                                                                                         ACCEPTED
                                                                                     06-14-00186-CR
                                                                          SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                 7/1/2015 3:19:49 PM
                                                                                    DEBBIE AUTREY
                                                                                              CLERK

                                                   ORAL ARGUMENT REQUESTED ONLY
                                                        IF REQUESTED BY APPELLANT

                                                             FILED IN
                                                      6th COURT OF APPEALS
              No. 06-14-00186-CR through 06-14-00189-CR TEXARKANA, TEXAS
                                                      7/1/2015 3:19:49 PM
                IN THE SIXTH COURT OF APPEALS             DEBBIE AUTREY
                         TEXARKANA, TEXAS                     Clerk
                           ________________

       DARRIAN DE’ANTHONY DAVIS-SANDERS,
                                              Appellant

                                    v.

                    THE STATE OF TEXAS,
                                              Appellee
                           ________________

On Appeal in Cause Nos. CR-12-24246 and CR-12-24273 through CR-12-24275
                   From the 336THJudicial District Court
                         of Fannin County, Texas

__________________________________________________________________


                       STATE’S BRIEF
__________________________________________________________________


                            John B. Setterberg
                          State Bar No. 24043915
                   Assistant Criminal District Attorney
                          Fannin County, Texas
                    101 E. Sam Rayburn Dr., Ste. 301
                           Bonham, Texas 75418
                               903-583-7448
                            903-583-7682 (fax)

                    ATTORNEY FOR THE STATE
                  IDENTITY OF PARTIES AND COUNSEL

      The State certifies that the following is a complete list of the parties,

attorneys, and other persons with interest in the outcome of this case:

(1)   John B. Setterberg, Assistant Criminal District Attorney, Fannin County,

      Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;

      ATTORNEY FOR THE STATE OF TEXAS.

(2)   Micah Belden, 711 N. Travis St., Sherman, Texas 75090; APPELLATE

      ATTORNEY FOR APPELLANT.

(3)   Donald K. Hoover, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas

      75418, TRIAL ATTORNEY FOR APPELLANT;

(4)   Darrian De’Anthony Davis-Sanders, TDCJ # 01957802, Eastham Unit, 2665

      Prison Road #1; Lovelady, Texas 75851; APPELLANT.




                                          i
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

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

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

SUMMARY OF THE ARGUMENT ........................................................................4

ARGUMENT .............................................................................................................5

The trial court could have rationally denied Appellant’s motion to suppress...7

   a. Officers had authority to enter the motel room to serve an arrest warrant
   on the resident tenant .............................................................................................8

   b. Officers had authority to sweep the room for weapons, drugs, and
   people who might be hiding because circumstances indicated they would
   find those things .....................................................................................................8

   c. Officers need not obtain a search warrant in order to ensure their safety
   while executing an arrest warrant ........................................................................11

   d. Appellant was not under arrest at the time of the search, and officers
   could not be expected to conduct a protective sweep without asking limited,
   focused questions to locate the items they were searching for ............................12

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

PRAYER ..................................................................................................................15

CERTIFICATE OF COMPLIANCE .......................................................................16

CERTIFICATE OF SERVICE ................................................................................16




                                                            ii
                                    INDEX OF AUTHORITIES

Cases

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)....................................12

Ex parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978) .......................................6

Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) ...............................5, 7

Green v. State, 78 S.W.3d 604 (Tex. App. – Fort Worth 2002) ................................8

Kentucky v. King, 131 S.Ct. 1849 (2011) ............................................................9, 11

Maryland v. Buie, 494 U.S. 325 (1990) ...............................................................8, 13

Michigan v. Long, 463 U.S. 1032 (1983) ..................................................................9

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ...............................7

Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) .........................................7

Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000) ....................................8, 10

Strickland v. Washington, 466 U.S. 668 (1984) ........................................................6

Terry v. Ohio, 392 U.S. 1 (1968) .........................................................................9, 11

Voelkel v. State, 717 S.W.2d 314 (Tex. Crim. App. 1986)........................................9

Statutes

TEX. CODE CRIM. PRO. Art. 38.23 ............................................................................12




                                                      iii
                      No. 06-14-00186-CR through 06-14-00189-CR

                         IN THE SIXTH COURT OF APPEALS
                               TEXARKANA, TEXAS
                                  ________________

             DARRIAN DE’ANTHONY DAVIS-SANDERS,
                                                            Appellant

                                                v.

