                                                                                             ACCEPTED
                                                                                         01-14-01023-CR
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                     6/2/2015 4:20:48 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK

                              NO. 01-14-01023-CR

                 IN THE COURT OF APPEALS FOR THE       FILED IN
                                                1st COURT OF APPEALS
                 FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
                        AT HOUSTON, TEXAS       6/2/2015 4:20:48 PM
                                                               CHRISTOPHER A. PRINE
                                                                     Clerk
               CAUSE NO. 10-DCR-055898, COUNT TWO
        240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


                        STATE OF TEXAS, Appellant

                                     VS.

                   SEAN MICHAEL MCGUIRE, Appellee


                       STATE'S APPELLATE BRIEF


                                           JOHN F. HEALEY, JR.
                                           District Attorney, 268th Judicial District
                                           Fort Bend County, Texas

                                           Jason Bennyhoff
                                           Sherry Robinson
                                           Assistant District Attorneys
--Oral argument requested--
                                           Gail Kikawa McConnell
                                           Assistant District Attorney
                                           SBOT #11395400
                                           301 Jackson Street, Room 101
                                           Richmond, Texas 77469
                                           (281) 341-4460 / (281) 238-3340 (fax)
                                           Gail.McConnell@fortbendcountytx.gov

                                           Counsel for the State of Texas
                    IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Tex. R. App. P. 38.1(a)(1)(A), the State supplements Appellant’s

list of parties to the trial court's final judgment:

THE STATE OF TEXAS, Appellant

John F. Healey, Jr.                              District Attorney, 268th Judicial District
301 Jackson St                                                   Fort Bend County, Texas
Richmond, TX 77469

Jason Bennyhoff                                               Assistant District Attorneys
Sherry Robinson                                                                     at trial

Gail Kikawa McConnell                                           Assistant District Attorney
Fort Bend County District Attorney’s Office                                      on appeal
301 Jackson Street, Room 101
Richmond, Texas 77469


SEAN MICHAEL MCGUIRE. Appellee

Michael W. Elliott                                                  Attorney for McGuire
905 Front Street
Richmond, TX 77469

Kristen Jernigan                                                    Attorney for McGuire
207 So Austin Ave
Georgetown, TX 78626




                                             i
TRIAL COURT

Hon. Donald Higginbotham                                   Judge Presiding
Assigned Judge                                       at Trial on the Merits
c/o Second Administrative Judicial Region of Texas
301 N. Thompson, Suite 102
Conroe, TX 77301


Hon. Thomas Culver, III                                   Judge Presiding
240th District Court, Fort Bend County                at the Writ Hearing
301 Jackson St
Richmond, TX 77469




                                         ii
                                        TABLE OF CONTENTS

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

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . viii

REQUEST FOR JUDICIAL NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

POINTS OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

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

         A.       The standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

         B.       Appellee invited error in leaving Count II pending and is
                  estopped from complaining of his wrong.. . . . . . . . . . . . . . . . . . . . . . 5

                  1.       The double jeopardy clause protects against multiple trials
                           and multiple punishments, not multiple convictions in a
                           single trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                  2.       Article 37.07, Section 1(c) requires a verdict on each count
                           presented by the indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                  3.       A double jeopardy violation by multiple punishments is
                           prevented by issuing mandate on only the greater offense
                           after appellate review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8



                                                           iii
                  4.        Appellee invited error in requesting only one verdict, and
                            the trial court abused its discretion in allowing Appellee to
                            take advantage of his own wrong.. . . . . . . . . . . . . . . . . . . . . . 9

         C.       Final Jeopardy has not attached to either count and there is no
                  double jeopardy bar to a second trial. . . . . . . . . . . . . . . . . . . . . . . . . . 9

         D.       The State avers that if the conviction for felony murder is
                  affirmed, it will dismiss the charge for intoxication manslaughter
                  upon the receipt of mandate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                           iv
                                   INDEX OF AUTHORITIES

CASES                                                                                                     Page

Abney v. United States,
     431 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bigon v. State,
     252 S.W.3d 360 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 6-9

Blueford v. Arkansas,
      132 S.Ct. 2044 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brown v. Ohio,
     432 U.S. 161 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ex parte Cavazos,
      203 S.W.3d 333 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ex parte Koester,
      451 S.W.3d 908 (Tex. App.-Houston [1st Dist.] 2014, no pet.).. . . . . . . . . . 5

Kniatt v. State,
      206 S.W.3d 657 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

