                                                                                     ACCEPTED
                                                                                 01-14-00320-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           12/21/2015 8:14:59 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                       No. 01-14-00320-CR

                      In the Court of Appeals                 FILED IN
                   For the First District of Texas     1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
                            At Houston                 12/21/2015 8:14:59 AM
                       ♦                     CHRISTOPHER A. PRINE
                                                                Clerk
                           No. 1382166
                     In the 183rd District Court
                      Of Harris County, Texas
                       ♦
                         Eric Baumgart
                            Appellant
                                 v.
                        The State of Texas
                             Appellee
                       ♦
               State’s Response to Appellant’s
              “Motion to Vacate Void Judgment”
                       ♦



Clinton A. Morgan                              Devon Anderson
Assistant District Attorney                    District Attorney
Harris County, Texas                           Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net                    Thomas Heyward Carter
                                               Lauren Elizabeth Byrne
1201 Franklin St., Suite 600                   Assistant District Attorneys
Houston, Texas 77002                           Harris County, Texas
Telephone: 713 274 5826


                   Oral Argument Not Requested
                 Statement Regarding Oral Argument

      The appellant has requested oral argument. However, this Court

has already affirmed the appellant’s conviction and denied rehearing.

This is a motion that has been filed while the appellant’s motion for en

banc reconsideration is pending, and it raises claims that the appellant

did not raise in his appellate brief. The State believes that oral argument

on such a motion would be inappropriate and would cause needless

delay in the disposition of this case.

      The State notes that the Rules of Appellate Procedure give parties

a right to oral argument only as it relates to their appellate briefs, not to

miscellaneous motions. See TEX. R. APP. P. 39.1.




                                         i
                                                  Table of Contents

Statement Regarding Oral Argument ................................................. i
Table of Contents ................................................................................. ii
Index of Authorities ........................................................................... iii
Statement of the Case .......................................................................... 1
Summary of the Argument .................................................................. 2
Response to the Appellant’s Motion ................................................. 3
   The appellant’s motion fails on the merits and is procedurally
   inappropriate. This Court should quickly deny it without opinion. ....... 3
      I.       Background ....................................................................................................... 3
           A. The appellant claimed that the trial court did not have
           jurisdiction to hear this case because the State could not prove
           the elements of the offense. ............................................................................ 3
           B. The trial court initially agreed with the appellant that it did
           not have jurisdiction, but it later changed its mind. ............................. 4
      II. Addressing the Appellant’s Motion on the Merits ............................ 5
           A. The appellant’s motions requested remedies that the trial
           court did not and could not grant. ............................................................... 5
           B. The trial court did not issue an order, it merely stated its
           belief. ..................................................................................................................... 10
      III. Addressing the Procedural Inappropriateness of the Appellant’s
      Motion ....................................................................................................................... 13
           A. This is an untimely motion in arrest of judgment that has
           been filed in the wrong court. ..................................................................... 13
           B. If this Court chooses to view the appellant’s motion as some
           sort of motion for rehearing or amendment to his motion for en
           banc reconsideration, the motion would still be inappropriate... 16
Conclusion .......................................................................................... 18
Certificate of Service......................................................................... 19




                                                                   ii
                                           Index of Authorities



Cases
Adams v. State
  843 S.W.2d 174 (Tex. App.—
  Dallas 1992, no pet.) ................................................................................................ 17
Baumgart v. State
  01-14-00320-CR, 2015 WL 5634246 (Tex. App.—
  Houston [1st Dist.] Sept. 24, 2015, no. pet. h.)
  (mem. op. not designated for publication) ........................................................ 1
Browning v. Prostok
  165 S.W.3d 336 (Tex. 2005) .................................................................................. 16
Crittendon v. State
  923 S.W.2d 632 (Tex. App.—
  Houston [1st Dist.] 1995, no pet.) ...................................................................... 14
Ex parte Clinnard
  169 S.W.2d 181(Tex. Crim. App. 1943) ............................................................ 16
Garcia v. Dial
  596 S.W.2d 524 (Tex. Crim. App. 1980) (orig. proceeding) ..................... 12
Haley v. Lewis
 604 S.W.2d 194 (Tex. Crim. App. 1980) (orig. proceeding) ..................... 11
In re A.J.F.
  313 S.W.3d 475 (Tex. App.—
  Dallas 2010, no pet.) ................................................................................................ 11
Lindley v. Flores
  672 S.W.2d 612 (Tex. App.—
  Corpus Christi 1984, no writ) .............................................................................. 11
State ex rel. Holmes v. Denson
  671 S.W.2d 896 (Tex. Crim. App. 1984) .............................................................. 9
State v. Guerrero
  400 S.W.3d 576 (Tex. Crim. App. 2013) ........................................................... 13
State v. Johnson
  821 S.W.2d 609 (Tex. Crim. App. 1991) .............................................................. 9

