back outside when the
police arrived and saw them take a man out of the same truck she had earlier
seen pulling in and attempting to open the gate. Id . at 41-42. McCrum also
testified that from the moment she first saw the white truck until the police
arrived she never saw anyone else walking around the area, and never saw
anyone get into or out of the truck. Id . at 41.
Officer Boucher was dispatched to the Ridgemont Village community after receiving a report from dispatch that a white pickup truck had been
parked at the gate code box and then moved backward into a fence. Id . at 49.
When he arrived he saw a white pickup truck backed into a parking space, up
against a white stone fence column. Id . at 49-50, 52. It was the only vehicle
in sight matching the description given to Boucher. Id . at 51. The truck’s
doors were closed and its brake lights were illuminated. Id . Boucher parked
his patrol unit and saw Appellant open the door and exit the driver’s side of
the truck. Id . at 54-55.
During Boucher’s interaction with him, Appellant claimed ownership of the white truck and was found to be in possession of the keys to the truck.
Id . at 69; R.R. Vol. 6, State’s Exhibit 7. Appellant asserted that he had not
been in his truck, that Boucher had never seen him in his truck and had never
seen him driving, but never claimed that anyone else had been driving his
truck. R.R. Vol. 3, p. 68-69. Appellant’s claim that he had not been in the
truck were inconsistent with Boucher’s own observation. Id .
Officer Boucher directly observed the operation of the white truck’s brake lights immediately before Appellant emerged from the driver’s seat
and was found to be intoxicated. Even if the operation of the truck’s brakes
did not itself constitute operation of the vehicle, the combined testimony of
McCrum and Boucher and the reasonable inferences therefrom could have
led a rational trier of fact to conclude that Appellant had been operating the
vehicle when it entered from the street, pulled up to the gate code box,
turned off its headlights, and moved backward into the fence. Appellant
emerged from the driver’s side of the same truck McCrum had seen pulling
up to the gate code box and rolling backward into the fence. No one else
was seen entering or exiting the truck and Appellant did not claim that
anyone else had been operating the vehicle prior to Boucher’s arrival. Also,
it is particularly reasonable to infer Appellant’s operation of the white truck
during this time since he was found to be highly intoxicated and McCrum’s
observation of the truck’s movement is entirely consistent with its operation
by a highly intoxicated person.
Additionally, the jury heard evidence of Appellant’s operation of the vehicle from Appellant himself in the form of recorded jail phone calls. The
state admitted recordings of two of Appellant’s jail phone calls into evidence
and played both for the jury. R.R. Vol. 4, p. 12-21. On the first, Appellant
can be heard telling Shirley Brown that “I couldn’t get the gate open, and I
said the hell with it, I’ll just park it here and leave it here and get you to
come get it.” R.R. Vol. 6, State’s Exhibit 13. On the second phone call,
Appellant can be heard saying “I went out to get the truck to bring it in and I
couldn’t get the gate open…I got pissed off, I backed it up, parked it.” R.R.
Vol. 6, State’s Exhibit 14.
The context of these statements makes it evident that Appellant is describing his operation of the white truck on the evening of May 9, 2013,
when he was arrested for driving while intoxicated. Having heard these
Statements from Appellant, a rational trier of fact could certainly have
concluded beyond a reasonable doubt that Appellant had been operating the
white truck on the night in question. And since McCrum and Boucher both
testified that the area where they saw the white truck was a place where the
public or a substantial group of the public has access, the evidence at trial
was legally sufficient to show that Appellant operated the vehicle in a public
place. R.R. Vol. 3, p. 36, 52-53. See Tex. Penal Code Sec. 1.07(a)(40) . As
such, the evidence was sufficient to sustain a conviction in this case and
Appellant’s second point of error should be overruled.
SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3 The trial court properly admitted recordings of jail phone calls over Appellant’s Rule 403 objection, since the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice. In
making its ruling, the trial court applied the appropriate balancing test under
Rule 403.
ARGUMENT ON REPLY TO ISSUE NO. 3 I. The trial court properly overruled Appellant’s objection
under Rule 403, since the probative value of the evidence was not substantially outweighed by its prejudicial effect. A trial court is assumed to have applied the necessary balancing test in overruling a Rule 403 objection, and the balancing test need not be performed on the record.
A. Standard of Review
A trial judge has broad discretion in admitting or excluding evidence.
Mozon v. State , 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). A trial judge,
however, may exercise her discretion in excluding evidence only when its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, by considerations of
undue delay, or needless presentation of cumulative evidence. Tex. Evid. R.
403; see also Gilbert v. State, 808 S.W.2d 467, 471-72 (Tex. Crim. App.