                             THE STATE OF TEXAS,
                                                            Appellee
                                      ________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

       COMES NOW the State of Texas, by and through her assistant criminal

district attorney, and respectfully submits this brief in the above-styled and

numbered cause. This is an appeal from four convictions of drug-related offenses.

(Cl. R. at 34-35). 1 Appellant plead guilty in all four cases and was placed on

deferred adjudication on September 19, 2012 for a period of ten years. (Cl. R. at

34-35). The State filed a motion to adjudicate Appellant’s probation on May 29,

2014 (Cl. R. at 39). After a hearing, the trial court found both paragraphs alleged in

the motions to be true and, in cause numbers CR-12-24246, CR-12-24273 and CR-

12-24275, sentenced Appellant to serve 10 years in the Institutional Division of the

Texas Department of Criminal Justice (Cl. R. at 52-53). In cause number CR-12-


1
 For brevity, references to the clerk’s records will be to that in cause no. CR-12-24246 unless
otherwise noted
24274, the court sentenced Appellant to serve 60 years (Cl. R. at 53-54). Appellant

filed notice of appeal on October 17, 2014 (Cl. R. at 55).

                            STATEMENT OF FACTS

      On April 22, 2014, Officer Gary Vann of the Garland Police Department

received numerous reports that two black males were selling methamphetamine in

the parking lot of the Kingsley Inn & Suites (Ct. R. vol. 1, at 11). The Kingsley

Inn & Suites was a local motel that was known for high drug and prostitution

activity (Ct. R. vol. 1, at 10). Officer Vann also got word from a trusted informant

that the two black males had attempted to sell him methamphetamine (Ct. R. vol.

1, at 11). The informant described the men and noted that they were each carrying

a handgun (Ct. R. vol. 1, at 11).

      Officer Vann then went to the motel office and learned that the room

described by the informant was rented and occupied by Brittany Guignard (Ct. R.

vol. 1, at 11). He confirmed through his dispatch that Guignard had outstanding

arrest warrants and called for assistance in serving them (Ct. R. vol. 1, at 12). Once

his back-up arrived, Officer Vann knocked on the door of the motel room (Ct. R.

vol. 1, at 12). There was no answer, but Vann could hear people talking inside (Ct.

R. vol. 1, at 12). He knocked again, and saw Appellant come to front window and

peek out from behind the blinds (Ct. R. vol. 1, at 12). Appellant quickly closed the

blinds and moved away from the window, and Officer Vann could hear “a bunch

                                          2
of running around, talking” (Ct. R. vol. 1, at 12). He knocked a third time; still no

answer (Ct. R. vol. 1, at 12). When Officer Vann knocked a fourth time, Guignard

finally opened the door to the motel room. (Ct. R. vol. 1, at 12).

      When the door opened, Officer Vann was immediately confronted with “a

lot of smoke – marijuana smoke” (Ct. R. vol. 1, at 12). Vann, who was a drug

recognition expert, immediately recognized the odor and saw additional marijuana

in plain sight on a table approximately five feet away (Ct. R. vol. 1, at 12). No one

else was visible in the tiny one-room area, however. The logical place for hiding

was in the enclosed bathroom, which was the only other room in the apartment that

was separate from the main room in which he stood, and Officer Vann could hear

“rustling around” inside (Ct. R. vol. 1, at 12).

      At this point, Officer Vann became concerned that whoever was hiding in

the bathroom was destroying drugs or evidence, so he made entry to secure the

area (Ct. R. vol. 1, at 12-13). While officers searched for others, Vann made

contact with the Appellant, who was just coming out of the bathroom (Ct. R. vol.