North Carolina v. Pearce,
      395 U.S. 711 (1969), overruled on other grounds by
      Alabama v. Smith, 490 U.S. 794 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Prystash v. State,
      3 S.W.3d 522 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Washington v. State,
     326 S.W.3d 701 (Tex. App.--Houston [1st Dist.] 2010, no pet.). . . . . . . . . . 5

Woodall v. State,
    336 S.W.3d 634 (Tex. Crim App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5



                                                       v
CONSTITUTIONS

United States Constitution
      Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
      Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


STATUTES AND RULES

CODE OF CRIMINAL PROCEDURE
    Article 37.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8

PENAL CODE
    Section 19.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Section 49.08.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                         vi
                                NO. 01-14-01023-CR

                   IN THE COURT OF APPEALS FOR THE
                   FIRST JUDICIAL DISTRICT OF TEXAS
                          AT HOUSTON, TEXAS

               CAUSE NO. 10-DCR-055898, COUNT TWO
        240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


                          STATE OF TEXAS, Appellant

                                          VS.

                     SEAN MICHAEL MCGUIRE, Appellee


                          STATE'S APPELLATE BRIEF


TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      The State appeals the trial court’s order of pre-trial habeas relief dismissing

Count II-intoxication manslaughter as a double jeopardy violation after Appellee was

convicted by a jury in Count I-felony murder. Appellee appealed the judgment for

Count I. McGuire v. State, No. 01-14-00240-CR. Count II was tried together with

Count I and for the offense of failure to stop and render in Cause No. 11-DCR-

057073, but remained pending after trial because Appellee insisted that only one

guilty verdict or “an acquittal” be returned after consideration of murder, intoxication


                                          vii
manslaughter, DWI-3rd, DWI-2nd, or DWI.

      The State appeals the dismissal of Count II at the invitation of the trial court

and solely to preserve and/or insure its right to try Appellee on Count II if this Court

were to reverse or vacate the judgment for felony murder. By this appeal, the State

in no way concedes error in No.01-14-00240-CR or believes it likely to be found, but

simply recognizes that several unsettled issues were presented in that appeal.


                     STATEMENT OF ORAL ARGUMENT

      Whether the trial court erred in dismissing Count II as a double jeopardy

violation, is one of law. However, oral argument may be helpful to the Court because

of the common concept that the Double Jeopardy Clause protects against “multiple

convictions,” when its protection prevents multiple trials and multiple punishments

for the same offense.




                                          viii
                REQUEST FOR JUDICIAL NOTICE OF THE
               REPORTER’S RECORD IN NO. 01-14-00240-CR

      With this brief, the State has filed a motion for the Court to take judicial notice

of the reporter’s record in McGuire v. State, No. 01-14-00240-CR. The felony

murder in that appeal, was tried together with the intoxication manslaughter in this

case and the failure to stop and render aid case also pending on appeal in this Court

in No. 01-14-00241-CR. The facts and arguments giving rise to the order at issue

here are found in that record.



                                 POINTS OF ERROR

      Point of Error One: The trial court abused its discretion in allowing
      Appellee to take advantage of his wrong in insisting that only one
      verdict be returned when the indictment alleged two counts.

      Point of Error Two: The trial court abused its discretion in dismissing
      Count II when no verdict had been rendered, the judgment in Count I
      was not final, and the Double Jeopardy Clause did not bar a second trial.




                                           ix
                              STATEMENT OF FACTS1

      On August 2, 2010, at about 12:40 a.m., Appellee hit a motorcycle, throwing

its rider, David Stidman, 214 feet to the side of the road. [5RR82, 86; 6RR74, 119]

Mr. Stidman was killed almost instantly.          [9RR67]     Appellee admitted his

intoxication to DPS Trooper Fillmore, and his admission is corroborated by the

testimony of Troopers Fillmore, Wiles, and Tomlin. [5RR80, 7RR119-20, 6RR34-35,

State’s Ex 85 at 3:23-3:41]

      A mandatory blood draw was taken under the authority of Section 724.012,

Traffic Code. [6RR41, 14RRState’s Ex 88] The blood test showed a blood alcohol

content of .16, but which could have been 0.0 at the time of the accident. [7RR80,

85]

      Appellee was charged in a single indictment with the offenses of felony murder

and intoxication manslaughter:

                                      COUNT I

      did then and there unlawfully commit or attempt to commit a felony, to
      wit: Driving While Intoxicated (Third Offense), and in furtherance of
      the commission, or in immediate flight from the commission of said
      felony, he committed or attempted to commit an act clearly dangerous
      to human life, to wit: while driving a motor vehicle on a public street the


      1
              The record citations to the trial reporter’s record are designated
[volume“RR”page]. The record citations to the reporter’s record of the writ hearing
are designated “RR-writ.” All references to the clerk’s record (“CR”) are to the
record filed in this cause.

