                                                                            ACCEPTED
                                                                         06-14-00096-cv
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                   6/26/2015 9:47:35 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK

                 IN THE COURT OF APPEALS

                 SIXTH DISTRICT OF TEXAS             FILED IN
                                              6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
                    TEXARICANA, TEXAS         6/29/2015 8:34:00 AM
                                                  DEBBIE AUTREY
                                                      Clerk

MICHAEL ANDERSON,           §
      APPELLANT             §
                            §
VS.                         §    APPEAL NO. 06-14-00096-CV
                            §
THOMAS SNODDY,              §
     APPELLEE               §


                    APPELLEE'S BRIEF


     APPEAL FROM THE 115th JUDICIAL DISTRICT COURT,
    IN AND FOR UPSHUR COUNTY, TEXAS, CAUSE NO. 548-12
THE HONORABLE LAUREN PARISH, DISTRICT JUDGE, PRESIDING



                                L. Charles van Cleef
                                State Bar No. 00786305

                                P.O. Box 2432
                                Longview, Texas 75606-2432
                                903-248-8244 Telephone
                                903-248-8249 Facsimile
                                charles(&,vancleef.pro

                                COUNSEL FOR APPELLEE
      I. TABLE OF CONTENTS. TEX. R. APP. P. 38.1(B)
 I.    TABLE OF CONTENTS. Tex. R. App. P. 38.1(b)                  -2-
 II. IDENTITY OF PARTIES AND COUNSEL. Tex. R. APp. P. 38.1(a)      -4-
 III. TABLE OF AUTHORITIES. Tex. R. App. P. 38.1(c)                -5-
 IV. STATEMENT OF THE CASE. Tex. R. App. P. 38.1(d)                -6-
V. STATEMENT REGARDING ORAL ARGUMENT                              -7-
VI. ISSUES PRESENTED                                              -7-
VII. STATEMENT OF FACTS                                           -7-
  A.    Procedural History                                        -7
  B.    Factual Presentation                                      -8
  A.    Gary Roberts                                              -9
  B.   Michael Anderson                                           -9
  C.   Harold Stein                                             - 15
  D.   Thomas Snoddy (Appellee)                                 - 16
  E.   Barry Lovely                                             - 20
  F. Jonathan Wharton                                           - 20
  G.   Michael Anderson (Second time)                           - 20
  H.   Miguel Larson                                            - 20
  I. George Meisenheimer                                        - 21
  J. Final Matters                                              - 21
VIII.  IMPEACHMENT                                              - 21
  A.   Summary of the Argument                                  - 21
  A.   Argument                                                 - 22
  a. Harold Stein Impeachment                                   - 23
  b. Harold Stein Again                                         - 24
  c. Instructions                                               - 25
  d. Optional Completeness                                      - 25
  e. What is a Transfer                                         - 26
  f. Another Impeachment                                        - 26
  g. The Judge Doesn't Understand Impeachment                   - 26
  B.   Conclusion                                               - 28 -
IX. WEIGHT OF THE EVIDENCE                                      - 29 -
  C.   Summary of the Argument                                  - 29 -
  A.   Argument                                                 - 29 -
X. Judgment Nisi                                                - 30 -
  B.   Summary of the Argument                                  - 30 -
  A.   Argument                                                 - 31 -
XI. CROSS EXAMINATION ON THE LAW                                - 32 -
  B.     Summary of the Argument                                - 32 -
  A.     Argument                                               - 32 -


                                         2
XII. CHARACTER BOLSTERING              - 35 -
  B.    Summary of the Argument        - 35 -
  A.    Argument                       - 35 -
XIII.   CUMULATIVE ERROR               - 37 -
  B.    Summary of the Argument        - 37 -
  A.    Argument                       - 37 -
XIV.    PRAYER                         - 40 -
XV. CERTIFICATE OF SERVICE             - 41 -
XVI.    CERTIFICATE OF COMPLIANCE      - 41 -
XVII.   Records Exceprts               - 42 -




                                  -3
II. IDENTITY OF PARTIES AND COUNSEL. TEX. R. APP. P.
      38.1(A)

   Appellant's statement is correct. TEX. R. APP. P. 38.2(a)(1)(A).




                                     4
 III. TABLE OF AUTHORITIES. TEX. R. APP. P. 38.1(C)
Cases
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999) (en banc)                      - 37 -
Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)                                         - 28 -
City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995)                              - 29 -
Cortez v. HCCI—San Antonio, Inc., 131 S.W.3d 113, 119 (Tex.App.-San Antonio 2004), affd,
   159 S.W.3d 87 (Tex.2005)                                                                  - 28 -
Fibreboard Corp. v. Pool, 813 S.W.2d 658, 695 (Tex.App.—Texarkana 1991, writ denied) - 38 -
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000)                         - 28 -
McGary v. State, 750 S.W.2d 782, 786 & n.3 (Tex. Crim. App. 1988)                           - 23 -
Ruth v. State, 167 S.W.3d 560, 566 (Tex.App.—Houston [14th Dist.] 2005, pet. refd)          - 23 -
State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.7 (Tex. 1989)                            - 28 -
Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000)                                - 29 -
United Way of San Antonio, Inc. v. Helping Hands Lifeline Found., Inc., 949 S.W.2d 707, 713
  (Tex.App.-San Antonio 1997, writ denied)                                                  - 34 -
Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex.1995)                           - 29 -

Rules
TEx. R. APP. P. 38.1(g)                                                                      -7
TEX. R. APP. P. 38.2(a)(1)(A)                                                                -4
TEX. R. APP. P. 38.2(a)(1)(B)                                                          - 6 -, - 7
TEX. R. APP. P. 44.1(a)(1)                                                           - 28 -, - 37
TEX. R. EvID. 405(a)(1)                                                                     - 37
TEX. R. EVJD. 613(a)                                                                        - 22
TEX. R. EvID. 701                                                                           - 34




                                             5
                         IN THE COURT OF APPEALS

                          SIXTH DISTRICT OF TEXAS

                              TEXARKANA, TEXAS


MICHAEL ANDERSON,
      APPELLANT

VS.                                               APPEAL NO. 06-14-00096-CV

THOMAS SNODDY,
     APPELLEE


                               APPELLEE'S BRIEF


TO THE HONORABLE JUSTICES OF SAID COURT:

      Comes now L. CHARLES VAN CLEEF, counsel for THOMAS SNODDY,

Appellee herein, and files this, his "Appellee's Brief'.