                                                            iii
State v. Rosenbaum
  910 S.W.2d 934 (Tex. Crim. App. 1994) .............................................................. 4
Studer v. State
  799 S.W.2d 263 (Tex. Crim. App. 1990) .............................................................. 5


Statutes
TEX. CODE CRIM. PROC. art. 27.08.................................................................................... 8
TEX. CODE CRIM. PROC. art. 28.05.................................................................................... 9
TEX. CODE CRIM. PROC. art. 28.08.................................................................................... 9
TEX. CODE CRIM. PROC. art. 28.09.................................................................................... 9
TEX. CODE CRIM. PROC. art. 36.11 ................................................................................... 7


Rules
TEX. R. APP. P. 22. 1 .......................................................................................................... 14
TEX. R. APP. P. 22.2 ........................................................................................................... 14
TEX. R. APP. P. 22.3 ........................................................................................................... 14
TEX. R. APP. P. 39.1 ............................................................................................................... i




                                                                 iv
                           Statement of the Case

      The appellant was indicted for the state-jail-felony offense of

tampering with a governmental record. (CR 11). The appellant pleaded

not guilty. (2 RR 5). A jury found him guilty as charged. (CR 822, 824).

The trial court sentenced the appellant to two years’ confinement in the

state jail, but suspended the sentence and ordered that the appellant

serve five years’ community supervision. (CR 824). The trial court

certified the appellant’s right of appeal, and the appellant filed a timely

notice of appeal. (CR 833, 834).

      This Court affirmed the appellant’s conviction in an unpublished

opinion. See Baumgart v. State, 01-14-00320-CR, 2015 WL 5634246

(Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no. pet. h.) (mem. op. not

designated for publication). The appellant filed a motion for rehearing,

which this Court overruled on November 10, 2015. The appellant filed a

motion for en banc reconsideration on November 24, 2015, and that

motion is still pending.

      On December 9, 2015, the appellant filed a “Motion to Vacate Void

Judgment.” On December 17, 2015, this Court requested that the State

respond to the appellant’s motion.



                                     1
                       Summary of the Argument

      The State urges this Court to quickly deny the appellant’s motion

without a written opinion. The appellant’s claim fails on the merits

because the trial court never dismissed the case or quashed the

indictment, thus it never lost jurisdiction over the case. At one point the

trial court seemed to believe that it did not have jurisdiction in the case,

but, rather than issuing an order that would effectuated that belief, it

reset the case for further consideration of the matter. Eventually the trial

court came to the correct conclusion that it had jurisdiction. At no point

in time did the trial court make any order that divested it of jurisdiction.

      Procedurally, the appellant’s motion is inappropriate. This Court

ought not allow litigants to raise new claims at this stage of the

proceedings. The appellant’s remedy, if any, for a claim not raised in his

appellate brief is through a post-conviction writ of habeas corpus.




                                     2
                  Response to the Appellant’s Motion


The appellant’s motion fails on the merits and is procedurally
inappropriate. This Court should quickly deny it without opinion.

    I.   Background

            A. The appellant claimed that the trial court did not
               have jurisdiction to hear this case because the State
               could not prove the elements of the offense.

      Prior to trial, the appellant filed a prodigious number of motions.

(See CR 2-9). Two pre-trial filings are relevant here: a “Request for

Declaratory Judgment” (CR 679-80) and a “Brief on Motion to Dismiss.”1

(CR 706-11). In both of these filings the appellant argued that the traffic

citation that the State charged the appellant with falsifying was not a

governmental record, as alleged in the indictment. In the “Request for

Declaratory Judgment,” the appellant asserted that, because the citation

was not a governmental record, “the facts in the Indictment do not

constitute a criminal offense and the Court’s jurisdiction was not

invoked.” (CR 679). In the “Brief on Motion to Dismiss,” the appellant

went further and asserted that because the trial court did not have




1The record does not contain any independent “Motion to Dismiss,” however the
“Brief on Motion to Dismiss” concludes by requesting dismissal. (See CR 711).