                                          1
      defendant failed to maintain an adequate lookout for traffic and road
      conditions and by failing to take proper evasive actions, and thus
      collided with a motorcycle driven by David Stidman causing the death
      of David Stidman.

                                      COUNT II

      It is further presented that on or about August 2, 2010 in Fort Bend
      County, Texas the Defendant, Sean Michael McGuire, did then and
      there unlawfully, by accident and mistake, while operating a motor
      vehicle in a public place while intoxicated, namely by reason of
      introduction of alcohol into the defendant’s body, and by reason of that
      intoxication, did then and there cause the death of David Stidman by
      driving said motor vehicle and striking a motorcycle driven by David
      Stidman.

[1CR10]

      These offense were tried to a jury together with the offense of failure to stop

and render aid in Cause No. 11-DCR-057073, the conviction for which is pending in

this Court in No. 01-14-00241-CR. [4RR1, 35]

      The trial court adopted Appellee’s jury charge, instructing the jury to consider

“in no particular order” felony murder, intoxication manslaughter, DWI-3rd, DWI-

2nd, and DWI. [12RR8, 2CR474-88] The State objected and, pursuant to Article

37.07, requested that the jury be instructed to return a verdict of guilty or not guilty

on each count. [12RR25-26] At Appellee’s insistence that the State was “asking the

Court to engage in a double jeopardy violation,” the trial court overruled the State’s

objection. [12RR18]

      The jury convicted Appellee for felony murder and assessed punishment at

                                           2
eighteen years imprisonment and a $5,000 fine. [2CR483, 493] On March 20, 2014,

the District Attorney wrote a letter to TDCJ, Classifications and Records, explaining

that Count II of the indictment for intoxication manslaughter remained pending

because no verdict had been returned. [2CR525-26]

      On September 2, 2014, Appellee filed a pre-trial motion for writ of habeas

corpus asserting, “Applicant is currently suffering a Double Jeopardy violation

because he has already been convicted of murder for causing the death of David

Stidman and is currently charged with Intoxication Manslaughter for causing the

death of David Stidman.”       [2CR518-45] The State filed a written response.

[2CR539-629]

      On December 9, 2014, after hearing the arguments of counsel, and encouraging

the State to appeal its order, the trial court granted relief, dismissing Count II, and

denying the State’s motion to stay. [RR-writ at 1, 14; 1CR635] The State filed its

timely notice of appeal. [2CR636-641]




                                          3
                        SUMMARY OF THE ARGUMENT

      The Double Jeopardy Clause protects against multiple trials and multiple

punishments, not multiple convictions in a single trial. Any double jeopardy violation

for multiple punishments can be prevented by the issuance of mandate on only one

judgment after appellate review.

      The trial court erred in dismissing Count II-intoxication manslaughter as a

double jeopardy violation for two reasons:

      One, Appellee created his own double jeopardy dilemma by insisting, contrary

to statute, that only one verdict should be returned when the indictment alleged two

counts. Because he invited error, Appellee was estopped from complaining about the

pendency of Count II.

      Two, the decision in neither count was final. Appellee appealed the judgment

in Count I-felony murder, which remains pending; and no verdict was rendered in

Count II-intoxication manslaughter. The record reflects no proof that the pendency

of Count II adversely affected Appellee in prison as argued by counsel. And the

record shows the State had no intention of addressing Count II until the appeal in

Count I became final. Double Jeopardy posed no bar to a second trial.




                                          4
                             STATE’S ARGUMENT

      The trial court erred in dismissing Count II-intoxication manslaughter.

      A.    The standard of review.

      We review a trial court's ruling on a pretrial writ of habeas corpus for an
      abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
      Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.
      App.--Houston [1st Dist.] 2010, no pet.). In conducting this review, we
      view the facts in the light most favorable to the trial court's ruling. See
      Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704.

Ex parte Koester, 450 S.W.3d 908, 910 (Tex. App.--Houston [1st Dist.] 2014, no
pet.).

