                                                                            ACCEPTED
                                                                       14-14-00816-CR
                                                         FOURTEENTH COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                  2/13/2015 1:02:28 PM
                                                                   CHRISTOPHER PRINE
                                                                                CLERK

                      NO. 14-14-00816-CR

                IN THE COURT OF APPEALS                 FILED IN
                                                 14th COURT OF APPEALS
                                                    HOUSTON, TEXAS
                     FOURTEENTH DISTRICT         2/13/2015 1:02:28 PM
                                                 CHRISTOPHER A. PRINE
                                                          Clerk
                       HOUSTON, TEXAS


                         NO. 1381491

                      IN THE TRIAL COURT

                    262ND JUDICIAL DISTRICT

                    HARRIS COUNTY, TEXAS


JESSE RALPH DAINS             §               APPELLANT

VS.                           §

THE STATE OF TEXAS            §               APPELLEE


                     BRIEF FOR APPELLANT




                                       ALLEN C. ISBELL
                                       202 Travis, Suite 208
                                       Houston, Texas 77002
                                       713/236-1000
                                       Fax: 713/236-1809
                                       STATE BAR NO. 10431500

                                       COUNSEL ON APPEAL
                 NAMES AND ADDRESSES OF ALL PARTIES
                 AT THE TRIAL COURT’S FINAL JUDGMENT


Trial Judge

       Honorable Denise Bradley, Judge Presiding
       262nd District Court
       1201 Franklin, 15th Fl., Houston, Texas 77002


Appellant/Defendant

       Mr. Jesse Ralph Dains
       #01958039
       Stiles Unit
       3060 FM 3514, Beaumont, Texas 77705


Appellant’s Counsel

       Mr. Allen C. Isbell - Counsel on Appeal
       202 Travis, Suite 208, Houston, Texas 77002

       Mr. Victor Wisner - Counsel at Trial
       8431 Katy Fwy., Suite 101, Houston, Texas 77024


Attorneys for the State of Texas

       Mr. Alan Curry - Assistant District Attorney on Appeal
       1201 Franklin, Ste. 600, Houston, Texas 77002

       Ms. Jamie Burro - Assistant District Attorney at Trial
       Ms. Jamie Morrisson - Assistant District Attorney at Trial
       1201 Franklin, 6th Fl., Houston, Texas 77002




c:\appeals\dains\brief for appellant                                ii
                                    TABLE OF CONTENTS

                                                                                                      PAGE

       Names and Addresses of All Parties at the Trial Court’s Final Judgment
            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

       Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

       Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . v

       Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1

Point of Error Number One
     APPELLANT SUFFERED EGREGIOUS HARM BY THE TRIAL
     COURT’S FAILURE TO DEFINE PROPERLY “INTENTIONALLY AND
     “KNOWINGLY” AS APPLIED TO APPELLANT’S ALLEGED
     CONDUCT BECAUSE APPELLANT’S DEFENSE AT TRIAL WAS
     THAT HE “BLACKED OUT,” WHICH RAISED THE ISSUE OF
     WHETHER HE ACTED WITH THE REQUIRED CULPABLE MENTAL
     STATE WITH REGARD TO HIS ALLEGED CONDUCT. . . . . . . . . . 1

       Statement of Facts Point of Error Number One . . . . . . . . . . . . . . . . 2

       Summary of the Argument Point of Error Number One . . . . . . . . . . 10

       Argument and Authorities Point of Error Number One . . . . . . . . . . 11

       Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

       Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

       Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




c:\appeals\dains\brief for appellant                                                                          iii
                                    INDEX OF AUTHORITIES


CASES                                                                                                   PAGE

Aekins v. State, 447 S.W.3d 270, 286-287 (Tex. Crim. App. 2014) . . . . . 12

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim .App. 1985) . . . . . . . 13

Garza v. State, 794 S.W.2d 497, 500 (Tex. App. Corpus Christi 1990,
     pet.ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010) . . . . . 12

Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) . . . . . . . 12

Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) . . . 11-12

Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) . . . . . . . . 13

Reed v. State, 421 S.W.3d 24, 29-30 (Tex. App. Waco 2013, pet. ref’d)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Skillern v. State, 890 S.W.2d 849, 869 (Tex. App. Austin 1994, pet.ref’d)
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) . . . . . . . . 13

Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) . . . . . . . . . . 12


STATUTES

Texas Code of Criminal Procedure, Art. 36.14 . . . . . . . . . . . . . . . . . . . . . 12

Texas Penal Code, Sec. 6.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




c:\appeals\dains\brief for appellant                                                                           iv
                STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is waived.




c:\appeals\dains\brief for appellant                v
TO THE HONORABLE COURT OF APPEALS:

       COMES NOW JESSE RALPH DAINS, appellant, by and through his

appointed/retained attorney of record, ALLEN C. ISBELL, and files this Brief

in support of his prayer for reversal of his conviction.