IV. STATEMENT OF THE CASE. TEX. R. APP. P. 38.1(D)

      Appellee is not dissatisfied with Appellant's Statement of the Case. TEX. R.

APP. P. 38.2(a)(1)(B).




                                        -6
  V. STATEMENT REGARDING ORAL ARGUMENT

       Oral argument would not assist the resolution of this Appeal.

 VI.   ISSUES PRESENTED

       Appellee will respond to Appellant's Issues as stated in Appellee's Brief,

seriatim. TEX. R. APP. P. 38.2(a)(1)(B).4

VII.   STATEMENT OF FACTS

       Appellant's Statement of Facts essentially restates Appellant's contentions

in the trial of this case, which were rejected by the jury, and contains argument,

and, therefore, fails to comport with TEX. R. APP. P. 38.1(g). Accordingly,

Appellee offers the following Statement of Facts. TEx. R. APP. P. 38.2(a)(2)(B).

       A. PROCEDURAL HISTORY

       This case began with the August 31, 2012, "Original Petition and Request

for Disclosure" wherein the appellant claimed that he had been in a bail bond

partnership with the appellee and, when the partnership ended, that the appellee

tortuously interfered with contracts and future business relationships by diverting

the telephone number. CR (vol. 1) 1-8. A First Amended Petition was filed on

January 14, 2013, claiming that the appellant had recently discovered that the

appellee never filed any financial statements with the Sheriff, and "that he had

contributed nothing to the partnership," thereby adding breach of contract and

fraud claims against the appellee. CR (vol. 1) 16-17. The March 7, 2013, Second

Amended Petition added a claim that the appellee had something to do with


                                        7
another bondsman impersonating the appellant, and thus added a claim for

vicarious liability for that bondsman's "attempted fraud." CR (vol. 1) 23-24. The

Third Amended Petition, filed October 22, 2013, reconstituted the claim regarding

another bondsman as a "civil conspiracy". CR (vol. 1) 29. The final, fourth,

amended petition further alleged a breach of fiduciary duty. CR (vol. 1) 35.

      The parties designated numerous witnesses and exhibits and filed motions in

limine in preparation for trial. Jury selection occurred on October 13, 2014. RR

(vol. 2). Trial began on October 21, 2014 and concluded on October 23, 2014,

with a finding against Plaintiff as to all issues. RR (vols. 3, 4, and 5); CR (vol. 1)

65-78 (jury charge and answers, signed by judge).

       B. FACTUAL PRESENTATION

      This case concerned the dissolution of association between Appellant and

Appellee in the bail bond business. Appellant made numerous claims, outlined

above. The gravamen of the claims was the Appellant claimed that Appellee

entered into a partnership with him to run a small bonding office in Gilmer, Upshur

County, Texas. Appellee, who had the Gilmer office, its telephone number, its

furniture and advertising, and its utilities long prior to Appellant coming to his

attention, and approximately 15 years' experience in the bonding business in

several places including Longview, Texas, claimed that there was no partnership




                                         8
and that Appellee's allegations of promises made and broken were untrue. Several

witnesses testified.

       A. GARY ROBERTS

       The first witness was Gary Roberts. RR3 at 29, et seq. Mr. Roberts testified

that he had spoken with the appellee about conducting bonding business in Upshur

County as a partnership, "more or less." RR3 at 30-31. He backed out of the

arrangement in favor of the appellant, who had more time to devote. Ibid. at 31.

On cross-examination, Mr. Roberts admitted that he never did enter into an

agreement or write a single bond; he was not aware of the appellant having any

prior experience writing bonds (he had known the appellant for several years in

another State). Ibid. at 32-33.

       B. MICHAEL ANDERSON

      The second witness was the appellant, Michael Anderson. RR3 at 36, et seq.

Mr. Anderson testified that he was in Tennessee when he received a call from Mr.

Roberts about a job offer to run a bail bond office. Ibid. at 37. He testified that he

met the appellee and that the appellee stated that he had a bonding office in Upshur

County that was not making money and that he wanted to show someone how the

process worked. He claims that he began writing bonds on January 1 (2010). Ibid.

at 38. He claimed that the appellee said that he owned the business and did not

have time to run it, so he was considering shutting the doors. Ibid. at 39.



                                          9
 Appellant claimed that since the appellee owned the business he was the "financial

 backer," meaning that the appellee satisfied the Sheriff that there was sufficient

 collateral for bonds. Ibid. at 41-42. Appellant testified that he heard from an

 individual named "Harold," in early 2011 that caused him to be suspicious. Ibid. at

 43. He asked the appellant about the call from "Harold" and was told that it was a

misunderstanding. Ibid. at 44. At some point, the appellant requested a copy of

the "folder" for the bonding business that was on file with the Sheriff's office and,

the appellant claimed, there were no "financials" in the folder. Ibid. at 48.

Immediately contradicting himself, the appellant identified a "financial verification

packet" that was produced, to him by the Sheriff, in the folder indicating that the

ultimate surety was "Gerald Todd" from Collin County, dated January, 2003. Ibid.

at 49.1 The appellant testified that he believed that he was personally liable on the

bonds (approximately million dollars' worth). Appellant's trial counsel then

produced text messages between the appellant and the appellee. Ibid. at 53

(identified as Exhibit 2). The appellant's trial counsel had him read/interpret the

text messages, which indicated that "Harold" was going to Gilmer (presumably,

the office) and that the appellee needed to meet with the appellant regarding some

things that he had sent in the mail; the balance of the text messages were to the


'Appellant later admitted that it was a financial statement but claimed it wasn't "valid" because the Sheriff should
have required a more recent one. RR3 at 121-127. Appellant did not believe the surety, Gerald Todd, exists because
he had never met him. Ibid. at 125-126. The transcript reveals the extraordinary questioning required to untangle
Appellant's testimony on these subjects.