                                     3
jurisdiction it should “dismiss the case and discharge the defendant.”

(CR 711).


             B. The trial court initially agreed with the appellant
                that it did not have jurisdiction, but it later changed
                its mind.

      On October 1, 2013, after a jury was selected but before the jury

was sworn, the trial court held a hearing on these motions. (See Supp.

RR; CR 858-60).2 At this hearing, the parties reference witnesses from

the prior day, but the record of that testimony is not part of the appellate

record. (See Supp. RR 9; CR 858 (docket sheet noting hearing outside

jurors’ presence on September 30)). At the end of the hearing, the trial

court noted that it had “no authority to dismiss a case,” but, it found

“that the Court is without jurisdiction because this is not a

governmental record….” (Supp. RR 13).3 The trial court described this as


2 The record does not state explicitly whether the October 2013 jury was sworn.
However, when the case went to trial in March 2014 there is a notation in the docket
sheet explicitly noting that that jury was sworn, and that it was done the day after
the jury was selected. (CR 860). Thus, the State believes that the absence of a
notation indicating that the October 2013 jury was sworn is a strong indication that
it was not.

3 Without belaboring the point, the State notes in passing that the trial court’s
conclusion was wrong. The State’s ability to prove an allegation in a facially valid
indictment has no effect whatsoever on the trial court’s jurisdiction and cannot be
litigated through a pre-trial motion. State v. Rosenbaum, 910 S.W.2d 934, 947-48
(Tex. Crim. App. 1994) (dissenting op, adopted by majority on rehearing) (in perjury
case, defendant could not litigate materiality of false statement prior to trial,
                                         4
its “oral findings and conclusions of law” and promised to file written

findings and conclusions the next week. (Supp. RR 13). The trial court

stated that it “[did not] know exactly where that leaves us [other] than I

don’t think this Court has jurisdiction to go forward.” (Supp. RR 13). It

then released the unsworn jury. (Supp. RR 13).

      On October 9, the State filed a “Motion to Reconsider Ruling on

Defendant’s Motion for Declaratory Judgement, Directed Verdict, and

Dismissal.” (CR 728-33). In this motion, the State argued that whether

the traffic citation was a governmental record was an evidentiary matter

for trial, not something to be deiced on pre-trial motion. The trial court

granted this motion on November 27. (CR 733). The case proceeded to

trial a few months later.


    II.      Addressing the Appellant’s Motion on the Merits

                A. The appellant’s motions requested remedies that the
                   trial court did not and could not grant.

          If the trial court was confused in this case — and it was — that is

because the appellant’s motions were confusing. Understanding the




because the matter did not affect jurisdiction); see generally Studer v. State, 799
S.W.2d 263 (Tex. Crim. App. 1990).
                                        5
errors in the appellant’s motions will help explain why his present

motion fails on the merits.

      In the first motion discussed at the hearing, the appellant

requested a “declaratory judgment,” (CR 679) but there is no such thing

in the criminal law of Texas. The same motion, in a single paragraph,

requested both a “directed verdict” and a “dismissal,” but those are two

entirely different things. A directed verdict can only be had after trial

has started and the State has had an opportunity to present its case. The

same paragraph requested a dismissal “because the facts in the

Indictment do not constitute a criminal offense and the Court’s

jurisdiction was not invoked.” But if the trial court had no jurisdiction,

how could it issue a directed verdict?

      In the second relevant motion, the “Brief on Motion to Dismiss,”

there are several pages of argument that the traffic citation was not a

governmental record, which conclude by asserting that “the charge

against [the appellant] is improper, no criminal offense occurred, and

the jurisdiction of this Court was never invoked.” (CR 710). The motion

then has a four-paragraph section stating what relief the appellant was

requesting. The first paragraph requested the trial court to declare that

the traffic citation was not a governmental record and “to dismiss the
                                    6
case and discharge the defendant.” The second paragraph asked the trial

court “to affirm that the alleged record which forms the basis of the

charge in this case is not a governmental record subject to Chapter 37 of

the Texas Penal Code….” The third paragraph did not request anything of

the trial court, but merely quoted Code of Criminal Procedure Article

36.11; however, the appellant’s motion did not quote the portion of

Article 36.11 that makes it apparent that the article only applies “during

a trial.” See TEX. CODE CRIM. PROC. art. 36.11. Finally, in the fourth

paragraph the appellant requested that “this case is dismissed and that

[the appellant] be discharged.”