      B.    Appellee invited error in leaving Count II pending and is
            estopped from complaining of his wrong.

      The reporter’s record of the jury trial reflects that Appellee insisted that the

trial court instruct the jury to return one verdict of guilty, thus leaving Count II

pending. [12RR26-30] At the writ hearing, the State argued that Appellee “created

the situation where he went to trial and ended up without a verdict.” [RR-writ at 9]

      The law of invited error provides that a party cannot take advantage of
      an error that it invited or caused, even if such error is fundamental.
      Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc).
      In other words, a party is estopped from seeking appellate relief based
      on error that it induced. Id. “To hold otherwise would be to permit him
      to take advantage of his own wrong.” Id.

Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim App. 2011) (footnote omitted,

appellant estopped from complaining of a violation of confrontation rights).

      The trial court abused its discretion in allowing Appellee to take advantage of

                                          5
his own wrong.

              1.    The double jeopardy clause protects against multiple trials
                    and multiple punishments, not multiple convictions in a
                    single trial.

       The Fifth Amendment, applicable to the States under the Fourteenth

Amendment, provides that no person shall "be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V & XIV; Brown v. Ohio,

432 U.S. 161, 164 (1977).

       The Fifth Amendment offers three different constitutional protections.
       First, protection against a second prosecution for the same offense after
       acquittal. Second, protection against a second prosecution for the same
       offense after conviction. Third, protection against multiple punishments
       for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717,
       (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794
       (1989); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
       2006).

Bigon v. State, 252 S.W.3d 360, 369-70 (Tex. Crim. App. 2008).

       The Double Jeopardy Clause does not protect against multiple convictions in

a single trial.

       Here, felony murder and intoxication manslaughter are not lesser included

offenses. The State knows of no Texas case requiring the State to proceed to trial on

either felony murder or intoxication manslaughter and not both. Logically, both

should be presented to the jury for its consideration:




                                          6
•       Felony murder2 requires two prior convictions for DWI and intoxication
        manslaughter does not. On this basis, a jury might find that the State failed in
        its proof of the two prior convictions and convict the defendant of intoxication
        manslaughter.

•       Intoxication manslaughter3 requires the death to be caused by reason of the
        intoxication and felony murder does not. On this basis, a jury might find
        against intoxication manslaughter and find the felony murder.

        Thus, to ensure a conviction for either felony murder or manslaughter both

offenses must be presented to a jury, and both must be presented to the same jury in

a single trial because the “allowable unit of prosecution” is one unit per death. Bigon,

252 S.W.3d at 372.

               2.    Article 37.07, Section 1(c) requires a verdict on each count
                     presented by the indictment.

        At trial, the State objected to the jury charge and requested verdicts on each

count pursuant to Article 37.07. [12RR26] At the writ hearing, the State told the trial

court that it had requested a verdict in each count and was entitled to those verdicts

under Article 37.07. [RR-writ at 9] Article 37.07, Section 1(c) provides in pertinent

part:

        If the charging instrument contains more than one count . . . the jury
        shall be instructed to return a finding of guilty or not guilty in a separate
        verdict as to each count and offense submitted to them.



        2
               Tex. Pen. Code § 19.02(b)(3) (West 2010).
        3
               Tex. Pen. Code § 49.08 (West 2010).

                                             7
Tex. Code Crim. Proc. art. 37.07, § 1(c) (West 2010).

      The State was entitled to a jury verdict for each count of the indictment and

Appellee invited error by insisting that only one verdict should be rendered.

             3.    A double jeopardy violation by multiple punishments is prevented
                   by issuing mandate on only the greater offense after appellate
                   review.

      At trial, the State argued that a double jeopardy violation for multiple

punishments can be avoided by abandoning the lesser offense as determined under

Bigon. [12RR16-17] At the writ hearing, the State tendered and argued the test

under Bigon. [RR-writ at 9-10]

      In Bigon, the Court of Criminal Appeals resolved a double jeopardy violation

in Bigon’s conviction for both felony murder and intoxication manslaughter by the

“most serious offense test.” Bigon, 252 S.W.3d at 273. This test is used for policy

reasons including that “this test would eliminate arbitrary decisions based upon the

order of offenses in the charging instrument, that in most circumstances the State

would elect to retain the most serious conviction, and that public safety is insured

through the deterrent influence of penalties.” Id. “[T]he most serious offense is the

offense for which the greatest sentence is assessed.” Id. In Bigon, the sentences were

the same, so the court looked to the degree of felony to find felony murder the most

serious offense and vacated the judgment for intoxication manslaughter. Id.

      Likewise, in this case, if Appellee had been convicted of both felony murder

                                          8
and intoxication manslaughter, after appellate review, this Court could apply the most

serious offense test to prevent a double jeopardy violation for multiple punishments.

