                                                                        ACCEPTED
                                                                   01-14-00697-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               3/9/2015 4:09:49 PM
           No. 01-14-00697-CR                                 CHRISTOPHER PRINE
                                                                            CLERK
           No. 01-14-00698-CR

                   In the
             Court of Appeals                    FILED IN
                                          1st COURT OF APPEALS
                  For the                     HOUSTON, TEXAS
          First District of Texas         3/9/2015 4:09:49 PM
                At Houston                CHRISTOPHER A. PRINE
                                                  Clerk
        
               No. 1408625
               No. 1408626
        In the 262nd District Court
         Of Harris County, Texas
        
           David Sendejo
                 Appellant
                   V.
     THE STATE OF TEXAS
                 Appellee
        
     STATE’S APPELLATE BRIEF
        

                             DEVON ANDERSON
                             District Attorney
                             Harris County, Texas

                             ALAN CURRY
                             Assistant District Attorney
                             Harris County, Texas
                             State Bar Number: 05263700

                             PHILLIP LEHMANN
                             Appellate Division Intern
                             Harris County, Texas

                             1201 Franklin, Suite 600
                             Houston, Texas 77002
                             Telephone: 713.755.5826
                             curry_alan@dao.hctx.net

ORAL ARGUMENT CONDITIONALLY WAIVED
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since the issues appear well-settled in Texas jurisprudence. But the

State will present argument if this Court deems it necessary.


                      IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Alan Curry  Assistant District Attorney on appeal
             Jamie Morrison Assistant District Attorney at trial
             Kelli Johnson Assistant District Attorney at trial
             Phillip LehmannAppellate Division Intern

      Appellant or criminal defendant:

             David Sendejo

      Counsel for Appellant:

             Ricardo Gonzalez Counsel at trial
             Marco Gonzalez Counsel at trial
             Thomas J. Lewis Counsel on appeal


      Trial Judge:

             Honorable Denise Bradley Presiding Judge



                                           i
                                          TABLE OF CONTENTS




STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ...................................................................i

TABLE OF CONTENTS ......................................................................................... ii

INDEX OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE.................................................................................. 1

STATEMENT OF FACTS ......................................................................................... 2

SUMMARY OF THE ARGUMENT ......................................................................... 5

REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 5

  I. Standard of review and applicable law regarding legal sufficiency of the
  evidence ..................................................................................................................5
  II. The evidence is legally sufficient to prove that the appellant committed
  aggravated assault .................................................................................................6

REPLY TO APPELLANT’S SECOND POINT OF ERROR................................... 9

  I. Standard of review and applicable law regarding denial of a motion for
  mistrial. ...................................................................................................................9
  II. The court did not err in denying the appellant’s motion for mistrial. .....10

CONCLUSION ........................................................................................................ 14

CERTIFICATE OF SERVICE ................................................................................ 15




                                                              ii
                                      INDEX OF AUTHORITIES

CASES

Adames v. State,
 353 S.W.3d 854 (Tex. Crim. App. 2011) ..................................................................6
Archie v. State,
  340 S.W.3d 734 (Tex. Crim. App. 2011) ......................................................... 10, 11
Dues v. State,
 634 S.W.2d 304 (Tex. Crim. App. 1982) ..................................................................7
Gardner v. State,
  730 S.W.2d 675 (Tex. Crim. App. 1987) ................................................................13
Hawkins v. State,
 135 S.W.3d 72 (Tex. Crim. App. 2004) ........................................................... 10, 11
Jackson v. Virginia,
   443 U.S. 370 (1979) .................................................................................................6
Kemp v. State,
  846 S.W.2d 289 (Tex. Crim. App. 1992) ................................................... 11, 12, 13
Martinez v. State,
 754 S.W.2d 831 (Tex. App.—
 Houston [1st Dist.] 1988) .........................................................................................7
McDougal v. State,
 105 S.W.3d 119 (Tex. App.—
 Fort Worth 2003, pet. ref’d) ....................................................................................6
McGowan v. State,
 664 S.W.2d 355 (Tex. Crim. App. 1984) ..................................................................7
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990), on reh'g (June 19, 1991) .........................10
Rojas v. State,
  986 S.W.2d 241 (Tex. Crim. App. 1998) ......................................................... 11, 12
Trevino v. State,
  752 S.W.2d 735 (Tex. App.—
  Eastland 1988) .....................................................................................................7, 8



                                                           iii
Wood v. State,
 206 S.W.3d 646 (Tex. Crim. App. 2006) ..................................................................6


STATUTES

Tex. Penal Code Ann. § 22.01(a) (West Supp 2013) ....................................................6
Tex. Penal Code Ann. § 22.02(a) (West Supp. 2013). ...................................................7

RULES

TEX. R. APP. P. 38.2(a)(1)(A)........................................................................................ i
TEX. R. APP. P. 39.1 ..................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................. i




                                                            iv
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

        In Cause No. 1408625, the State charged the appellant with unlawfully,

intentionally, and knowingly causing bodily injury to Aaron Franco by shooting him

with a firearm (CR, Case 1, at 8). The indictment included an enhancement paragraph

that alleged that the appellant had a prior conviction for aggravated robbery (CR, Case

1, at 8).