                                                       -10-
effect that the arrangement between the appellant and the appellee was being ended

by the appellant. Ibid. at 55. He read the appellee's message stating "okay, then

we need to get files and the money you owe and move on." Ibid. at 55. The

appellee asked the appellant to call and stated that if he wanted to go that was fine,

there would be no hard feelings. Ibid. The appellant testified that the appellee

stopped paying or cut off the utilities to his office. Ibid. at 56. The appellant

further testified about the phone line being transferred away. Ibid. at 63. The

appellant then testified about an alleged incident in which someone called to speak

with him and another bondsman (not the appellee) answered the phone. Ibid. at

66-68. Finally, the appellee testified some regarding money matters in the office

and how his share was calculated. Ibid. at 69-78. However, when the appellant

attempted to introduce an exhibit purporting to summarize financial documents

that were in evidence, the appellant, the undersigned took him on voir dire and

establish that he had no expertise the qualified him to do so. Ibid. at 79-81.

      Cross-examination was lengthy and began with a discussion of how the

bonding business works, including the fact that, as a bondsman, the appellant

would have contact information for the principals and their families. Ibid. at 83-

84. He admitted that he had no prior experience as a bondsman before working

with the appellee. Ibid. at 84-85. He admitted that the office in Gilmer, Upshur

County, Texas was already in place before he met Mr. Snoddy and that the office
had an established telephone number. Ibid. at 85-86. He knew that the phone line

belonged to the appellee and that the number was already the subject of paid

advertising. Ibid. at 86. He testified that there was no written partnership

agreement and that he did not believe that he and the appellee would even have to

have their heads together in order for there to be a partnership, then admitted that

there was no partnership simply because he thought so. Ibid. at 88. Ultimately, he

agreed that there would have to have been a meeting of the minds on the subject of

a partnership. Ibid. at 89. He was aware that, when he met the appellee, the

appellee had numerous businesses and extensive experience in the bonding

business. Ibid. at 89. He was aware that the appellee had invested in advertising,

and office, and "infrastructure" at that location. Ibid. He never filed a partnership

tax return even though he had his own accountant. Ibid. at 90. Though he had an

employee or employees he never filed W2's or 1099's regarding their pay. Ibid. at

90. When he filed a DBA form with the county during his time in association with

the appellee, he filed it as the "proprietor." Ibid. at 91. He admitted that the

appellee told him that he would be taught the business, and the appellee did so.

Ibid. at 91-92. The software and checks and balances for the business were put in

place by the appellee. Ibid. at 92. He acknowledged that he was not the first

person to work in that office, that the office was not set up for him, and he was

unaware of any person who had ever been or claim to be a partner with the



                                       - 12 -
appellee. Ibid. at 93-94. The first day he appeared at work the office was in place,

had electricity and the telephone, and a system for tracking bonds. Ibid. at 94.

When asked why he was suing the appellee when the appellee had the same

telephone number for many years, the appellant responded "because I was there in

the business, my name was, was the business." Ibid. at 96. He acknowledged that

he never paid the appellee for the telephone number. Ibid. at 98. He

acknowledged that hundreds of pages of telephone records ordered by the

appellant's attorney for the trial indicated that the telephone number had belonged

to "fast action bail bonds" (owned by the appellee) for years prior to the

appellant's arrival. Ibid. at 98-99. Harkening back to his testimony regarding the

contact information for bond principals, the appellant ultimately admitted that he

could have used another phone to contact those persons regarding court (and failed

to establish that he could not contact anyone in particular) after the Fast Action

phone number was forwarded elsewhere. Ibid. at 100-101. He further admitted

that payments he received on bonds following the "breakup" of the "partnership"

were neither paid nor accounted to the appellee. Ibid. at 102. He acknowledged

that the electric bill was in the appellee's name. He admitted that the sheriff was

satisfied with whatever financial information was on file with that office and that

he was never refused the right to write a bond. Ibid. at 107-109.




                                        -13-
        Regarding the financial statement on file with the sheriff, the appellant

believed that the sheriff was not following the law, and acknowledged that the

financial statement on file, which he characterized as being for "Snoddy Bail

Bonds," was actually just faxed from Snoddy Bail Bonds (it had a fax cover page

with that business letterhead; Appellant's prior testimony was "wrong"). Ibid.at

115-121. The appellant evidenced his confusion regarding "Harold" (who had

called him) and "Gerald" Todd, who was the surety. This was cleared up during

trial. Ibid.at 116-121.

        Appellant testified about how he was paid, Ibid.at 138, and claimed that he

did not believe that appellee every paid the surety because he did not see the

checks. Ibid. at 140. He didn't believe there were any checks because he never

saw them. Ibid.at 141.

        Appellant claimed that Appellee prevented him from checking the financial

information in the Sheriff's Office while they were associated, even though

Appellee was in another city and Appellant is a "grown man"; he ultimately

admitted he could have just walked into the Sheriffs Office and viewed it anytime,

but he did not do so until 2012, even though he had been "concerned" since 2010.

Ibid.at 162.

        The balance of Appellant's testimony adds little to the background of this

case.



                                       - 14 -
        C. HAROLD STEIN

       The next witness was Harold Stein, who was called on direct examination.

RR3 sat 215. Mr. Stein is the "Harold" mentioned above, has approximately 40

years' experience in the bonding business, and is a bond underwriter. Ibid. at 216;

Ibid. at 229. He explained that he was the broker for the bonding operation and

acted on behalf of the surety, Gerald Todd. Ibid. at 220-221. He explained that the

appellant was protected from bond forfeitures if he just signed the bonds correctly

(as agent). Ibid. at 227; Ibid. at 279. Mr. Stein had also suffered a head injury that

affected his ability to recall, which was reported during his deposition, and was

deprived the right to review his deposition for changes. Ibid. at 229-231. He

explained that in the hierarchy, the appellant was a "producer," that he (Mr. Stein)

was a broker, that the appellee had many duties who ensured that the producer was

doing things correctly and reported to the broker, and, as noted above, that Mr.

Todd was the surety. Ibid. at 236-242; Ibid. at 255-257. The appellee was a

"buffer" between the producing operation and the suretyship. Ibid. at 242. This

was all explained on a chart for the jury (demonstrative). He explained that if the

appellee ever identified him as the surety that the correct term would have been

"surety representative" and that it was an understandable mistake. Ibid. at 243-

245; Ibid. at 283-284. The appellee had, at one time, been in the "producer"

position. Ibid. at 244-245. He explained how he was paid, which was through



                                       - 15 -
 payments to the surety; meaning that if he was being paid the surety was also being

 paid. Ibid. at 248-249; Ibid. at 276-278.2 On redirect and recross examination, Mr.