1, at 13). Officers also located two other people in the room, one of whom had

been hiding under a pile of clothes in the corner (Ct. R. vol. 1, at 13).

      Once everyone had been located within the room, Officer Vann asked

whether Guignard had any firearms (Ct. R. vol. 1, at 14). She replied that she one

in her backpack and pointed it out among the several that were in the room (Ct. R.

                                           3
vol. 1, at 14-15). Officer Vann recognized Appellant as matching the description

of one of the two men selling methamphetamine, so he asked Appellant whether he

too had a forearm (Ct. R. vol. 1, at 14-15). Appellant advised that he had one in his

backpack and, at Officer Vann’s request, identified which bag belonged to him (Ct.

R. vol. 1, at 14-15). Officer Vann verified with Appellant that the weapon was in

the main pocket of the bag and looked inside to confirm (Ct. R. vol. 1, at 15).

When he did, Officer Vann saw a Smith & Wesson .40 caliber handgun, as well as

the Appellant’s driver’s license and social security card (Ct. R. vol. 1, at 15). When

he removed the weapon to secure it, Officer Vann also saw a large plastic baggy

containing a white, crystal substance that was later confirmed to be

methamphetamine (Ct. R. vol. 1, at 15, 32).


                       SUMMARY OF THE ARGUMENT

      Appellant argues that his trial counsel could have moved to suppress the

evidence found in his backpack. He complains that officers had no right to enter

the room without a warrant, that they had no right to sweep the room once inside,

that they had no right to question Appellant about the existence of a firearm, and

that they had no right to search Appellant’s bag to recover the firearm.

      Despite Appellant’s arguments to the contrary, officers were authorized to

enter to motel room in order to serve an arrest warrant on its occupant, Brittany

Guignard. Additionally, officers had authority to enter and secure plainly visible
                                          4
contraband, and the events leading up to their entry gave officers authority to

sweep the room for additional occupants who might be hiding or destroying

evidence. Moreover, the reliable information received by the officers indicated

that the occupants, one of whom matched the description given by their informant,

were armed with firearms, and officers therefore had a right to search for weapons

as well. Finally, officers were permitted to ask narrowly focused questions of

Appellant in order to ascertain (a) the presence of a weapon, and (b) its location.

      In short, nothing the officers did exceeded their authority under the

circumstances. Any motion to suppress would therefore not have a reasonable

basis in law or in fact, and counsel was under no professional obligation to file it.

Likewise, Appellant suffered no harm from counsel’s refusal to file a motion

because it is not reasonably likely that the motion would have been granted.

Because Appellant does not show that the trial court’s decision to revoke

probation, or its sentence upon revocation, would have been different had counsel

filed a motion to suppress, he has not demonstrated harm and his claim should be

overruled.

                                   ARGUMENT

      Texas courts apply the Strickland standard when considering a claim of

ineffective assistance of counsel. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex.

Crim. App. 2011).        That standard requires the applicant to show, by a

                                          5
preponderance of the evidence, that his attorney’s performance was unreasonably

deficient and that he was actually prejudiced by the deficiency. Id. at 900-01.

      In assessing deficiency, the reviewing court asks whether counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland v. Washington, 466 U.S. 668, 688 (1984). The

reviewing court must be highly deferential to counsel’s performance, and must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. Id. at 689. The court must look to the totality

of the representation and base its decision on the facts of the particular case, with

every effort being made to eliminate the distorting effects of hindsight. Strickland,

466 U.S. at 689-90. This is because “representation is an art, and an act or

omission that is unprofessional in one case may be sound or even brilliant in

another.” Id. at 693. Therefore, the mere fact that another attorney might have

pursued a different strategy will not support a finding of ineffective assistance of

counsel, and the record must affirmatively show that counsel’s action was without

any plausible basis. Id. at 689; Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim.

App. 1978).