        In Cause No. 1408626, the State charged the appellant with unlawfully,

intentionally, and knowingly causing bodily injury to Angel Franco by shooting him

with a firearm (CR, Case 2, at 9). This indictment also included an enhancement

paragraph that alleged that the appellant had a previous conviction for aggravated

robbery (CR, Case 2, at 9).

        The appellant entered a plea of not guilty in both cases (CR, Case 1, at 438; CR,

Case 2, at 449). The jury returned verdicts of guilty in both cases (CR, Case 1, at 454;

CR, Case 2, at 466). The court then found the enhancement allegation true and

assessed the appellant’s punishment at 65 years in prison (Id.). The appellant timely

filed written notices of appeal to complain of his convictions for the offense of

aggravated assault (CR, Case 1, at 457; CR, Case 2, at 469).

                         
                               STATEMENT OF FACTS

       On the night of July 30th, 2013, Angel Franco, Marcellino Franco, and Aaron

Franco were spending time together at Aaron Franco’s apartment located at 539

Yorkshire St., Houston TX, 77002, in Harris County, Texas (3 RR, Case 1, at 17-18).

Aaron Franco lived in Unit No. 3 on the first floor (3 RR at 36). Shortly after

midnight there was a knock at the door (3 RR, Case 1, at 19). Aaron Franco answered

the door, and it was the appellant, David Sendejo (Id.). Aaron Franco let David in

and asked him what was going on (Id. at 20).

       The appellant appeared “very hyper, agitated” (Id. at 20). The appellant told

Aaron that he was looking for another gentleman and asked “where the black guy was

that carried the backpack that lived [here]” (Id.). Aaron told the appellant that the

only black man that he knew that had the backpack lived in Unit No. 4 of the

apartment complex (Id.). At this point, the appellant left Aaron Franco’s apartment,

presumably to check Unit No. 4. (Id.). Shortly thereafter, he returned, asking Aaron

“why did you lie to me?” (Id. at 21). After speaking with Aaron again, the appellant

realized he was thinking of Unit No. 5, when in fact Aaron had earlier told him Unit

No. 4. (Id.). After clearing up this misunderstanding with Aaron Franco, the appellant

left again for the other unit (Id. at 22).

       After leaving Aaron Franco’s apartment for the second time, Aaron turned on

the porch light (Id. at 22). About three or four seconds later, Aaron heard “his light



                                             2
get slapped” (Id. at 22).    The light bulb “wasn’t busted, but it wasn’t working

anymore” (Id. at 34). Aaron then opened the door, and the appellant asked Aaron

“why [Aaron Franco] was trying to get in the middle of [his] shit” (Id. at 22.) After a

brief argument, Aaron Franco went back inside his apartment and closed the door,

with the appellant saying that he would “come back and talk” to Aaron (Id. at 23).

      About two minutes later, the appellant returned and knocked on Aaron’s door

(Id. at 23). Aaron then opened the door halfway, and the appellant demanded that

they “talk,” while Aaron told him to go home and that they would do so later (Id. at

24). The appellant was more agitated than previously (Id. at 41). At this point, the

appellant tried to force his way into Aaron Franco’s apartment (Id. at 24). Aaron was

successful in pushing the appellant out of the doorway (Id. at 24). Angel Franco got

up from the dining room table and headed towards the door after it was slammed

shut (Id. at 25). Once Angel was about halfway to the door, there was a single

gunshot fired through the door (Id. at 25).

      The gunshot pierced through Angel’s finger, went through Aaron’s left arm

and then hit Aaron in the stomach (Id. at 25). The shot had been fired almost

immediately after the door had been closed, with at most two seconds in between (Id.

at 26). Throughout all three of Aaron Franco’s encounters with the appellant, the

appellant had been alone, and no other individuals were seen outside on the porch

when Aaron had opened his door (Id. at 26). 9-1-1 Emergency services were called,

and an ambulance arrived on the scene in about three or four minutes (Id. at 27).