 Stein cleared up another confusion on the appellant's part about the name "Surety

 Company," which, though descriptive of the purpose of the company was also the

proper name of the company. Ibid. at 259-260. He cleared up that, under the law,

as long as the sheriff was satisfied as to the soundness of the surety for a particular

bond, the bond was approved and business operated is normal. Ibid. at 267-268;

Ibid. at 277-278; Ibid. at 280-282. There were several attempts by the appellant to

impeach Mr. Stein, the appellant's own witness, none of which were successful.

          D. THOMAS SNODDY (APPELLEE)

         Next, the appellant called the appellee as an adverse witness. Ibid. at 286.

The appellee cleared up that he never offered Gary Roberts a "partnership" and

that the appellant was simply lying when he testified that the appellee offered him

a partnership. RR3 at 291-292. He was asked about the profit breakdown and

what he did for the operation. Ibid. at 291-293. Appellant continued to evidence

confusion over what a "surety" is. Ibid. at 294-295. The appellant attempted to

obtain legal conclusions from the appellee regarding ownership of the telephone

line and the definition of a partnership. Ibid. at 298-299. The appellee clarified

that he was a "consultant" for the operation and his duties. Ibid. at 300-305; Ibid.

2 Elsewhere, appellant explained that he received 50% of the monthly profit, that 50% went to the appellee and 35%
of the appellee's payment went to the surety, while expressing doubts that the surety was ever paid. Mr. Stein
cleared that up.


                                                      -16-
    at 321-322 (examples). He corrected appellant's misunderstanding that 50% +50%

    -35% of the second 50% did not add up to 135%. Ibid. at 302-304. He clarified

    that the appellant was focusing on a DBA form for a different business in his

    questioning. Ibid. at 312-313. He testified that he was dealing with Mr. Stein for

    the surety and that the business ran smoothly. Ibid. at 327-330.

             The following day, October 22, 2014, court began with the appellee on the

    stand. RR4. He clarified that he allowed the appellant to use his well-established

    phone line. RR4 at 11-12. He testified that he gave the appellant ample time to get

    his own telephone number when the appellant decided to leave his association with

the appellee. Ibid. at 18-19. The appellee testified that the appellant should have

known that if he wanted to disassociate he would need to get his own electric,

water, and telephone accounts. Ibid. at 19. He gave the appellant three or four

weeks to get this done. Ibid. at 20. The appellant then transferred the phone line,

at least momentarily, to another bondsman so they would continue to receive

bonding business. Ibid. at 21-22. After numerous failed attempts at impeachment,

the court thoroughly explained the process to the appellant's attorney in another

failed bid that violated the appellant's own motion in limine and opened the door

for an optional completeness reading of the rest of the passage. Ibid. at 22-29.3 He




3   The Court tried explaining it again, later, to no avail. Ibid. at 110-112.


                                                            -17-
 clarified that the appellant worked for himself and was responsible for his own

taxes, employees, etc. Ibid. at 35-36.

       On cross-examination the appellee testified that he been in business for

approximately 15 or 20 years, was a licensed bondsman (in bail bond board

counties), had money invested in advertising his telephone numbers, obtained

utilities and furniture for his offices, described how he ended up with an interest in

Upshur County, and how he came in contact with the appellant. RR4 at 55-58. He

explained that he had never, in the course of his entire career in bonding, submitted

a personal financial statement as opposed to a surety statement in a non-bail bond

board County as Appellant seemed to expect. Ibid. at 60-61. He had no intention

of entering into a partnership with either Mr. Roberts or the appellant, never agreed

to do so, and described exactly what the appellant was supposed to do at the office.

Ibid. at 61-62. He explained how profits were split up and however one was paid.

Ibid. at 61-62. He testified that he, through Mr. Stein, ensured that a suretyship

was in place, to the satisfaction of the sheriff Ibid. at 62-64. He explained that his

accountant prepared his taxes from the spreadsheets that were in evidence, and that

he did not keep checks. Ibid. at 65-66. He explained his duties to Mr. Stein and

that he always did them. Ibid. at 66-67. He testified that he had done everything

that he told Mr. Anderson, the appellant, that he would do. Ibid. at 66. He

reiterated that the appellant filed a form with the county indicating that his, the



                                         - 18 -
appellant's, operation was a "sole proprietorship," and that fact was demonstrated

again to the jury. Ibid. at 69-70. He was aware that money that the appellant was

responsible for was missing and that he and Mr. Stein were concerned about it.

Ibid. at 71-73. When he confronted the appellant about at the appellant stated that

he did not have the money to pay back so the appellee reported it to Mr. Stein and

tried to help the appellant get a loan to pay the money. Ibid. at 73-74. Appellant

did not qualify for the loan so the appellee took alone and the appellant was

supposed to pay him monthly until the loan was satisfied. Ibid. at 75. There were

a total of three discrepancies from Appellant's work at the office that were brought

to light. Ibid. at 76.-78. When the third incident came to light the appellant said

that he wanted to do something different. Ibid. at 78-79. This explained the text

messages between Appellant and Appellee that the appellant had testified about but

did not seem to understand (his own text messages) regarding "money." Ibid. at

80-81. He said that if the Sheriff had been unsatisfied with the financial surety he,

the sheriff, certainly had authority to ask for something new. Ibid. at 83. The

Sheriff never did that. Ibid. at 83. He identified the financial statement that was

on file and that made the business possible. Ibid. at 83. He summed that the

appellant was essentially paying a portion of his profit for the use of the business

location and for the appellee's services both to him and to Mr. Stein on behalf of




                                       -19-
the surety. Ibid. at 89-90. Everyone had an interest in ensuring that Mr. Anderson,

the appellant, was making money because if he did not, they did not. Ibid. at 90.

        E. BARRY LOVELY

       The next witness was Barry Lovely, a former bondsman. RR4, beginning at

123. The substance of his testimony was that he did not impersonate the appellant

on the phone but, to the contrary, that the appellant verbally assaulted him after

luring him to Gilmer from his home to do a bond. Ibid. at 138-141. He testified

about the appellant stalking him as well. He explained why one bondsman would

transfer the telephone number to another bondsman (to make sure the calls were

answered). Ibid. at 128-138. This was all reiterated on cross-examination. Ibid. at

141-153.

       F. JONATHAN WHARTON

      The appellant's trial counsel then testified regarding attorney fees. RR4 at

153-161.

       G. MICHAEL ANDERSON (SECOND TIME)

      Appellant's counsel then called him back to the stand to testify regarding

alleged damages. RR4 at 161-175.