                      Statement of the Nature of the Case

       This is an appeal arising from a conviction for Aggravated Sexual

Assault in the 262nd District Court of Harris County, Texas, the Honorable

Denise Bradley, Judge Presiding. The jury found appellant guilty. The

judge/jury sentenced appellant to twenty-five (25) years imprisonment, in the

Texas Department of Criminal Justice, Institutional Division and assessed a

$10,000 fine. No Motion for New Trial was filed. Appellant gave written Notice

of Appeal on September 30, 2014.

                            Point of Error Number One

APPELLANT SUFFERED EGREGIOUS HARM BY THE TRIAL COURT’S

FAILURE TO DEFINE PROPERLY “INTENTIONALLY AND “KNOWINGLY”

AS APPLIED TO APPELLANT’S ALLEGED CONDUCT BECAUSE

APPELLANT’S DEFENSE AT TRIAL WAS THAT HE “BLACKED OUT,”

WHICH RAISED THE ISSUE OF WHETHER HE ACTED WITH THE

REQUIRED CULPABLE MENTAL STATE WITH REGARD TO HIS


c:\appeals\dains\brief for appellant                                        1
ALLEGED CONDUCT.

                                Statement of Facts
                            Point of Error Number One

       The Indictment charged that appellant committed the offense of

Aggravated Sexual Assault:

       “The duly organized Grand Jury of Harris County, Texas, presents
       in the District Court of Harris County, Texas, that in Harris County,
       Texas, JESSE RALPH DAINS, hereafter styled the Defendant,
       heretofore, on or about MARCH 21, 2013, did then and there
       unlawfully, intentionally and knowingly cause the penetration of
       the mouth of KELLY LACKEY, hereinafter called the Complainant,
       by the sexual organ of the Defendant, without the consent of the
       Complainant, namely, the Defendant compelled the Complainant
       to submit and participate by the use of physical force and
       violence, and in the course of the same criminal episode, the
       Defendant used and exhibited a deadly weapon, namely a KNIFE”
       (C.R. I, 13).

       The complaining witness, Kelly Lackey, began working as a bartender

at the B & H Bar in Tomball, Harris County, Texas, in January of 2013. The

small bar has a regular clientele from the community. It served beer and

wine, but allowed patrons to bring in their own liquor and to purchase ice,

Sprite or Coke. She had seen the appellant, Jesse Ralph Dains, in the bar

about five times between January and the date of the alleged offense. The

first time that he came in, appellant asked her to dinner but she declined

(R.R.3, 126-129). On the day of the alleged assault, she arrived at the bar at


c:\appeals\dains\brief for appellant                                           2
5 p.m. for the evening shift, which usually ended at 10 p.m. It was very busy

that evening. Therefore, she did not recall when appellant arrived. When she

did see him, he did not appear overly intoxicated. Sometime before 9 p.m.,

the electrical lines to the building were cut by some unknown person or

persons outside of the bar. When the lights went out, most people began to

leave. She, a man named Jesse Martin, and appellant were the last ones

inside the bar (R.R. 3, 131-132).

       Jesse Martin was “a regular” who came in with his girlfriend, Sonia,

usually. Their custom was to have a drink with the complainant and wait

inside the bar while the complainant finished closing up. However, Sonia was

ill. So, Jesse Martin had a drink with her and appellant and then left before

Sonia had closed (R.R. 3, 133-134). After saying goodnight to Jesse Martin

at the outside door, she found appellant standing at the bar near where she

kept her cell phone. Immediately, appellant grabbed her and tried to kiss her.