      In addition to showing that counsel’s performance fell below an objective

standard of reasonableness, an appellant must also prove that there is a reasonable

probability that but for counsel’s errors, the result of the trial would have been

                                         6
different. Strickland, 466 U.S. at 694. It is not enough to show that the errors had

some conceivable effect on the outcome of the proceeding. Id. at 693. Rather, the

appellant must show that the decision reached would reasonably likely have been

different absent counsel’s error. Id. at 696. Though it is not a strict outcome-

determinative test, “the difference… should alter the merit of an ineffectiveness

claim only in the rarest case.” Id. at 697.

      To successfully demonstrate ineffectiveness for failure to object to evidence,

the applicant must show that the trial court would have erred in overruling a

motion to suppress. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.

2011). A trial court commits error in admitting evidence over objection if it acts

arbitrarily or capriciously, or without any reference to guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The trial

court is given a limited right to be wrong, provided its decision falls within the

zone of reasonable disagreement. Id.; Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). Put another way, Appellant’s trial counsel was ineffective only

if the trial court could not rationally deny his motion to suppress. If the court could

have rationally denied Appellant’s motion, then counsel was not ineffective for

refusing to present it.


The trial court could have rationally denied Appellant’s motion to suppress.

      Appellant lists a number of reasons why the officers should not have
                                              7
searched his bag, and lumps them all together under the single claim that his trial

counsel was ineffective. First, he claims that the protective sweep was itself

overbroad and that the officers had no legal right to be in the motel room at all. He

also claims that Appellant was unlawfully questioned while in custody and that

Appellant did not consent to a search of his belongings.

      a.     Officers had authority to enter the motel room to serve an arrest
warrant on the resident tenant

          Law enforcement may enter a suspect’s residence in order to execute an

arrest warrant, even if no search warrant authorizes their entry. Green v. State, 78

S.W.3d 604, 609 (Tex. App. – Fort Worth 2002, no pet.). Although Appellant

claims that “[i]t is clear that [Appellant] was the target of the search,” 2 the record

shows that officers were attempting to execute an arrest warrant for the owner of

the motel room, Brittany Guignard (Ct. R. vol. 1, at 11). Once she answered the

door and was positively identified, the officers were authorized to enter the room

and arrest Guignard under the warrant.

       b.  Officers had authority to sweep the room for weapons, drugs, and
people who might be hiding because circumstances indicated they would find those
things

          A protective sweep is not a full search, but one that is quick and limited,

typically conducted incident to an arrest, to protect the safety of police officers or

others. Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000). Assuming
2
    Appellant’s br. at 4.
                                           8
sufficient articulable facts exist to support a reasonable apprehension of danger,

officers may, without probable cause or reasonable suspicion, look in closets and

other immediately adjoining spaces from which an attack could be launched.

Maryland v. Buie, 494 U.S. 325, 334 (1990). The sweep may last as long as

necessary to dispel a reasonable suspicion of danger. Id. at 335.

      Even outside of an arrest context, if the circumstances at the time give rise to

a reasonable belief that an individual may have immediate control of a weapon,

officers are permitted to briefly search the person to ensure their safety. Terry v.

Ohio, 392 U.S. 1, 26 (1968).         They may also search the immediate area

surrounding the person and the contents of any open or closed container within that

area, provided said container is capable of concealing a weapon. Michigan v. Long,

463 U.S. 1032, 1049-50 (1983); Voelkel v. State, 717 S.W.2d 314, 316 (Tex. Crim.

App. 1986).

      Officers may also conduct a warrantless entry and sweep if there are other

compelling “exigent circumstances” making those acts objectively reasonable.

Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). For example, officers may enter

and search without a warrant when the circumstances indicate it is reasonably

necessary to prevent the imminent destruction of evidence. Id. at 1857.