       H. MIGUEL LARSON

      Appellant then called a sheriff's deputy, Miguel Larson, who had been

operating the metal detector immediately prior to being called as a witness. Ibid. at

186. Deputy Larson was placed on the stand briefly and he knew nothing about

                                        -20-
 the case nor the subjects of information that the appellant wanted to ask about. He

 was dismissed. Ibid.at 201-206.

       At that time, following some discussion outside the presence of the jury, the

 appellant rested.

        I. GEORGE MEISENHEIMER

       Appellee called George Meisenheimer, a banker who considered a loan

 request from Appellee. Ibid. at 214-216. The loan was denied. Ibid. at 216. The

 stated reason for the loan was business working capital, not furniture as alleged by

 the appellant and his testimony. Ibid. at 216-217. He did remember the appellee

 then coming in to take a loan for the same purpose. Ibid. at 218.

        J. FINAL MATTERS

       The parties and court then took up the issue of the charge and there were no

objections to the ultimate charge. Ibid. at 223.

       Since the appellant had called all of the appellee's witnesses, with the

exception of the banker, the appellee then rested. Both parties closed. As stated

above, the jury returned a verdict in favor of the appellee.

VIII. IMPEACHMENT

       A. SUMMARY OF THE ARGUMENT

      Appellant contends that he was continuously interrupted by the court and

admonished for improper impeachment. He claims that no objections were made




                                        -21-
by the appellee's attorney, and that the first time this happened was in the

questioning of Harold Stein.

       It is true that appellant's counsel was interrupted numerous times for

improper impeachment. The attempted impeachments were patently improper.

The objections in this case were numerous and Appellant's improper

impeachments were frequent; at times the undersigned objected, at others he

jumped up or startled in his chair. The impeachments were open and obvious

because Appellant's counsel would walk toward the witness with a transcript or

simply start reading it.     Even after the court explained impeachment to the

appellant's counsel, he continued to get it wrong, principally because the

statements were not inconsistent.

       A. ARGUMENT

      The law is well established: TEX. R. EvID. 613(a) provides the context in

which a witness may be impeached with a prior inconsistent statement. See Ibid.

When a witness is examined about a prior statement, Rule 613(a) requires that the

witness be told: (1) the contents of the statement; (2) the time and place the

statement was taken; and (3) the identity of the individual to whom the statement

was made. TEX. R. EvID. 613(a). The witness must be given an opportunity to

explain or deny the statement before it is admitted to the jury. Ibid. If the witness

unequivocally admits having made the statement, extrinsic evidence of the same



                                        - 22 -
shall not be admitted. Ibid. "If the admission is partial, qualified, or otherwise

equivocal, or if the witness claims to not remember making the prior statement, the

prior statement is admissible for impeachment purposes." Ruth v. State, 167

S.W.3d 560, 566 (Tex.App.—Houston [14th Dist.] 2005, pet. ref d) (citing McGary

v. State, 750 S.W.2d 782, 786 & n.3 (Tex. Crim. App. 1988)).

      Appellant's lengthy rendition of the law ignores the most basic point: in

order to impeach a witness with a prior statement is must be inconsistent.

Unfortunately, Appellant did not make a record of the statements, with one

exception (which was actually made by Appellee's counsel under the rule of

optional completeness), leaving nothing for this Court to decide.

             a. HAROLD STEIN IMPEACHMENT
      The first instance alleged by the appellant concerns the testimony of Harold

Stein. Appellant's Brief at 18. Appellant's counsel was standing at the witness

stand with a deposition transcript in his hand. Mr. Stein testified that Gerald Todd

was the surety for the bonding concern. RR3 221. As noted above, this

information had been known to the appellant since 2012, when he obtained the

Sheriff's department file. As the record reflects, the appellant's counsel was

attempting to "impeach" Mr. Stein—his own witness—with a deposition transcript

that, he admitted, did not contain a question to that effect. In other words, Mr.

Stein testified that no one had asked him who the surety was before that very day



                                       - 23 -
in court—no one, including the appellant's counsel. There was nothing to

impeach. Judge Parish was correct that this was improper impeachment.

Significantly, on this first event, as noted in the appellant's Brief, this is when the

court attempted to explain impeachment procedure to the appellant's counsel.

Appellant's brief at 19, quoting RR3 221-223.

              b. HAROLD STEIN AGAIN
       The second instance is nearly identical. Appellant claims that prior to trial,

Mr. Stein claimed that he was a bond broker and that during trial he claimed that

he was a broker for sureties. Appellant's brief at 19. Once again, as revealed

within the appellant's Brief and quoted portions of the transcript, Mr. Stein had not

been asked that question before; he had not been asked about all of his jobs. There

was no inconsistent statement. Also, that portion of the appellant's Brief

highlights the appellant's confusion between a/the surety company and "Surety

Company," the latter of which is the proper name for Mr. Stein's superior in the

business hierarchy. Ibid. at 20-21. Put simply, the appellant's attorney had not

asked the witness anything about surety brokerage during his deposition, could not

identify any question that should have elicited that response, and there was nothing

in the transcript with which to impeach him. When the trial judge asked him to

identify the question in the deposition, the appellant's counsel identified two full

pages, then admitted that the portion he wanted to read with a narrative that was



                                        -24-
not in response to a question. Judge Parish's ruling, sustaining the undersigned's

objection, was correct.

              C. INSTRUCTIONS

       The undersigned did, as alleged in the appellant's brief, ask the court to

instruct the jury that that was not impeachment because, in fact, it was not. This

was part of a repeated pattern of the appellant's counsel walking to the witness

with a deposition transcript and pretending to catch him in a lie, resulting in no

such lie being demonstrated.

              d. OPTIONAL COMPLETENESS

      The next complaint concerns invocation of the rule of optional completeness

after the appellant's attorney began a failed impeachment, again, and skipped

portions of the alleged impeachment testimony. Appellant does not assign any

particular error to this, and there is none. Appellant refers to the procedure of "voir

dire" as though it is an unfamiliar concept.