                                              3
      Aaron Franco spent a total of eight weeks in the hospital, being first released

after two weeks and then again after a six-week return to the hospital due to

complications (Id. at 27). Aaron Franco had to undergo surgery on his left arm, as the

bullet had fractured one of his bones and displaced another (Id. at 27). The bullet also

entered Aaron’s stomach, ricocheting three times (Id. at 27). Due to the severity of

the damage caused by the bullet, Aaron Franco had to have part of his colon removed

(Id. at 27). He had to wear a colostomy bag in court while testifying (Id. at 27).

Hospital personnel were unable to remove the bullet due to scar tissue from previous

surgeries that Aaron had undergone (Id. at 28).

      Angel Franco stayed in the hospital for roughly six hours (Id. at 43). The bone

in his index finger on his left hand was shattered (Id. at 45). The bone took about six

months to heal, though Angel still cannot bend it as before (Id.).

      Houston Police Department officer Ricardo Salas was dispatched to 539

Yorkshire on July 30th, 2013, the evening in question (Id. at 51). Officer Salas went to

Aaron Franco’s apartment and found the bullet hole in the center of the door at waist

level (Id. at 56). He also observed blood within the apartment (Id. at 57). A nine-

millimeter Luger shell cartridge was recovered from the scene, outside of Aaron’s

apartment (Id. at 58-59). No gun was ever found (Id. at 68).

                        




                                           4
                        SUMMARY OF THE ARGUMENT

        The evidence presented is legally sufficient to prove beyond a reasonable doubt

that the appellant committed aggravated assault by shooting both Aaron and Angel

Franco. Furthermore, the court did not err in denying the appellant’s motion for

mistrial for violation of the appellant’s motion in limine when the trial judge promptly

instructed the jury to disregard the witness’s statement, curing the error.

                         


              REPLY TO APPELLANT’S FIRST POINT OF ERROR

        In his first point of error, the appellant argues that the evidence presented in

his case was legally insufficient to convince any rational factfinder beyond a

reasonable doubt that the appellant committed aggravated assault by shooting both

Aaron Franco and Angel Franco with a firearm.

   I.      Standard of review and applicable law regarding legal sufficiency of
           the evidence

   In a sufficiency review, an appellate court reviews all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 370, 319 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim.

App. 2011).




                                            5
   The party seeking review has the burden to see that a sufficient record is presented

on appeal. Wood v. State, 206 S.W.3d 646, 651 (Tex. Crim. App. 2006), and must bring

forth a complete record of the evidence to show that the State failed to meet its

burden of proving a defendant’s guilt. McDougal v. State, 105 S.W.3d 119, 121 (Tex.

App.—Fort Worth 2003, pet. ref’d).

   II.    The evidence is legally sufficient to prove that the appellant
          committed aggravated assault

   Section 22.01 of the Texas Penal Code provides that a person commits assault if

that person: (1) intentionally, knowingly, or recklessly causes bodily injury to another,

including the person’s spouse; (2) intentionally or knowingly threatens another with

imminent bodily injury, including the person’s spouse; or (3) intentionally or

knowingly causes the physical contact with another when the person knows or should

reasonably believe that the other will regard the contact as offensive or provocative.

Tex. Penal Code Ann. § 22.01(a) (West Supp 2013). Section 22.02(a) of the Texas

Penal Code provides that a person commits the offense of aggravated assault when

the person commits assault as defined in § 22.01 and the person: (1) causes serious

bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly

weapon during the commission of an assault. Tex. Penal Code Ann. § 22.02(a) (West

Supp. 2013).

   The appellant does not argue that Aaron and Angel Franco were not the victims of

an aggravated assault. The appellant argues only that there is not sufficient evidence


                                           6
to prove beyond a reasonable doubt he fired the weapon. While the appellant argues

that the identity of the gunman remains unknown, the record is more than sufficient

to prove beyond a reasonable doubt that the appellant fired the weapon into the

victim’s apartment and to uphold the appellant’s conviction for aggravated assault

with a deadly weapon.

   “It is well established that threats can be conveyed in more varied ways that merely

a verbal manner.” McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). “A

threat may be communicated by action of conduct as well as words.” Id.; Martinez v.