      Appellant argues that no circumstances existed that would have allowed a

protective sweep of the motel room or, alternatively, that the authority to sweep

                                          9
was limited to making sure than no one was hiding or destroying evidence. The

first argument is misplaced because officers had the ability to sweep the room

incident to Guignard’s arrest.    See Reasnor, 12 S.W.3d at 815.       The second

argument fails because the facts known to the officers, as well as the reasonable

inferences drawn therefrom, indicated that there were individuals in the room who

were either armed or destroying evidence or both.         Officers were therefore

authorized to search not only for individuals and drugs, but for weapons as well.

In the course of the weapons sweep, officers could open and look inside any

container that could reasonably contain a firearm.

      The alternative suggested by Appellant – that the officers could not briefly

look inside such a container, in this case his bag – would put the officers at an

unreasonable risk of harm. These officers were outnumbered by unfamiliar people

in a bad neighborhood, they had received reliable information that a person

matching Appellant’s description was selling drugs and armed with a firearm, and

they had detected evidence of immediate drug possession and consumption in the

room. Appellant had already shut the blinds when he saw police and hidden in the

bathroom while they knocked on the door, so officers knew he was trying to avoid

police interaction, and his place of hiding was consistent with one who would flush

or hide drugs. Finally, when he was discovered Appellant had in his immediate

control an opaque backpack that conceivably could conceal a weapon. Given the

                                        10
entirety of the situation, it would be wholly unreasonable to expect officers to not

secure the bag, or to simply hand it over to Appellant without any kind of

inspection.

      When an officer is justified in believing that the individual whose
      suspicious behavior he is investigating at close range is armed and
      presently dangerous to the officer or to others, it would appear to be
      clearly unreasonable to deny the officer the power to take necessary
      measures to determine whether the person is in fact carrying a weapon
      and to neutralize the threat of physical harm.

Terry v. Ohio, 302 U.S. 1, 24 (1963).

       c.    Officers need not obtain a search warrant in order to ensure their
safety while executing an arrest warrant

      Appellant suggests that officers should have paused their arrest of Guignard

in order to obtain a warrant to search Appellant’s backpack. However, nothing in

the Constitution requires officers to “call a halt to criminal investigation the

moment they have the minimum evidence to establish probable cause,” and courts

have acknowledged that there are several acceptable reasons law enforcement may

not want to immediately obtain a warrant. Kentucky v. King, 131 S.Ct. 1849,

1860-61 (2011).

      One of them, applicable here, is that officers may wish to obtain more

evidence before submitting what might otherwise be considered a marginal warrant

application. Id. at 1860. Indeed, until officers discovered methamphetamine in

Appellant’s bag they had little more than an informed suspicion he was involved in

                                        11
drug trafficking. Likewise, at the time of the search, they did not know that

Appellant was on felony probation in Fannin County and therefore had no reason

to suspect his possession of a firearm was illegal. Thus they likely did not have

sufficient evidence to obtain a search warrant for Appellant’s bag, and they likely

could not have reasonably arrested Appellant for any crime at that time. However,

the officers did have a reasonable belief that he was armed while they were trying

to execute an arrest warrant and secure the remainder of the motel room. They

were therefore justified in searching for weapons to protect their own safety, but it

is unreasonable to suggest that they should have halted their investigation in order

to obtain a warrant.3

      d.    Appellant was not under arrest at the time of the search, and officers
could not be expected to conduct a protective sweep without asking limited,
focused questions to locate the items they were searching for

       Finally, Appellant argues that the officers impermissibly questioned him

before they searched his bag. He appears to claim that because he was temporarily

detained pending the officers’ sweep, he was “in custody” and officers were

required to warn him before any questioning. See TEX. CODE CRIM. PRO. Art.

38.23. He cites to Dowthitt v. State for the proposition that there are four general

scenarios constituting “custody” for purposes of police questioning: (1) when the

suspect is physically deprived of his freedom in any significant way, (2) when law

3
  This is particularly so because other officers would then have to securely detain Appellant and
the others in the motel room while they waited for Officer Vann to obtain the warrant.
                                               12
enforcement tells the suspect he cannot leave, (3) when law enforcement creates a

situation that would lead a reasonable person to believe that his freedom has been

significantly restricted, and (4) when there is probable cause to arrest and law

enforcement does not tell the suspect he is free to leave. See 931 S.W.2d 244, 255

(Tex. Crim. App. 1996). However, Dowthitt goes on to state that in the first,

second or third scenario, the restriction upon the individual’s freedom must rise to

the level of an arrest, not merely an investigative detention. Id. In the fourth

scenario, the officer’s knowledge of probable cause must actually be conveyed to

the suspect. Id.