      Appellant refers to an attempted impeachment that begins on RR4 at 21 of

the appellee in which he was trying to cobble together an impeachment with

several questions. The appellee read that portion and affirmed that that was just

what he had said in court. Ibid. at 21-22. Discussion continued, at the bench,

during which the court instructed, again, the appellant's counsel how to properly

impeach a witness. Ibid. at 25. Optional completeness was allowed after the failed



                                        - 25 -
impeachment to show that the appellant had, in fact, said the same thing in his

deposition that he said during trial. Ibid. at 26-27. Appellant then wanted appellee

to stop reading in the middle of a sentence which was included in his original

impeachment offer. Ibid. at 27. Appellant, and his failed impeachment, had

"opened the door" to this limine matter. Ibid. at 27-29. The Court's rulings were

correct.

              e. WHAT IS A TRANSFER

      Appellant claims that the trial court erred in asking a witness, when he said

that a number was transferred to him, what that meant. RR4 at 134-135;

Appellant's Brief at 26. This was occasioned by parties and attorneys using

different words for "forward". It is unclear what legal argument is made but, at

least, it became clear that "forward" was the proper description.

              f. ANOTHER IMPEACHMENT

      Another botched impeachment is the subject of the next complaint.

Appellant's Brief at 27-28. Again, the court tried to help the appellant's attorney

with the proper procedure and, once again, the appellant failed. The reasons are

patent in the quoted portion of the transcript. Appellant's brief at 28; RR4 at 126-

129. It was not a proper impeachment.

             g. THE JUDGE DOESN'T UNDERSTAND IMPEACHMENT

      Appellant next contends that the trial judge did not understand how

impeachment worked and required that the identical question be asked at trial as

                                        -26-
was asked during the deposition. Appellant's brief at 29. In fact, the Court

directly informed the appellant's counsel that, "As long as it's in the same context

it's not a problem." RR4 22-25. That is noted in the quoted portion of the transcript

in Appellant's Brief. Appellant's brief at 29. The fact was that every attempted

impeachment was not in the same context, consisted of a jumble of questions or a

narrative answer, or amounted to the fact that a particular question had never been

asked in deposition by the appellant's counsel.

      It is astonishing that at this stage of the case, on appeal, after a chance for

research and reflection, there is still a complete misunderstanding on the part of the

appellant concerning proper impeachment procedure and what is proper

impeachment. In each of the instances identified in the appellant's brief (as well as

many others, which are not mentioned in the brief) there was no actual

impeachment. Rather, Appellant seemed to wish to simply read transcripts and

statutes and present his case through Appellant's personal testimony and

impeachment of almost every other witness. Each time, the appellant's attorney

approached the witness, transcript in hand, as though he had caught the witness in

a lie. This happened so frequently that the undersigned humbly suggests that the

appellant's counsel has mistaken the Court's kindness in trying to help him make a

proper impeachment (though none existed in this case)—as opposed to frustrating

his presentation—and that a fair reader of the record could also conclude that



                                        -27-
Appellant's multiple trips to the witness stand were an intentional tactic to make

each witness appear to be a liar.

        B. CONCLUSION

       The appropriate standard of review for evidentiary rulings is abuse of

discretion. Appellate courts review a trial court's decision to admit or exclude

testimony under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v.

Auld, 34 S.W.3d 887, 906 (Tex. 2000). The test for abuse of discretion is whether

the trial court acted without reference to any guiding rules and principles; in other

words, the appellate must decide whether the act was arbitrary or unreasonable.

Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). The appellate court must

uphold an evidentiary ruling if there is any legitimate basis for it. State Bar of

Texas v. Evans, 774 S.W.2d 656, 658 n.7 (Tex. 1989). If there is error in the

admission or exclusion of evidence, court examine the entire record to assess the

harm caused by the error. See Cortez v. HCCI—San Antonio, Inc., 131 S.W.3d 113,

119 (Tex.App.-San Antonio 2004), affd, 159 S.W.3d 87 (Tex.2005). This court

reverses based on the erroneous admission or exclusion of evidence only if the

appellant shows error that was calculated to cause and probably did cause the

rendition of an improper judgment. TEx. R. APP. P. 44.1(a)(1); Cortez, 131 S.W.3d

at 119. Accordingly, the appellant must demonstrate that the excluded evidence

was both controlling on a material issue and not cumulative of other evidence. Tex.



                                       - 28 -
Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000); Williams Distrib. Co. v.

Franklin, 898 S.W.2d 816, 817 (Tex.1995). Erroneous evidentiary rulings are

usually not harmful unless the case as a whole turns on the particular evidence in

question. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-4 (Tex.1995).

 IX. WEIGHT OF THE EVIDENCE
          C. SUMMARY OF THE ARGUMENT

         Appellant's counsel next complains that the court, in instructing the jury that

impeachments were improper, commented on the weight of the evidence. This

completely ignores that most of the discussion of improper impeachment was in

the context of an objection and ruling that occurs in front of the jury, that the

improper impeachment procedures are not "evidence," and that there was not a

single objection to the court's instructions.

         A. ARGUMENT

         As correctly stated by the appellant, the judge should not "convey his or her

opinion of the case to the jury and ultimately influence the jury's decision."

Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.).

Appellant also correctly notes that when no objection is made to the comment,

incurable harm must be shown. State v. Wilemon, 393 S.W.2d 816, 818 (Tex.

1965).

      Improper impeachment is not evidence. It is improper procedure and,

especially given the number of times it occurred in this case, created the unfair

                                          -29-
impression that the appellant's attorney was catching witnesses in lies when he

failed to do so a single time. The court was just repeating its ruling that the

impeachment was not proper, which the jury had already heard, and that did not

refer to evidence—it referred to counsel's failure to follow procedure or identify an

inconsistency. The undersigned admits puzzlement at this claim for relief.

Appellant goes on to fault the court for discussing, with counsel, an improper

impeachment objection in which two statements—one before trial and one at

trial—were allegedly different; that is the judge's job—to determine whether it was

proper impeachment and sustain or overrule an objection. Appellant alleges that

this case was a contest of credibility, which is true, as to the witnesses not the

attorneys. The trial court committed no error.

 X. JUDGMENT NISI

       B. SUMMARY OF THE ARGUMENT

      Appellant's counsel next complains that Judgments Nisi were improperly

excluded from evidence.

      A cursory review of the transcript reveals that Appellant's counsel thought

Judgments Nisi were like normal judgments; they were excluded because they had

never been disclosed or listed as exhibits, demonstrated the beginning of a bond

forfeiture not the end, and were being offered to show "judgments against Mr.




                                       -30-
Anderson individually." Appellant's counsel claimed that he obtained them during

trial.

