                           ACCEPTED
                       06-17-00165-CR
             SIXTH COURT OF APPEALS
                   TEXARKANA, TEXAS
                     12/5/2017 9:31 AM
                      DEBBIE AUTREY
                                CLERK




       FILED IN
6th COURT OF APPEALS
  TEXARKANA, TEXAS
12/5/2017 9:31:20 AM
    DEBBIE AUTREY
        Clerk
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(l)(A), the list of parties and

counsel is not required to supplement or correct the appellant's list.




                                       2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                      2

TABLE OF CONTENTS                                    3

INDEX OF AUTHORITIES                                 5

STATEMENT OF THE CASE                                7

STATEMENT REGARDING ORAL ARGUMENT                    8

ISSUES/POINTS OF ERROR IN REPLY                      9

INTRODUCTION                                        10

STATEMENT OF FACTS                                  11

SUMMARYOFTHEARGUMENT                                14

ARGUMENT AND AUTHORITIES                            15

    ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE
    WAS A SUFFICIENT "BASIS" FOR THE INCLUSION OF
    $5,767.00 IN COURT COSTS IN THE TRIAL COURT'S
    FINAL JUDGMENT OF CONVICTION.

    ISSUE/POINT OF ERROR IN REPLY NO. 2: THE
    APPELLANT WAS FOUND INDIGENT; BECAUSE THE
    RECORD DID NOT THEREAFTER DEMONSTRATE
    THAT THE TRIAL COURT FOUND A MATERIAL
    CHANGE      IN     MORGAN'S      FINANCIAL
    CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00
    SHOULD NOT BE ASSESSED AGAINST HIM;
    HOWEVER, COSTS/EXPENSES FOR AN ARTICLE 46B
    PSYCHOLOGIST WERE EXPRESSLY PROVIDED BY
    LAW AND SHOULD BE ASSESSED AGAINST THE
    APPELLANT    (MORGAN)  AS   LEGISLATIVELY-
    MANDATED COURT COSTS.

                           3
PRAYER                          23

CERTIFICATE OF COMPLIANCE       24

CERTIFICATE OF SERVICE          24




                            4
                       INDEX OF AUTHORITIES

U.S. SUPREME COURT CASES:                                  PAGE:

Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).            15

TEXAS CASES:

Allen v. State,
426 S.W.3d 253 (Tex. App.-Texarkana 2013, no pet.).       19, 21-22

Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010).                          17

Cardenas v. State,
403 S.W.3d 377 (Tex. App.-Houston [1st Dist.] 2013),
aff'd, 423 S.W.3d 396 (Tex. Crim. App. 2014).                15-16

Cates v. State,
402 S.W.3d 250 (Tex. Crim. App. 2013).                          18

Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996).                          17

Coronel v. State,
416 S.W.3d 550 (Tex. App.-Dallas 2013, pet. ref' d).            20

Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014).                      15, 17

Mayer v. State,
309 S.W.3d 552 (Tex. Crim. App. 2010).                      15, 18

Martin v. State,
405 S.W.3d 944 (Tex. App.-Texarkana 2013, no pet.).    18-19,21-22

Owen v. State,
352 S.W.3d 542 (Tex. App.-Amarillo 2011, no pet.).       16-19, 22

                                    5
Williams v. State,
332 S.W.3d 694 (Tex. App.-Amarillo 2011, pet. denied).        19,22

TEXAS CODES:

Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2016).      18

Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2016).      18

Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016).    20-22

Tex. Code Crim. Proc. Ann. art. 103 .002 (West 2006).         19, 22

Tex. Code Crim. Proc. Ann. art. 103.009(a) (West 2006).          16

Tex. Code Crim. Proc. Ann. art. 103.009(c) (West 2006).       16-17

Tex. Penal Code Ann. § 22.02(a)(b) (West 2011).                7, 11

TEXAS RULES OF EVIDENCE:

Tex. R. Evid. 902(1).                                            16

TEXASRULESOFAPPELLATEPROCEDURE:

Tex. R. App. P. 9.4(i)(3)                                        24

Tex. R. App. P. 9.5                                              24

Tex. R. App. P. 38.2                                             10

Tex. R. App. P. 38.l(e)                                           8

Tex. R. App. P. 38.2(a)(l)                                        2




                                     6
                      STATEMENT OF THE CASE

      A grand jury in Red River County returned an indictment that charged

Dywane Jermain Morgan (Morgan) with the second-degree felony offense of

aggravated assault with a deadly weapon.       See Tex. Penal Code Ann. §

22.02(a)(b) (West 2011). Subsequently, the trial court placed Morgan on

deferred community supervision for a period of ten (1 0) years and required

him to pay a fine of $500.00, court costs and other fees. See CR, pgs. 7-8.

Subsequently, the State filed several motions to proceed with an

adjudication. See CR, pgs. 22-24; RR, pgs. 4-5 .

      After a hearing, the trial judge found "[p]aragraphs 1, 2, 3, 4, 5, 8, 9

and 10 as all being true[,]" (RR, pg. 58) and paragraphs 6 and 7 to be "not

true." See RR, pg. 58. The trial judge then sentenced Morgan to twenty (20)

years confinement in the Institutional Division of the Texas Department of

Criminal Justice (TDCJ-ID). See RR, pg. 61.

      By timely filing a notice of appeal (CR, pg. 70), Morgan perfected this

appeal from the trial court's Judgment Adjudicating Guilt. See CR, pgs. 64-

65. By this appeal, Morgan brought two (2) issues/points of error.




                                      7
           STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas will waive oral argument. See Tex. R. App. P.

38.l(e), 38.2(a)(l).




                                  8
           ISSUES/POINTS OF ERROR IN REPLY

ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE WAS A
SUFFICIENT "BASIS" FOR THE INCLUSION OF $5,767.00 IN
COURT COSTS IN THE TRIAL COURT'S FINAL JUDGMENT OF
CONVICTION.

ISSUE/POINT OF ERROR IN REPLY NO. 2: THE APPELLANT
WAS FOUND INDIGENT; BECAUSE THE RECORD DID NOT
THEREAFTER DEMONSTRATE THAT THE TRIAL COURT
FOUND A MATERIAL CHANGE IN MORGAN'S FINANCIAL
CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00 SHOULD
NOT    BE    ASSESSED   AGAINST    HIM;   HOWEVER,
COSTS/EXPENSES FOR AN ARTICLE 46B PSYCHOLOGIST
WERE EXPRESSLY PROVIDED BY LAW AND SHOULD BE
ASSESSED AGAINST THE APPELLANT (MORGAN) AS
LEGISLATIVELY-MANDATED COURT COSTS.




                         9
                       CAUSE NO. 06-17-00165-CR

                                  IN THE

                          COURT OF APPEALS

      SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA


                DYWANE JERMAIN MORGAN, Appellant

                                    v.
                    THE STATE OF TEXAS, Appellee


   ON APPEAL FROM THE SIXTH JUDICIAL DISTRICT COURT;
 RED RIVER COUNTY, TEXAS; TRIAL COURT CAUSE NO. CR02253;
          HONORABLE R. WESLEY TIDWELL, JUDGE



                  APPELLEE'S BRIEF

TO HONORABLE SIXTH COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through the County and

District Attorney's Office of Red River County, files its Appellee's Brief

under Rule 38.2 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Dywane Jermain Morgan will be referred

to as "Morgan" or "the appellant" and the State of Texas as "the State" or

"appellee."



                                    10
                        STATEMENT OF FACTS

      Factual Background.

      On September 25, 2014, a grand jury in Red River County returned an

original indictment that charged Morgan with the second-degree felony

offense of aggravated assault with a deadly weapon. See CR, pgs. 5-6; RR,

pg. 4. See also Tex. Penal Code Ann. § 22.02(a)(b) (West 2011).