1991). In reviewing the trial court's balancing test determination, a
reviewing court is to reverse the trial court's judgment "rarely and only after
a clear abuse of discretion." Montgomery v. State , 810 S.W.2d 372, 389
(Tex. Crim. App. 1991).
Rule 403 does not require that the balancing test be performed on the record. Hitt v. State , 53 S.W.3d 697, 706 (Tex.App.—Austin 2001) (citing
Yates v. State , 941 S.W.2d 357, 367 (Tex.App.—Waco 1997, pet. ref’d). In
overruling a Rule 403 objection the trial court is assumed to have applied a
Rule 403 balancing test and determined the evidence was admissible. Id .;
Poole v. State , 974 S.W.2d 892 (Tex.App.—Austin 1992). The reviewing
court, however, cannot simply conclude "the trial judge did in fact conduct
the required balancing and did not rule arbitrarily or capriciously." Yates ,
941 S.W.2d at 392. The trial court's ruling must be measured against the
relevant criteria by which a Rule 403 decision is made. Id . In other words,
the reviewing court must look at the proponent's need for the evidence in
addition to determining the relevance of the evidence. Id . at 392-93.
B. Argument
Appellant is wrong to assert that the trial court in the instant case did not conduct a balancing test under Rule 403 as it was required to do, and is
therefore also incorrect to contend that the trial court admitted the evidence
without any guiding rules or principles and abused its discretion.
Appellant’s trial counsel objected outside the presence of the jury to the
introduction of the aforementioned recordings of jail calls under Rule 403,
arguing that the recordings were cumulative with respect to the issue of
Appellant’s operation of the vehicle and prejudicial since they showed that
Appellant was in custody when the calls were recorded. R.R. Vol. 4, p. 5.
The State argued that the recordings were not cumulative, but were uniquely
probative of Appellant’s operation of the vehicle in question. Id . at 5-6. The
trial court overruled Appellant’s objection, saying:
Because the Court thinks it is an issue that’s been made as to whether he was driving the vehicle, the court is going to overrule your objection and I find that it’s not cumulative for that reason because that has become an issue as to whether he was the driver in this matter, so your objection is overruled.
Id . at 6-7.
In overruling Appellant’s objection, the trial court implicitly held that the probative value of the recorded jail calls with respect to the issue of
Appellant’s operation of the vehicle in question was not substantially
outweighed by any danger of unfair prejudice relating to the Appellant’s
presence in custody at the time they were made. The contents of the jail
calls, as detailed above in the State’s reply to Appellant’s first and second
points of error, were highly and uniquely probative of the fact that Appellant
was operating the white truck on the evening of his arrest. The other
evidence that Appellant was operating the vehicle, while substantial, was
largely circumstantial, requiring the jury to draw inferences from the
combined testimony of McCrum and Boucher. The jail phone calls,
however, contained admissions by Appellant that he had been operating the
white truck. And the asserted prejudicial effect, i.e., that the introduction of
jail calls shows the jury that Appellant was in custody, is not sufficient to
substantially outweigh the recordings’ probative value. The jury had already
been presented with evidence showing that Appellant was taken into custody
on the night of the offense.
The trial court did not abuse its discretion in overruling Appellant’s objection under Rule 403, since the probative value of the evidence was not
substantially outweighed by any danger of unfair prejudice resulting from its
admission. The trial court is presumed to have applied the required
balancing test, and Rule 403 does not require that the balancing test be
performed on the record. See Yates , 941 S.W.2d at 367. Appellant’s third
point of error should be overruled.
PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the State prays the
Court deny Appellant’s appeal and affirm the judgment of the trial court.
Respectfully submitted, OFFICE OF THE DISTRICT ATTORNEY 33 rd and 424 th JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P.O. Box 725
Llano, Texas 78643 Telephone: (325) 247-5755 Telecopier: (325) 247-5274 /s/ R. Blake Ewing By: _______________________________ R. Blake Ewing Assistant District Attorney State Bar No. 24076376 ATTORNEY FOR APPELLEE CERTIFICATE OF COMPLIANCE This is to certify that the pertinent portion of this brief contains 7,480 words printed in Times New Roman 14-point font, according to the
Microsoft Word TM 2013 word count tool.
/s/ R. Blake Ewing _______________________________ R. Blake Ewing *47 CERTIFICATE OF SERVICE This is to certify that a true copy of the above and foregoing instrument, together with this proof of service hereof, has been forwarded on
the 27 th day of July, 2015, to Mr. Tracy D. Cluck, Attorney for Appellant, by
email at tracy@tracyclucklawyer.com
/s/ R. Blake Ewing _____________________________ R. Blake Ewing Assistant District Attorney