         A. ARGUMENT

         This discussion begins on RR4 at 209. The Judgments Nisi were offered to

show "Judgments against Mr. Anderson individually for the Fast Action Bail

Bonds forfeitures." Ibid. at 209. They were not disclosed either generally or

specifically in response to the request for disclosure nor the court's pretrial order

that exhibits be exchanged prior to trial. Their existence could not have been a

surprise to Appellant because the business relationship ended years before trial.

They were a complete mess-- some of them were not certified, some of them did

not show when the bonds were made (in other words, during the association

between the appellant and appellee), there was no indication how they were

resolved, and, most significantly, they represented the beginning of a bond

forfeiture case and not the end. RR4 212; RR5 7-8. Finally, in keeping with the

appellant's trial theory, there had been no evidence that the judgments were ever

submitted to the appellee or the surety (not that they would have been, because

they did not represent the end of the case triggering the need for payment) for

payment. RR5 at 10-12. Appellant's counsel did not seem to understand the

terminology of a "judgment nisi" at trial. Undeterred, on appeal, he now

understands what a judgment nisi is, but claims that because Mr. Anderson's (the



                                       -31-
Appellant's name) was on them, he would have to satisfy a judgment. This, of

course, is correct, if one ignores the dozens of pages and common knowledge of

what a surety is. In a car accident the individual at fault is sued personally, but a

judgment is paid by his insurance, if he has any. That, and that fact that no

ultimate money damages were shown, is why the court properly excluded the

judgments nisi as irrelevant. It did not support any theory, would have confused

the jury, and was properly excluded as a class of evidence.

 XI. CROSS EXAMINATION ON THE LAW

       B. SUMMARY OF THE ARGUMENT

      Appellant next complains that the court improperly and not allow him to

read statutes and ask lay witnesses to respond to them.

      Each time the appellant's counsel asked these questions, the undersigned

objected "calls for a legal conclusion," or words to that effect and the court

properly sustained the objection.

       A. ARGUMENT

      Appellant points this Court's attention to RR3 298-99 and RR3 305-306,

where he tried to produce section 152.102 of the Texas Property Code for the court

to read, and where he, despite the sustained objection, simply read the law to the

witness.

      No witness in this case was qualified as a legal expert and, even if one had

been, he would not have been allowed to testify on the ultimate issue(s). What

                                       - 32 -
Appellant now couches as a question about ownership was actually a hypothetical

legal question at trial:

       ***

       ...When -- when partners -- so if you, for example, had --

      when you contribute property to a partnership do you -- is

      it -- do you think or do you believe that you retain

      ownership of it, that it's still yours even though you

      terminated the partnership?

      MR. VAN CLEEF: Objection, Your Honor.

      This calls for a legal conclusion.

      THE COURT: Sustained.

RR3 at 298. Counsel then tried to tender a printout of Section 152.102 of the

Texas Property Code, If] or judicial notice that this is the law." Ibid. The trial

court informed him that she knew the law, that he cannot ask the witness to testify

as a legal expert, and sustained the objection again. Ibid.at 298-299. Undeterred,

counsel's next question of the same witness was:

      Q. (By Mr. Wharton) All right. So let me — let me pose a hypothetical
      to you based on this law. So property is partnership property if
      acquired in the name of one or more partners regardless of whether
      the name of the partnership is indicated if the instrument transferring
      title to the property --
      MR. VAN CLEEF: Your Honor, I object. This is not a question. He is
      reading the law to a witness who is not qualified to --



                                       -33-
       THE COURT: Sustained, and I'll instruct the jury on the law when it's
       time.

RR3 at 299. Still undeterred, a few minutes later, Counsel asked of the same

witness (reading the statute):

      Q. Okay. Do you know the -- have you gone over all the rules for
      determining if a partnership is created?
      A. Yes.
      Q. Okay. So you're aware of the factors would include receipt or right
      to receive a share of the profit of the business, expression of an intent
      to be partners in the business, participation or right to participate in
      control of the business.
      MR. VAN CLEEF: Your Honor, this would be a multi-part question
      or he's just reading the law again and I object.

RR3 305. This objection was sustained again. RR3 305-306. Counsel was

determined to ignore the judge's ruling, read the law to the jury, and ask the

witness hypothetical and other legal questions that he had not been qualified to

answer. The Court's ruling were correct. Appellant fails to explain why a

witness's understanding of the law has any relevance in the case. In this appeal, the

appellant correctly states the law on ultimate legal questions, but does not even

argue the qualification of any witness to render a legal opinion on his statutes and

hypotheticals. A lay witness's opinion on the law is not evidence for the jury to

consider. See TEX. R. EVID. 701 (outlining permissible opinion testimony for non-

expert witnesses); United Way of San Antonio, Inc. v. Helping Hands Lifeline

Found., Inc., 949 S.W.2d 707, 713 (Tex.App.-San Antonio 1997, writ denied) (A




                                       - 34 -
lay witness "may not give legal conclusions or interpret the law to the jury").

Judge Parish's rulings were correct.

XII. CHARACTER BOLSTERING

        B. SUMMARY OF THE ARGUMENT

       Appellant next complains that Appellee improperly bolstered Barry Lovely

(a witness) by asking Appellant's own witness (Harold Stein) if he thought that

Barry Lovely (who Appellant accused of conspiring with Appellee to tortuously

interfere with Appellant's business) "does underhanded business practices."

Appellant objected that his own witness (Mr. Stein) could not "testify in character

like that, unless he's a character witness." The objection was overruled.

      The question was proper and the court's ruling was proper as well.

       A. ARGUMENT

      The question and answer appear at RR3 at 258-259. The testifying witness

was Appellant's own witness, Harold Stein, and the question concerned Barry

Lovely. In his Third and Fourth Amended Petitions, Appellant accused Barry

Lovely of "civil conspiracy" with Appellee through trickery of a telephone line, as

detailed above. Mr. Stein had known Mr. Lovely for eighteen years and had

helped Mr. Lovely start his own bonding business, was asked on cross-

examination, "[i]d it your impression that Mr. Lovely has — does underhanded

business practices." RR3 at 258. Appellant objected that "[y]ou don't get to testify

in character like that, unless he's a character witness." RR3 at 260. The court

                                       -35-
overruled the objection and Mr. Stein responded "I don't know of any

underhanded." Ibid.