      On January 12, 2015 (RR, pg. 13), the trial court signed an order of

deferred   adjudication that placed Morgan on deferred            community

supervision for a period of ten (1 0) years and required him to pay a fine of

$500.00, court costs and other fees.      See CR, pgs. 7-8. On that day of

January 12t\ Miranda Dean, who was in the trial court and employed by the

adult probation department, provided Morgan with a copy of the conditions

of probation. See RR, pg. 22.

      In December of 2015, the State filed a motion to proceed with

adjudication. See CR, pgs. 11-13. Subsequently, the State filed amended

motions to proceed with an adjudication, including a motion in March of

2016. See CR, pgs. 22-24; RR, pgs. 4-5.

      Hearing on the State's Amended Motion to Adjudicate.

      On July 27, 2017, the trial court proceeded with a hearing on the

State's motion to proceed with an adjudication. See RR, pgs. 4-5. When

                                     11
arraigned on that motion, the trial judge entered pleas of "not true" to the

paragraphs. See RR, pgs. 6-12.

      After presenting two (2) witnesses (Miranda Dean and Trooper

Brandon Dennison) during the hearing, the State rested. See RR, pg. 44.

After separate recesses, Morgan testified during the July 27th hearing and

acknowledged, "I was on probation." See RR, pg. 47.

      At the conclusion of the hearing, the trial judge found "[p]aragraphs 1,

2, 3, 4, 5, 8, 9 and 10 as all being true." See RR, pg. 58. However, the trial

judge found paragraphs 6 and 7 to be "not true." See RR, pg. 58. The trial

judge sentenced Morgan to twenty (20) years confinement in the

Institutional Division of the Texas Department of Criminal Justice (TDCJ-

ID). See RR, pg. 61.

      On July 27th, the trial court signed its Judgment Adjudicating Guilt.

See CR, pgs. 64-65 . On August 10, 2017, Morgan filed his notice of appeal.

See CR, pg. 70. On September 11th, the trial court signed its certification of

the defendant's right of appeal. See CR, pg. 75.

      Proceedings in this Court of Appeals.

      On or about August 23, 2017, Morgan filed his notice of appeal in this

Court. On or about September 21 sr, the District Clerk of Red River filed the

Clerk's Record. The official court reporter filed the Reporter's Record on or

                                      12
about October 2, 2017.

      With the appellate record filed, Morgan filed a motion to extend time

to file the appellant's brief on or about October 201h, which this Court

granted. As the appellant, Morgan filed his brief on November 3, 2017. The

State will be filing its brief before the deadline of December 4, 2017.




                                      13
                    SUMMARY OF THE ARGUMENT

      By this appeal, the appellant (Morgan) did not challenge the discretion

of the trial court in revoking his community supervision, nor did he

challenge the assessment of punishment at confinement for twenty (20)

years in the Institutional Division of the Texas Department of Criminal

Justice. Rather, his two (2) issues/points of error challenged the sufficiency

of the evidence supporting ( 1) the court costs in the total amount of

$5,767.00 and (2) the assessment of the amount for "COURT APPOINTED

ATTORNEY" in the bill of costs. See CR, pg. 68.

      In summary, (1) the appellant's first issue/point of error should be

overruled because there was a sufficient "basis" for court costs of $5,767.00

in the trial court's Judgment Adjudicating Guilt (CR, pg. 64); and (2)

Morgan was found indigent, and his financial status did not change-so, the

amount of $2,300.00 in attorney's fees could not be assessed against him.

However, the costs of $2,925.00 for an article 46B psychologist were (a)

expressly provided by law and (b) legislatively-mandated by statute under

articles 103.002 and 46B.027 of the Texas Code of Criminal Procedure,

respectively.   Accordingly, the Judgment Adjudicating Guilt should be

modified to delete the amount of $2,300.00 in attorney's fees only, and

affirmed in all other respects.

                                      14
                    ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE WAS A
SUFFICIENT "BASIS" FOR THE INCLUSION OF $5,767.00 IN
COURT COSTS IN THE TRIAL COURT'S FINAL JUDGMENT OF
CONVICTION.