       In its ruling on these motions, the only requested “relief” that the

trial court granted was to state its belief that the traffic citation was not

a governmental record. As proof that the case was not dismissed, the

State notes that the parties agreed to a future court date. (CR 858).4

Moreover, there is no indication that the appellant was discharged from

his bond.




4Three days after the trial court declared it had no jurisdiction, but prior to the next
court setting, the appellant filed a motion requesting that the case be dismissed due
to prosecutorial misconduct. (CR 724-26). Thus it appears that the appellant did not
believe that the trial court had finally disposed of the case.

                                           7
      The trial court stated that it believed the fact that the citation was

not a governmental record left it without jurisdiction to hear the case.

The trial court also stated that it did not have the authority to dismiss

the case. Though the appellant now insists that these conclusions are

contradictory (see Motion5 at 7 (citing civil case for proposition that

once a court determines it has no jurisdiction it must dismiss the case)),

they are not.

      In a criminal case, the correct way to assert that an indictment

does not properly invoke a trial court’s jurisdiction, or that an

indictment does not allege a criminal offense, is through a pre-trial

exception to the substance of an indictment, commonly called a motion

to quash. The Code of Criminal Procedure contains an exclusive list of

exceptions to the substance of an indictment, two of which are that “it

does not appear therefrom that an offense against the law was

committed by the defendant,” and that “[the indictment] shows upons

its face that the court trying the case has no jurisdiction thereof.” TEX.

CODE CRIM. PROC. art. 27.08.




5Any citations to “Motion” are citation the “Motion to Vacate Void Judgment” to
which the State was requested to respond.
                                      8
      When a trial court is faced with a meritorious exception to the

substance of an indictment, the correct remedy is to quash the

indictment. Quashing is significantly different from dismissing. When a

trial court quashes an indictment, it may order the defendant kept in

custody so that the prosecution may continue under a new or amended

charging instrument. See TEX. CODE CRIM. PROC. arts. 28.05, 28.08. The

State may amend the indictment to remedy whatever flaw caused the

trial court to quash it, and then “the cause may proceed upon the

amended indictment ….” TEX. CODE CRIM. PROC. art. 28.09.

      In contrast, when a case is dismissed, nothing can revive it and the

State must file another charging instrument in another cause number if

it wishes to re-attempt the prosecution. See State ex rel. Holmes v.

Denson, 671 S.W.2d 896, 898-900 (Tex. Crim. App. 1984). When a case is

dismissed — as opposed to when a charging instrument is quashed —

there is no authority allowing the trial court to keep the defendant in

custody on that charge. Unlike quashing a charging instrument, which

occurs on motion of the defendant, dismissing a case almost always

requires a request from the State. See State v. Johnson, 821 S.W.2d 609,

613 (Tex. Crim. App. 1991).



                                    9
      In this case, the trial court declared, as a conclusion of law, that it

did not have jurisdiction to hear this case. However, it did not have

before it a motion to quash the indictment, and it had no authority to do

so on its own. All it had was a motion to dismiss filed by the appellant.6

Given that situation, the trial court sent home the unsworn jury and set

the case for a future hearing where the matter might be resolved,

perhaps through an amended indictment, perhaps through a motion

from the State to dismiss, or a motion from the appellant to quash.


             B. The trial court did not issue an order, it merely stated
                its belief.

      The appellant’s entire “Motion to Vacate Void Judgment” is based

on the premise that the trial court’s statement that it did not have

jurisdiction was a binding, final order. As noted above, the trial court

neither dismissed the case nor quashed the indictment. There was no

order, other than to reset the case for another hearing.

      In his motion, the appellant characterizes the trial court’s

statement as “an order that purported to dispose of all issues which


6 The appellant in this case filed three motions to quash the indictment — two of
which were granted — and numerous documents in support of those motions, so it
is apparent that the appellant understood the distinction between quashing the
indictment and dismissing the case. (See CR 16-25, 74-77, 103-06, 171-81, 197-200,
323-26, 328-31, 337, 382-86).
                                       10
made it a final judgment.” (Motion at 7). That assertion must surely be

incorrect; if the trial court’s statement “dispose[d] of all issues,” why did

the trial court schedule another court date one week later? And why

wasn’t the appellant discharged from bond? The trial court’s statement

that it “[did not] know exactly where [the lack of jurisdiction] leaves us”

prior to dismissing the unsworn jury should serve as adequate proof

that the trial court did not believe it had “dispose[d] of all issues.” (See

Supp. RR 13).