State, 754 S.W.2d 831, 833 (Tex. App.—Houston [1st Dist.] 1988). “It is not necessary

that the complainant be placed in fear of imminent serious bodily injury; it is the

appellant's threat, made with the intent to place the complainant in fear of imminent

serious bodily injury that constitutes the offense.” Dues v. State, 634 S.W.2d 304, 306

(Tex. Crim. App. 1982); Trevino v. State, 752 S.W.2d 735, 736-37 (Tex. App.—

Eastland), pet. dism’d, 759 S.W.2d 142 (Tex. Crim. App. 1988). “It is immaterial to the

offense whether the accused had the capability or the intention to carry out his

threat.” Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

   In Trevino, the complainant and two other men were walking home from a bowling

alley. Trevino, 752 S.W.2d at 736. The defendant, after driving by and recognizing the

complainant, stopped his pickup truck. Id.      The defendant exited the truck and

accosted the complainant. Id. After exchanging words, the defendant retrieved a knife

from his truck and thrust it at the complainant. Id. The complainant refused to fight

                                          7
and attempted to leave the scene, but the defendant drove his truck over a curb and

tried to run over the complainant. Id. After missing the complainant, the defendant

sped away in his truck. Id.

   Later that evening/early morning, the defendant and a friend drove to the

complainant’s residence where the defendant fired one shot from a .22 caliber rifle

into the house and then fled. Id. The bullet went through a metal door frame, made

an indention in the wooden door, and came to rest on the porch. Id. The only

occupants home at the time were the complainant’s mother and sister. Id. The

complainant was at the police station making his statement regarding the knife

incident when his sister notified him of the shooting. Id.

   In the instant case, the events that occurred on the late night and early morning of

July 30, 2013 are analogous to the facts in Trevino. Like the complainant in Trevino,

Aaron Franco and Angel Franco were accosted by the appellant prior to the shooting.

The appellant had come to Aaron Franco’s apartment three times, in increasingly

belligerent states, verbally argued with Aaron Franco, knocked down his porch light,

and then attempted to force his way into Aaron Franco’s apartment (3 RR, Case 1, at

22-24, 32, 41). Only 1-2 seconds after Aaron Franco was able to expel the appellant

from the apartment and close the door, was a gun fired whose bullet hit both Aaron

and Angel Franco (Id. at 25-26).

      Aaron and Angel Franco were present at the scene, just mere seconds before

the gun was fired and the bullet struck the both of them (Id.). They witnessed

                                            8
personally and experienced serious bodily injury (injured fingers, fractured bones, and

damaged organs) with virtually no time between their confrontation with the appellant

and the gunshot (Id.). Additionally, a nine-millimeter Luger shell cartridge was found

outside Aaron Franco’s apartment, and there was a bullet hole in the door at waist

level (Id. at 57, 59). It is it not necessary for Aaron and Angel Franco to have

personally seen the firearm. As a result, the evidence is legally sufficient to sustain the

appellant’s conviction for aggravated assault. Thus, this Court should overrule the

appellant’s first point of error and uphold his conviction.

                         


          REPLY TO APPELLANT’S SECOND POINT OF ERROR

   In his second point of error, the appellant argues that the court erred in denying

his motion for mistrial when testimony from a State’s witness was heard by the jury in

violation of the appellant’s motion in limine.


   I.     Standard of review and applicable law regarding denial of a motion
          for mistrial.


   A mistrial is the trial court's remedy for improper conduct that is “so prejudicial

that expenditure of further time and expense would be wasteful and futile.” Hawkins v.

State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The denial of a motion for mistrial

by the trial court is reviewed for an abuse of discretion. Archie v. State, 340 S.W.3d 734

(Tex. Crim. App. 2011). “As long as the trial court's ruling was at least within the

                                            9
zone of reasonable disagreement, the appellate court will not intercede.” Montgomery v.

State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990), on reh'g (June 19, 1991).

   II.    The court did not err in denying the appellant’s motion for mistrial.


   The appellant argues that the trial court abused its discretion in refusing to grant a

mistrial because Angel Franco’s testimony in violation of the appellant’s motion in

limine regarding the “gun” which the appellant “always had” was so prejudicial as to

be impossible for the jury to disregard. In determining whether the trial court abused

its discretion, a reviewing court must examine the same factors that would be

considered in a harm analysis. Archie, 221 S.W.3d at 700. These include: (1) the

severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the

certainty of the punishment assessed absent the misconduct (likelihood of the same

punishment being assessed). Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004); Archie v. State, 221 S.W.3d 695 at 697.

   “Testimony referring to or implying extraneous offenses can be rendered harmless

by an instruction to disregard by the trial judge, unless it appears the evidence was so

clearly calculated to inflame the minds of the jury or is of such damning character as

to suggest it would be impossible to remove the harmful impression from the jury's

mind.” Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

   In Rojas v. State, the Court of Criminal Appeals addressed such a situation. Rojas v.