       With his first issue/point of error, Morgan challenged the sufficiency

ofthe evidence to support the inclusion of$5,767.00 in costs of court in the

trial court's judgment. See Appellant's Brief, pgs. 3, 8, 12-17. However, the

appellant's first issue/point of error, as briefed, applied an erroneous

standard of review. See Appellant's Brief, pg. 13 (citing Jackson v. Virginia,

443 U.S. 307,319,99 S. Ct. 2781,61 L.Ed.2d 560 (1979)).

     A.     Standard of Appellate Review:               Non-Applicability of
Traditional, Evidentiary-Sufficiency Principles.

      This Court must review the assessment of court costs on appeal to

determine if there is a basis for the cost, not to determine if there was

sufficient evidence offered at trial to prove each cost, and traditional Jackson

evidentiary-sufficiency principles do not apply. See Johnson v. State, 423

S.W.3d 385, 390 (Tex. Crim. App. 2014). Further, this Court must review

the sufficiency of the evidence supporting the award of costs in the light

most favorable to the trial court's judgment. See Mayer v. State, 309 S.W.3d

552, 557 (2010) ("Sufficiency of the evidence is measured by viewing all of

the record evidence in the light most favorable to the verdict."); Cardenas v.

                                       15
State, 403 S.W.3d 377, 385 (Tex. App.-Houston [1st Dist.] 2013), aff'd, 423

S.W.3d 396 (Tex. Crim. App. 2014).

      Article 103 .009(c) of the Texas Code of Criminal Procedure provided

that "[a] statement of an item of cost in a fee record is prima facie evidence

of the correctness of the statement." See Tex. Code Crim. Pro c. Ann. art.

103.009(c) (West 2006). Under article 103.009, a clerk of a court is required

to keep a fee record, and a statement of an item therein is prima facie

evidence ofthe correctness of the statement. See Owen v. State, 352 S.W.3d

542, 547 (Tex. App.- Amarillo 2011 , no pet.) (citing Tex. Code Crim. Proc.

Ann. art. 103.009(a) and (c)).

      B.     Application of Law to the Present Case.

      Here, the Clerk's Record included a bill of costs, which had a total of

$6,267 .00. See CR, pg. 68. The Judgment Adjudicating Guilt had two (2)

columns: (1) a column for the fine of $500.00 and (2) a column for the court

costs of $5,767.00. See CR, pg. 64. When subtracting the fine of $500.00

from $6,267 .00, as evidenced by the bill of costs-a public document under

seal, see Tex. R. Evid. 902(1)-the trial court's final judgment accurately

reflected the court costs in the total amount of$5,767.00. See CR, pg. 68.

      As proved by the bill of costs, along with the statutory sub-section

that provided prima facie evidence of the correctness of the statement, see

                                      16
Tex. Code Crim. Proc. Ann. art. 103.009(c) (West 2006); Owen, 352 S.W.3d

at 547, there was a sufficient "basis" for court costs of $5,767.00 in the trial

court's final judgment. Because there was a sufficient evidentiary basis for

court costs of $5,767.00, the appellant's (Morgan's) first issue/point of error,

as briefed, should be overruled. See Johnson, 423 S.W.3d at 390.

          Otherwise, the appellant's (Morgan's) first issue/point of error would

require this Court to impermissibly determine if there was sufficient

evidence to prove each cost. See id; Appellant's Brief, pgs. 14-16. Stated

differently, the appellant's (Morgan's) first issue/point of error would require

this Court to erroneously engage in a factual-sufficiency analysis as to the

evidence to prove each cost. See Brooks v. State, 323 S.W.3d 893, 905 (Tex.

Crim. App. 201 0) ("Retaining any kind of factual-sufficiency standard in

criminal cases would, therefore, still make it necessary for this Court to

overrule Clewis 1 and abandon its requirement .. .").