      The appellant relies on citations to In re A.J.F., 313 S.W.3d 475, 478

(Tex. App.—Dallas 2010, no pet.) and Lindley v. Flores, 672 S.W.2d 612,

614 (Tex. App.—Corpus Christi 1984, no writ). Both of those are civil

cases. The holdings from those cases that the appellant seems to be

referencing deal with written orders that purported to finally resolve

issues. Those cases are of, at most, marginal relevance.

      A more relevant citation would have been to Haley v. Lewis, 604

S.W.2d 194 (Tex. Crim. App. 1980) (orig. proceeding). In that case, Haley

was indicted for theft, but, after some procedural wrangling, the trial

court, based on a perceived violation of the now-defunct Speedy Trial

Act (which granted trial courts authority to dismiss cases without a

request from the State in certain circumstances), orally granted the
                                     11
defendant’s motion to dismiss and initialed a docket entry noting that

the case had been dismissed. Haley, 604 S.W.2d at 196. However, it did

not enter a written order of dismissal. A week after orally dismissing the

case, the trial court, “on reconsideration,” entered a written order that

the motion to dismiss was denied. Haley then brought a mandamus

action to force the trial court set aside that written order and to dismiss

the case.

      In holding that Haley was entitled to relief, the Court of Criminal

Appeals noted its binding precedent of Garcia v. Dial, 596 S.W.2d 524

(Tex. Crim. App. 1980) (orig. proceeding), which held that once a trial

court enters an order of dismissal, even if that order is erroneous, the

case was dismissed and the trial court had no jurisdiction to reconsider

that ruling. It then noted that, though the trial court’s order in the case

before it had been only an oral ruling, it was still a binding ruling. This

was because the trial court had explicitly announced its decision to

dismiss the case, it had initialed a docket entry indicating that the case

was dismissed, and an entry of the order of dismissal had been made in

“the minutes of the court.” Haley, 604 S.W.2d at 196-97. In short, the trial

court had made numerous explicit indications that the case was

completely over.
                                    12
      Here, nothing of the sort happened. The trial court did not state

that anything was dismissed or that anything was quashed. It concluded

that it did not have jurisdiction, but it explicitly expressed confusion as

to what that meant. And it set a court date for a week later, which is the

opposite of indicating that the case was completely over. Nothing in the

docket sheet indicates that the case had been dismissed or the

indictment quashed; the docket merely notes that “COURT RULED AS

REFLECTED IN COURT REPORTERS’S NOTES, THE COURT THANKED

THE JURY THEN RELEASED THEM FROM FURTHER SERVICE RECESSED

FOR THE DAY.” (CR 858).


   III.   Addressing the Procedural Inappropriateness of the
          Appellant’s Motion

            A. This is an untimely motion in arrest of judgment that
               has been filed in the wrong court.

      If this Court is unfamiliar with handling a “Motion to Vacate Void

Judgment,” that is probably because “there is no such thing in Texas

criminal law.” See State v. Guerrero, 400 S.W.3d 576, 584 (Tex. Crim. App.

2013). In Guerrero, the Court of Criminal Appeals noted that the closest

thing to a “motion to vacate judgment” was a motion in arrest of

judgment, which is a post-trial motion that must be filed with the trial


                                    13
court within 30 days of sentencing. 7 Ibid; see generally TEX. R. APP. P. 22.

1, 22.3. The Rules of Appellate Procedure establish three grounds on

which a motion in arrest of judgment can be based: 1) “that the

indictment or information is subject to an exception on substantive

grounds”; 2) “that in relation to the indictment or information a verdict

is substantively defective”; or 3) “that the judgment is invalid for some

other reason.” TEX. R. APP. P. 22.2.

       A motion in arrest of judgment can be contrasted with a motion

for new trial. A motion for new trial asserts that a legal error occurred at

trial, and that error can be remedied by a new, lawful trial. A motion in

arrest of judgment asserts that there is something wrong with the

judgment, and that whatever is wrong with the judgment either can be

fixed without a new trial, or is the result of something so fundamentally

wrong that no lawful trial can be had. Traditionally, a motion in arrest of

judgment has been thought of as a post-trial motion to quash. See

Crittendon v. State, 923 S.W.2d 632, 634-35 (Tex. App.—Houston [1st

Dist.] 1995, no pet.) (holding that defendant could not obtain relief on


7 In Guerrero, the Court of Criminal Appeals stated that, though a “motion to vacate
judgment” was not a legitimate motion, it would treat the defendant’s motion as an
Article 11.072 application for writ of habeas corpus because the parties and the trial
court had done so. For the record, the State does not agree to treat the appellant’s
motion as any sort of legitimate appellate filing.
                                         14
motion in arrest of judgment because he had not preserved his

complaints regarding the charging instrument by filing pre-trial motion

to quash).