       As an initial matter, any error was waived because the objection states

nothing for the Court to decide. Character witnesses in the sense stated in the

objection exist in criminal trials, not civil trials. Mr. Stein was simply a "witness";

one called by Appellant.

       Second, "I don't know of any underhanded," does not amount to character

evidence.

      Third, Barry Lovely was, in fact, accused of conspiring with Appellee to

tortuously interfere with Appellant's business, so asking Appellant's own witness

of his impressions (even if fruitlessly) is within the ambit of relevant cross

examination.

      Fourth, this did not concern a specific character trait (such as truthfulness,

honesty, or piety).

      And fifth, the next question was not objected to:

      (By Mr. Van Cleef) In the roughly nineteen 12 years you've known
      him that's not been an issue for you?
      A. Not for me it has not.

RR3 at 259.

      Appellant had previously testified about Barry Lovely allegedly trying to

steal his business as "one of [Appellee's] associates." RR3 at 66-68; See Ibid.at



                                        -36-
 205 (counsel described Mr. Lovely's conduct as "actionable conduct"). Norman

 Chism had also already testified about the alleged incident. RR3 204-214.

        Mr. Lovely was an alleged co-conspirator. As noted by Appellant in his

 brief, 'When evidence of a person's character or character trait is admissible, it

may be proved by testimony about the person's reputation or by testimony in the

 form of an opinion." TEX. R. EVID. 405(a)(1). It is only on cross examination (as

was the case here) that specific instances of conduct may be inquired into. TEX. R.

EVID. 405(a)(1)."

        The Court did not err in overruling the objection.

XIII. CUMULATIVE ERROR

         B. SUMMARY OF THE ARGUMENT

        Appellant next contends that "the combined effect of the errors throughout

the trial probably caused the rendition of an improper judgment. TEX. R. APP. P.

44.1(a).

        As Appellant has not identified a single legitimate error in trial, this point is

moot.

        A. ARGUMENT

        While it is conceivable that a number of errors may be found harmful in

their cumulative effect, no authority holds that non-errors may in their cumulative

effect cause error. See Chamberlain v. State, 998 S.W.2d 230, 238

(Tex.Crim.App.1999) (en banc). However, multiple errors, even if considered

                                          -37-
harmless taken separately, may result in reversal and remand for a new trial if the

cumulative effect of such errors is harmful. Fibreboard Corp. v. Pool, 813 S.W.2d

658, 695 (Tex.App.—Texarkana 1991, writ denied). Before we may reverse a

judgment and order a new trial, we must determine that the error committed by the

trial court was reasonably calculated to cause and probably did cause the rendition

of an improper judgment. Ibid. at 695-96; TEX. R. APP. P. 44.1(a). Appellants must

show that, based on the record as a whole, but for the alleged errors, the jury would

have rendered a verdict favorable to it. See Pool, 813 S.W.2d at 695.

      Appellant has not shown any errors, but with regard to cumulative error, the

appellant falls far short of establishing that the record as a whole support a

conclusion that but for any errors, the jury would have rendered a different verdict

and, instead, invites this Court and the undersigned to summarize the entire record

for him. Appellant has failed to fully present this claim for review by failing to

explain how he could have won this trial.

      A fair reading of the record establishes that the appellant believed himself,

with no experience, investment, knowledge in the industry, or skill, to be an instant

"partner" with a successful businessman. Cross-examination of the appellant was,

to state it mildly, excruciating due to his evasiveness and parsing of questions--

this was obvious to the jury as it judged his credibility. The appellant did not

believe that anything occurred that he did not witness with his own eyes. To use



                                       - 38 -
the example of an insurance company, he did not believe that State Farm exists,

that any payments were made to State Farm, or that State Farm was standing

behind him despite the fact that he never made a claim. Nearly the entirety of the

case was presented to witnesses called by the appellant. The appellant was simply

not credible. Mr. Chism had no idea who had deceived him and his affidavit was

made under suspicious circumstances. Mr. Stein explained the entire business

from top to bottom and the explanation did not comport with the appellant's

theory. Mr. Snoddy's testimony was unequivocal: there was no partnership and he

owned the assets of the business that he allowed Mr. Anderson to use until Mr.

Anderson decided to leave, despite the fact that Mr. Anderson and had several

improprieties in the business. He taught Mr. Anderson the business and he helped

that business grow. He also watched over the business in his capacity as a buffer

between Mr. Anderson and his surety. The Sheriff was satisfied and no bonds

were ever refused as a result of the lack of suretyship. There was no evidence the

surety was not paid but, to the contrary, Mr. Stein testified that his income was

derived from those payments so they must of been made. Appellant's counsel, as

an extension of the appellant, was confused about how the business worked,

matters such as the proper name "Surety Company," and the hierarchy of the

people who make the business possible. It is fair to assume that repeated,

outraged, expressions of disbelief of things that the appellant and his counsel could



                                        - 39 -
not see and touch were, after a time, accepted by the jury as a general lack of

knowledge. Appellant's counsel has addressed a few of the dozens of sustained

objections during the trial. In these circumstances it would be difficult for any

reviewing court to determine that the results would have been different but for

cumulative error, or that any error at all has been identified by the appellant.

XIV. PRAYER
      For the reasons stated above, Appellant's appeal should be dismissed.

                                               Respectfully submitted,




                                               L. Charles MIED7
                                               State Bar No. 00 86305

                                               P.O. Box 2432
                                               Longview, Texas 75606-2432
                                               (903) 248-8244 Telephone
                                               (903) 248-8249 Facsimile

                                               COUNSEL FOR APPELLEE




                                        -40-
 XV. CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has

 been forwarded by facsimile, email, and electronic filing to:

       Jonathan Wharton
       Snow E. Bush, Jr., PC
       420 N. Center Street
       Longview, TX 75601
       Fax: (903) 753-7278
       Email: jonathanwhartonl@sbcglobal.net

 on this Friday, June 26, 2015.




                                              L. Charles va Cleef




XVI. CERTIFICATE OF COMPLIANCE

       In accordance with Rule 9.4(i)(1), Appellee's brief contains 7,984 words as

computed by Microsoft Word 2013, in 14 point typeface, Times New Roman.


                                                     1)
                                                          bil

                                              L. Charles va Cleef




                                       -41-
XVII. RECORDS EXCEPRTS
 None. TEX. R. APP. P. 38.2(A)(1)(C).




                                        - 42 -