She pushed him away. Appellant threw her to the ground, got on top of her,

held a knife to her side and told her that he wanted to fuck her. He said that

he knew that this was the only way it could happen. She started to scream for

help, but appellant pulled her up and began dragging her toward the woman’s

restroom. She began to fight appellant over the knife. She reached for her


c:\appeals\dains\brief for appellant                                         3
cell phone as they went by the bar, but it was missing (R.R. 3, 134-138).

       Once they were inside the restroom, she began to wrestle with

appellant. Again, he pushed her to the floor. He held a knife to her throat and

said, “Welcome to your funeral.” Then, he demanded that she remove her

underwear. The complainant claimed that appellant forced her to perform oral

sex on him for about six hours. Appellant told her that he wanted to ejaculate

in her mouth as he cut her throat, but was unable to obtain an erection.

Appellant beat her head against the sink, the toilet bowl and the wall any time

she tried to fight back. When she told appellant that she was going to be sick,

he held her head over the toilet. In doing so, he took the knife away from her

throat. She grabbed the lid from the toilet tank and hit appellant in the head

with it. Although injured, appellant said that she was clever but not clever

enough. She was bleeding profusely, but appellant blocked the doorway and

told her she could just bleed out. However, he realized that some of the blood

in the room was his own, he ordered her to clean up the bathroom. She sat

on the floor, holding a lighter in one hand so she could see to mop with the

other hand. Appellant stood behind her the entire time holding a knife to her

throat. When she had finished, appellant gathered the towels and told her

that he was taking her to his hotel. He forced her at knife point to drive her


c:\appeals\dains\brief for appellant                                         4
truck to the hotel next door (R.R. 3, 140-148).

       Appellant kept the knife in her side and put his arm around her as they

walked through the lobby to his room to shield her from the view of the desk

clerk (R.R. 3, 149). The desk clerk, Satisbhai Patel, saw appellant come into

the hotel with a female at about 4:30 a.m. (R.R. 3, 18-20). When they reached

his hotel room, appellant ordered her to take a shower to wash off all of the

blood. After she had showered, appellant ordered her to lie on the bed where

he performed oral sex on her without her consent. When she asked if she

could just rest a bit, appellant cleaned his knife and laid down beside her, and

appeared to fall asleep. However, when she sat up, he grabbed her by the

back of the head. She said that she just needed to use the bathroom. She

stayed in the bathroom until she was sure that appellant was asleep or

passed out. Then, she wrapped herself in a towel and ran to the lobby where

she asked the clerk to call 9-1-1 (R.R. 3, 21-22, 149-151). The complainant

testified that appellant did not slur his words or appear to be overly intoxicated

during the assault; that he was eerily calm, and calculating throughout the

assault (R.R. 3, 142, 145, 149). His demeanor was so chilling that she got the

impression he may have done this before (R.R. 3, 162-163).




c:\appeals\dains\brief for appellant                                            5
       Sergeant Jason Welch of the Tomball Police Department responded to

the 9-1-1 call. He spoke with the complainant before an ambulance was

called to take her to the hospital (R.R. 3, 27-30). Lori Cummings, the

emergency and forensic nurse who examined the complaint and prepared a

rape kit, described the numerous cuts, bruises and abrasions she observed

(R.R. 4, 7-18). Sergeant Welch found appellant in bed, and informed him of

the accusations the complainant had made against him. Appellant said that

he did not know what happened. Appellant smelled of alcohol and he was

taken to the hospital for treatment of a head wound (R.R. 3, 31-33). Detective

Albert Chambers secured the hotel and bar as crime scenes and took

possession of the complainant’s truck. He obtained search warrants for the

crime scenes and vehicle, and a warrant for buccal swabs from appellant for

DNA comparison (R.R. 3, 48-54). Officer Jason Smith collected the swabs

from appellant at the jail (R.R. 3, 64).

       The complainant’s cell phone was recovered from appellant’s hotel room

(R.R. 3, 159). Officers Jennifer Torres, Janet Barcelona, and Angela Fagg

collected evidence from the hotel, bar and vehicle (R.R. 3, 68-89; 96-106;

116-119). DNA analyst Zury Phillips analyzed the swabs submitted in this

case. Swabs from the rape kit contained a mixture of DNA from two sources.


c:\appeals\dains\brief for appellant                                        6
Neither the complainant nor appellant could be excluded (R.R. 4, 25-26). The

same was true for samples taken from bloodstains on a shirt (R.R. 4, 28-29),

a belt (R.R. 4, 32), and the handle of a knife found in appellant’s hotel room

(R.R. 4, 33-34).       Appellant could not be excluded as a possible major

contributor for the blood found on the toilet bowl lid and door handle to the

bathroom in the bar (R.R. 4, 34-37). Appellant, but not the complainant, was

excluded as a possible source for the blood found on the pair of jeans (R.R.