      The appellant’s motion is not authorized by the Rules of Appellate

Procedure or any other law with which the State is familiar. Had he

timely filed this motion in the trial court, he could have complained

about the trial court’s denial of the motion in a point in his appellate

brief. As it is, the appellant is effectively using a motion — filed after this

Court has already issued an opinion denying his appeal — to raise a

free-standing appellate claim. If this Court were to issue an opinion on

this motion, even an opinion denying the motion, it would encourage

other litigants to raise appellate claims through motions filed at

untimely stages of the appeal. That would be highly disruptive to the

orderly and lawful handling of appeals.

      To make his motion seem legitimate, the appellant characterizes it

as a “collateral attack” on the judgment. It is no such thing; it is an

untimely motion filed in the wrong court. A claim of error on direct

appeal — whether raised appropriately in an appellate brief, or raised

inappropriately in an untimely motion — is a direct attack on the

judgment below. “A collateral attack is an attempt to avoid the binding
                                      15
force of a judgment in a proceeding not instituted for the purpose of

correcting, modifying, or vacating the judgment, but in order to obtain

some specific relief which the judgment currently stands as a bar

against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). In the

criminal law, collateral attacks are typically made via post-conviction

applications for writs of habeas corpus. See, e.g., Ex parte Clinnard, 169

S.W.2d 181, 183 (Tex. Crim. App. 1943); see also Jordan v. State, 54

S.W.3d 783, 786 (Tex. Crim. App. 2001) (disallowing former “habeas

corpus exception” that allowed probationers facing revocation to raise

any claims regarding original finding of guilt that could have been raised

in habeas corpus proceeding, because allowing claims properly raised

on habeas to be raised in other manners threatened orderly

administration of justice).


            B. If this Court chooses to view the appellant’s motion
               as some sort of motion for rehearing or amendment
               to his motion for en banc reconsideration, the motion
               would still be inappropriate.

      Though the State believes it would be wrong to do so, the State

supposes this Court could view the appellant’s motion as some sort of

amendment to his already overruled motion for rehearing, or his

pending motion for en banc reconsideration. Even if this Court were to

                                   16
view this motion as such, it should still deny the motion without opinion

because it would be inappropriate to allow the appellant to raise a

wholly new claim at this stage of the proceedings.

      The most on-point case is Adams v. State, 843 S.W.2d 174 (Tex.

App.—Dallas 1992, no pet.). There — as in this case — the defendant

obtained a different lawyer sometime after the appellate court affirmed

his conviction but before a motion for rehearing was due. Adams, 843

S.W.2d at 175. The new lawyer filed a motion for rehearing that raised

points that had not been raised on original submission. Ibid. The Fifth

Court refused to consider the new points raised in the motion for

rehearing:

      The purpose of a motion for rehearing is to present errors of
      law which have been committed by the court. [The new
      lawyer’s] motion for rehearing asks us to review points of
      error that appellant's court-appointed counsel did not find
      meritorious. Presentation of points of error in a piecemeal
      fashion is inimical to the interests of orderly appellate
      procedure and judicial economy.

Id. at 175-76 (citations omitted).

      The State wholeheartedly agrees with that assessment. The

appellant’s motion does not assert any way in which this Court erred. It

is, therefore, inappropriate as a motion for rehearing or a motion for en

banc reconsideration.
                                     17
                                  Conclusion

      The appellant’s motion is incorrect and inappropriate. This Court

should rapidly dismiss it without an opinion so as not to encourage

similar filings in other cases.



                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas


                                               /s/ C.A. Morgan
                                               CLINTON A. MORGAN
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               713 274 5826
                                               Texas Bar No. 24071454




                                     18
                           Certificate of Service

      I certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Michael D. Gillespie
      226sheldon@gmail.com

                                             /s/ C.A. Morgan
                                             CLINTON A. MORGAN
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002-1923
                                             713 274 5826
                                             Texas Bar No. 24071454


Date: December 21, 2015




                                    19