1
    Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
                                             17
ISSUE/POINT OF ERROR IN REPLY NO. 2: THE APPELLANT
WAS FOUND INDIGENT; BECAUSE THE RECORD DID NOT
THEREAFTER DEMONSTRATE THAT THE TRIAL COURT
FOUND A MATERIAL CHANGE IN MORGAN'S FINANCIAL
CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00 SHOULD
NOT    BE    ASSESSED   AGAINST    HIM;   HOWEVER,
COSTS/EXPENSES FOR AN ARTICLE 46B PSYCHOLOGIST
WERE EXPRESSLY PROVIDED BY LAW AND SHOULD BE
ASSESSED AGAINST THE APPELLANT (MORGAN) AS
LEGISLATIVELY-MANDATED COURT COSTS.

     A.    Standard of Appellate Review: Indigency and Assessment
of Court Costs.

      A trial court has authority to order a defendant to pay the attorney's

fees of appointed counsel if it determines that the defendant has the

resources "to offset in part or in whole the costs of legal services

provided[.]" See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp.

2016); Martin v. State, 405 S.W.3d 944, 946 (Tex. App.-Texarkana 2013,

no pet.). A "defendant who is determined by the court to be indigent is

presumed to remain indigent for the remainder of the proceedings in the case

unless a material change in the defendant's financial circumstances occurs."

See Cates v. State, 402 S.W.3d 250,251 (Tex. Crim. App. 2013) (citing Tex.

Code Crim. Proc. Ann. art. 26.04(p)). See also Mayer, 309 S.W.3d at 557;

Martin, 405 S.W.3d at 946-47.

      A defendant's ability to pay 1s not relevant with respect to

legislatively-mandated court costs. See Martin, 405 S.W.3d at 947; Owen,

                                     18
352 S.W.3d at 546; Williams v. State, 332 S.W.3d 694, 700 (Tex. App.-

Amarillo 2011, pet. denied)).      "[A] trial court can order an indigent

defendant to pay legislatively mandated court costs provided payment is not

demanded before the trial court proceedings have concluded." See Martin,

405 S.W.3d at 947 (citing Allen v. State, 426 S.W.3d 253 , 259 (Tex. App.-

Texarkana 2013, no pet.)).

      B.    Application of the Standard of Review to the Bill of Costs in
the Present Case.

      1.     Court-Appointed Attorney's Fees Should Not Be Assessed.

      With his second issue/point of error, Morgan alleged that there was

insufficient evidence of his ability to pay assessed costs of court, including

attorney's fees. See Appellant's Brief, pgs. 3, 8 18-22. Here, Morgan was

found indigent. See CR, pgs. 19-20. Because the record did not thereafter

demonstrate that the trial court found a material change in the defendant's

financial circumstances, as in Martin, attorney's fees should not be assessed

against him. See Martin, 405 S.W.3d at 947. Therefore, the State will

concede error as to the attorney's fees in the amount of $2,300.00 only. !d.

     2.   The Costs/Expenses for Bryan E. Smith, PSY. D. (Smith)
Were Expressly Provided by Law, Which Should Have Been Assessed
Against Morgan as Legislatively-Mandated Court Costs.

      Article 103.002 provides that "[a]n officer may not impose a cost for a

service not performed or for a service for which a cost is not expressly
                                      19
provided by law." See Tex. Code Crim. Proc. Ann. art. 103 .002 (West 2006).

"Costs are defined and mandated by statute; a bill of costs is a governmental

record which documents those costs that have been assessed based on

various factors including the crime for which the defendant is convicted, the

procedural history of the defendant's case, and costs incurred in trying and

convicting the defendant." See Coronel v. State, 416 S.W.3d 550, 556 (Tex.

App.-Dallas 2013 , pet. ref' d).

      As pertinent here, the costs/expenses for Smith, which were included

in the bill of costs by the District Clerk of Red River County, were "for a

service for which a cost [was] expressly provided by law" under article

103.002 of the Texas Code of Criminal Procedure, and were mandated by

statute under article 46B.027 of the Texas Code of Criminal Procedure. See

Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016).

      On or about April 7, 2016, Morgan's trial counsel filed a sworn

"Motion Suggesting Incompetency and Request for Examination" (CR, pgs.