State, 986 S.W.2d 241, 250-51 (Tex. Crim. App. 1998). The defendant in a capital


                                           10
murder trial argued that the trial court erred in denying his motion for mistrial after

sustaining his objection to the testimony of the State’s witness. Id. During the

guilt/innocence phase of the trial, Texas Ranger George Turner, in response to a

question about whether Turner believed the version of events given by the defendant

in his confession, said: “I believe that she wanted him to move out. She knew

because of his past anger, his past violence that that was the only way…” Id. Defense

counsel objected and moved for a mistrial because the comment was not responsive

to the question, beyond any evidence at trial, prejudicial, and inflammatory, and a

violation of the defendant’s due process rights. Id. The trial court sustained the

objection and instructed the jury to disregard Turner’s comment, but denied the

defendant’s motion for mistrial. Id.

   The Court of Criminal Appeals reasoned that Turner’s comment was not a

concrete reference to an extraneous offense, but merely vague speculation. Id. Due to

defense counsel’s timely objection, Turner was prevented from elaborating on the

mentioned extraneous conduct. Id. The court also found that the trial court judge’s

prompt sustaining of counsel’s objection conveyed the appropriate message that the

witness’s comment was not supported by the evidence and was not to be considered.

Id. Therefore, the Court of Criminal Appeals ruled that the trial judge’s instruction to

disregard cured any error and the judge did not abuse his discretion in overruling the

defendant’s motion for mistrial. Id. at 51.




                                              11
      In Kemp v. State, the Court of Criminal Appeals held that the trial court did not

abuse its discretion when it denied the defendant’s motion for mistrial on similar

facts. Kemp, 846 S.W.2d at 308.          One of the State’s witnesses testified that the

defendant had a prior felony conviction, even though this statement was in violation

of one of the defendant’s motions in limine. Id. When asked by the State, “When you

received that information, what did you do with the information?”, the State’s witness

replied, “Began checking it out…and to the best of my memory, this caller also

provided information that she had a son named Kent or Kemp who had recently been

released from the penitentiary.” Id.

      The defendant asked for, and the trial court instructed the jury to “disregard for all

purposes the last answer of the officer… and [to] consider it for no purpose in this

trial.” Id. The Court of Criminal Appeals found that although this evidence was

inadmissible, it was “not so inflammatory so as to undermine the efficacy of the trial

court’s instruction to disregard.” Id.

      A similar statement was likewise made in Gardner v. State by a witness that the

defendant had “told [him] that even when [the defendant] was in the penitentiary, that

he had stomach problems.” Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim. App.

1987). The court held that this was cured by the trial court’s instruction to disregard.

Id.

      In the instant case, the State gave notice to the appellant of its intent to call

witnesses to testify that they had seen him with a gun prior to the evening of the

                                              12
aggravated assault (3 RR at 5-7). The appellant made a motion in limine to exclude

the testimony on the ground that it was more prejudicial than probative and the court

granted the motion (Id. at 7). On direct examination, State’s witness Angel Franco

was asked by the prosecutor, “How are you sure that the defendant is the one that

shot you?” (Id. at 43). Angel Franco replied, “Because he was the only one by the

door and everyone has always seen him with that gun that he’s had” (Id.).

   Defense counsel objected immediately and the judge sustained the objection (Id.).

Defense counsel then asked for an instruction to the jury to disregard Angel Franco’s

answer and the judge told the jury to “disregard the last statement that the witness

made.” (Id. at 43-44). At this point, defense counsel asked for a mistrial, which was

then denied (Id. at 44).

   Just as the witness’s statement in Rojas, Angel Franco’s statement was not a

concrete reference to an extraneous offense, but merely vague speculation.

Additionally, as in both Rojas and Kemp, the judge’s prompt sustaining of defense

counsel‘s objection conveyed the appropriate message that Angel Franco’s statement

was not to be considered. The judge’s instruction was sufficient to disregard any error

and the judge did not abuse her discretion in denying the appellant’s motion for

mistrial.

                           




                                          13
                                 CONCLUSION

      For the foregoing reasons, the State respectfully prays that this Court will

overrule appellant’s two points of error, and will affirm appellant’s conviction for

aggravated assault.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        14
                     CERTIFICATE OF COMPLIANCE

       This is to certify that this computer-generated document has a word count of

3,327 words, based upon the representation provided by the word processing

program that was used to create the document.




                                                  /s/ Alan Curry

                                                  ALAN CURRY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  TBC No. 05263700
                                                  curry_alan@dao.hctx.net




                                        15
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to

appellant’s attorney at the following address on March 9, 2015:

      Thomas J. Lewis
      1602 Washington Ave.
      Houston, Texas 77007
      State Bar No. 12308540
      Phone: (713) 256-6779
      Fax: (713) 861-2951
      E-Mail: tjlaw@comcast.net

                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net




                                          16