      With that in mind, Appellant’s claim comes into serious doubt. There is

nothing in the record indicating that law enforcement told Appellant he was under

arrest or that he could not leave. There is likewise nothing in the record to suggest

Appellant tried to leave or asked to leave and was prevented from doing so. In

fact, there is nothing that suggests law enforcement informed Appellant that he was

even a suspect or that there was probable cause to arrest him. Rather, they simply

asked him whether he had a firearm on or near his person, and where it was

located. Once they ascertained its location in the Appellant’s bag, it became

necessary for officers to open the bag in order to (a) confirm the truth of his

statements, and (b) secure the weapon and “dispel the reasonable suspicion of

danger.” See Maryland v. Buie, 494 U.S. 325, 335 (1990). Because Appellant was

                                         13
not under arrest or otherwise “in custody” at the time the officers spoke to him, and

because their questions were limited to locating the immediate threat of a firearm

on or near his person, officers were not require to warn him before asking

questions. Appellant’s trial counsel was therefore not ineffective for failing to

move to suppress his answers to those questions.

                                   CONCLUSION

       Trial counsel’s representation did not fall below an objective standard of

reasonableness, and there is nothing to suggest that Appellant would have obtained

a different result or sentence had counsel decided to file a motion to suppress. Such

a motion was not likely to succeed, as officers had a legal right to enter the

residence and, once there, to sweep the residence for people, weapons, and drugs.

Having located the Appellant under suspicious circumstances and under a

reasonable impression that he might be armed, the officers were justified in

searching not only his person and the immediate area, but also the bag within his

immediate control. The simple fact that counsel could have filed a motion to

suppress, or that another attorney might have, is simply not enough to sustain a

claim of ineffective assistance. Appellant must show, from the record, that

counsel’s decisions were without any plausible basis. Given the state of the law in

Texas and the particular facts of this case, he has failed to do so.

      Moreover, Appellant has failed to show that the outcome of the case would

                                          14
have been different had counsel filed the proposed motion. Even if, arguendo, the

law was murky or unclear on the propriety of the officers’ actions, there is still no

reasonable probability that the trial court would have granted the motion or handed

down a different sentence. In sum, trial counsel acted on an informed and reasoned

consideration of the law and the facts of his client’s case. Appellant’s claim of

ineffective assistance must therefore fail, and his point of error should be

overruled.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, there being no reversible error

in the trial of this case, the State respectfully moves this Court to overrule

Appellant’s point of error and affirm his conviction. The State further prays for

any and all such additional relief as the Court may deem just and appropriate.

      Dated: July 1, 2015
                                              Respectfully submitted,


                                              /s/   John B. Setterberg
                                              John B. Setterberg
                                              State Bar No. 24043915
                                              Assistant Criminal District Attorney
                                              Fannin County, Texas
                                              101 East Sam Rayburn Dr., Suite 301
                                              Bonham, Texas 75418
                                              903-583-7448
                                              903-583-7682 (fax)



                                         15
                     CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the foregoing document contains 3,601

words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as

computed by the computer program used to prepare the document.


                                            /s/   John B. Setterberg
                                            John B. Setterberg
                                            Assistant Criminal District Attorney
                                            Fannin County, Texas


                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing was served electronically to the individual listed below on this the 1st

day of July, 2015.



                                            /s/   John B. Setterberg
                                            John B. Setterberg
                                            Assistant Criminal District Attorney
                                            Fannin County, Texas


Micah Belden
711 N. Travis
Sherman, Texas 75090
ATTORNEY FOR APPELLANT




                                       16