             4.      Appellee invited error in requesting only one verdict, and
                     the trial court abused its discretion in allowing Appellee to
                     take advantage of his own wrong.

      Contrary to law, Appellee insisted on one verdict. Appellee is estopped from

complaining about the pendency of Count II when a verdict should have been

rendered at trial.

      As shown in the foregoing argument, and as Appellee stated in his application

for writ of habeas corpus, “To be sure, the Double Jeopardy Clause protects against

being twice convicted for the same crime, and that aspect of the right can be fully

vindicated on appeal following final judgment.” [2CR520 (quoting Abney v. United

States, 431 U.S. 651, 660-61 (1977)]

      The trial court abused its discretion in allowing Appellee to take advantage of

his wrong. Point of Error One should be sustained and Count II reinstated.

      C.     Final Jeopardy has not attached to either count and there is no
             double jeopardy bar to a second trial.

      At trial, the State objected and asked the trial court to instruct the jury to return

a verdict on each count. [12RR25-26] At the writ hearing, the State analogized the

failure to return a verdict on Count II to another no verdict scenario--a hung jury, and

argued there was no double jeopardy violation in a second trial. [RR-writ at 11]


                                            9
      The Double Jeopardy Clause protects against multiple trials and multiple

punishments for the same offense. Bigon, 252 S.W.3d at 369-70. At the time

Appellee brought his application for pre-trial writ, Appellee’s pending charge for

intoxication manslaughter had not been set for a second trial. Neither multiple trials,

nor multiple punishments has occurred in this case.

      Appellee appealed his conviction for felony murder (Count I). McGuire v.

State, 01-14-00240-CR. Appellee’s appeal is still pending in this Court and the

conviction is not final.

      No verdict was rendered for intoxication manslaughter (Count II). Where no

verdict is returned, the Double Jeopardy Clause does not bar a second trial on the

same offense. See Blueford v. Arkansas, 132 S.Ct. 2044, 2050 (2012) (absent a

verdict, the foreperson’s report of an acquittal for capital murder and murder “was not

a final resolution of anything”).

      The trial court abused its discretion in dismissing Count II as a double jeopardy

violation.

      D.     The State avers that if the conviction for felony murder is
             affirmed, it will dismiss the charge for intoxication manslaughter
             upon the receipt of mandate.

      Dismissal of Count II means that if this Court were to find error and reverse or

vacate the judgment for felony murder, the State will not be able to present the

intoxication manslaughter offense on retrial. Hence, this appeal.

                                          10
      However, as shown by the trial record, the State is well aware that it may not

retain convictions for both felony murder and intoxication manslaughter. [12RR 11,

17] The State has no intention of prosecuting Appellee for intoxication murder if the

judgment for felony murder is affirmed. Therefore, if this Court were to affirm the

judgment for felony murder, the State avers it will dismiss Count II upon receipt of

the Court’s mandate.

      The State’s points of error should be sustained.




                                         11
                                     PRAYER

      The State prays that the trial court’s order granting relief be reversed and

Count II be reinstated, pending the outcome of the appeal of the judgment in Count

I in McGuire v. State, 01-14-00240-CR.

                                       Respectfully submitted,

                                       John F. Healey, Jr.
                                       SBOT# 09328300
                                       District Attorney, 268th Judicial District
                                       Fort Bend County, Texas

                                       /s/ Gail Kikawa McConnell
                                       Gail Kikawa McConnell
                                       Assistant District Attorney
                                       SBOT # 11395400
                                       301 Jackson Street, Room 101
                                       Richmond, Texas 77469
                                       (281) 341-4460 / (281) 238-3340 (fax)
                                       Gail.McConnell@fortbendcountytx.gov

                                       Counsel for the State



                      CERTIFICATE OF COMPLIANCE

      I hereby certify that the State’s Appellate Brief, in total through the prayer,
contains 3,673 words as counted by WordPerfect 6X, which is less than the 15,000
word limit for a brief.
                                             /s/ Gail Kikawa McConnell
                                             Gail Kikawa McConnell




                                         12
                           CERTIFICATE OF SERVICE

       I hereby certify that a copy of the State's appellate brief was served by certified
mail, return receipt requested # 7012 3460 0002 4097 9206 on June 2, 2015, on Ms.
Kristen Jernigan, Attorney for Appellee, 207 S. Austin Ave., Georgetown, TX
78626.

                                                /s/ Mattie Sanford
                                                Mattie Sanford




                                           13