25-27), and that motion was specifically filed under the authority of article

46B.003 ofthe Texas Code of Criminal Procedure. See CR, pg. 25 . On the

same day of April 7th, the trial court signed an Order for Examination

Regarding Incompetency. See CR, pgs. 28-29. By that order, the trial court

directed Smith to examine Morgan to determine if he was incompetent to

                                     20
stand trial in this cause, as provided by Article 46B of the Texas Code of

Criminal Procedure. See CR, pg. 28.

      As evidenced by the expert report (CR, pgs. 30-35)-that was filed of

record on May 16, 20 16-Smith, a licensed psychologist under article

46B.022 of the Texas Code of Criminal Procedure, examined Morgan on

April 28, 2016. See CR, pg. 30. In this report, Smith opined that Morgan

was not competent to stand trial at that time. See CR, pg. 34. On the same

day of May 16th, Smith submitted a billing statement, which the trial judge

signed. See CR, pg. 36.

      Subsequently, Smith submitted, and the trial judge approved by his

signature, a billing statement on June 5, 2017 (CR, pg. 51) followed by one

on June 27, 2017. See CR, pg. 59. As submitted and approved by the trial

judge, these three (3) billing statements- which, when added, totaled

$2,925 .00-represented costs/expenses that the Legislature specifically

approved under article 46B.027 of the Texas Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016). Stated

differently, Smith's costs/expenses were legislatively mandated under article

46B .027 of the Texas Code of Criminal Procedure. See id.

      Once the trial court's revocation-proceedings were concluded, see

Martin, 405 S.W.3d at 947 and Allen, 426 S.W.3d at 259, the District Clerk

                                      21
of Red River County included the total amount of $2,925.00 in the column

for "Court Appointed Attorney," as evidenced by the bill of costs. See CR,

pg. 68. Because Smith's costs/expenses (1) were "for a service for which a

cost [was] expressly provided by law" under article 103.002 of the Code of

Criminal Procedure, and (2) were mandated by statute under article 46B.027

of the Code of Criminal Procedure, the costs/expenses were properly

assessed against Morgan because his ability to pay was not relevant with

respect to legislatively-mandated court costs. See Martin, 405 S.W.3d at

947; Owen, 352 S.W.3d at 546; Williams, 332 S.W.3d at 700.

      By its Judgment Adjudicating Guilt, the trial court could order

Morgan to pay legislatively-mandated court costs because the bill of costs

was not prepared until August 1, 2017 (CR, pg. 68) and, thus, payment was

not demanded before the trial court's revocation proceedings had concluded.

See Martin, 405 S.W.3d at 947; Allen, 426 S.W.3d at 259. Therefore, the

appellant's second issue/point of error should be sustained in part (as to

$2,300.00 in attorney's fees) and overruled in part (as to $2,925 .00 in

legislatively-mandated court costs under article 46B.027 of the Texas Code

of Criminal Procedure).




                                    22
                                  PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered cause without

oral argument, this Court affirm the trial court's final, Judgment

Adjudicating Guilt; modify court costs, if necessary; and for such other and

further relief, both at law and in equity, to which it may be justly and legally

entitled.

                          Respectfully submitted,

                          Val J. Varley, County & District Attorney
                          Red River County Courthouse
                          400 N. Walnut
                          Clarksville, TX 75426
                          (903) 427-2009
                          (903) 427-5316 (fax)


                                 By: /sNal Varley
                                 Val J. Varley, County & District Attorney
                                 State Bar No. 20496580
                                 valvarley@valornet.com

                          ATTORNEYS FOR THE STATE OF TEXAS




                                      23
                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the "Appellee's (State's) Brief" was a computer-generated document and

contained 3679 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                               /s/ Val Varley
                               Val J. Varley, County & District Attorney
                               valvarley@valomet.com

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the Appellee's Brief has been served on the 5TH day of December,

2017 upon the following:

Troy Hornsby
Miller, James, Miller & Hornsby, L.L.P
1725 Galleria Oaks Drive
Texarkana, TX 75503
troy.Hornsby@gmail.com



                               /s/ Val Varley
                               Val J. Varley, County & District Attorney
                               valvarley@valomet.com




                                    24