4, 31), and on the blade of the knife (R.R. 4, 33-34) recovered from

appellant’s hotel room.

       Appellant testified on his own behalf at the guilt-innocence phase of trial.

He stayed at the same hotel in Tomball when he came to Texas on business

(R.R. 4, 56). He considered himself to be a “functioning alcoholic.” (R.R. 4,

54-55, 69). On the morning of March 20, 2013, he flew into Houston from

Newark, New Jersery, to set up displays at the Home and Garden Show

(R.R. 4, 51, 62). He drank Crown Royal from his flask while he was in the cab

going to the airport. He had a couple of drinks while he waited for his flight.

He drank on the plane, had a couple of shots at the Houston airport, and

drank from his flask in the cab on his way to the hotel. After arriving at the

hotel he walked to a nearby liquor store and purchased a half-gallon bottle of


c:\appeals\dains\brief for appellant                                              7
Crown Royal (R.R. 4, 57-58). He always carried a knife as a tool for cutting

open boxes and tearing down displays at trade shows. He had put his knife

in his pocket out of habit when he unpacked his things at the hotel (R.R. 4, 60,

62, 71).

       He went to the B & H Bar about 5 p.m. He remembered that it was

unusually crowded that night, that the lights went out, that no one could find

out why, and that he and the complaint and another man had one or more

drinks after everyone else had left. But, he could remember nothing after that.

He blacked out and did not recall anything else until he woke up in his bed to

find police officers pointing guns at him (R.R. 4, 62-65, 72-74 ). He testified

that he never intended to assault the complainant, and that he had never in

his life intentionally wanted to hurt or do anybody any harm (R.R. 4, 59, 66 -

67). He had never blacked out from drinking too much (R.R. 4, 74), and he

had no explanation for anything that the complainant said that he had done

(R.R. 4, 66).

       In his opening statement and in his summation at the close of the trial,

appellant’s counsel expressed the hope of obtaining a jury charge on the

lesser included offense of sexual assault based on whether a deadly weapon

was used or exhibited. Then, he planned to argue that appellant was guilty


c:\appeals\dains\brief for appellant                                          8
only of the lesser included offense (R.R. 4, 15-16, 86). He did not obtain the

anticipated lesser-included charge because the use of a deadly weapon was

not a contested issue (R.R. 4, 84).

       Appellant testified that he “blacked out” after consuming a large amount

of alcohol, and that he did not remember any of the conduct alleged in the

indictment (R.R. 4, 64-65, 73-75). This testimony raised the only contested

issue at trial, that is, appellant’s lack of mens rea with regard to the alleged

conduct.

       The trial court’s jury instructions defining intentionally and knowingly

apply only to a “result-of-conduct” type of offense:

             “A person acts intentionally, or with intent, with respect to a
       result of his conduct when it is his conscious objective or desire
       to cause the result.

            A person acts knowingly, or with knowledge, with respect to
       a result of his conduct when he is aware that his conduct is
       reasonably certain to cause the result.

             Now, if you find from the evidence beyond a reasonable
       doubt that on or about the 21st day of March, 2013, in Harris
       County, Texas, the defendant, Jesse Ralph Dains, did then and
       there unlawfully, intentionally or knowingly cause the penetration
       of the mouth of Kelly Lackey by the sexual organ of the
       defendant, without the consent of Kelly Lackey, namely, the
       defendant compelled Kelly Lackey to submit or participate by the
       use of physical force or violence, and in the course of the same
       criminal episode the defendant used or exhibited a deadly
       weapon, namely a knife, then you will find the defendant guilty of

c:\appeals\dains\brief for appellant                                           9
       aggravated sexual assault as charged in the indictment” (C.R.I,
       71-72).

Appellant’s counsel did not object to the jury charge because it gave a

definition of intentionally and knowingly which did not apply to a “nature-of-

conduct” type offense. He did not object to the jury charge because it failed

to define intentionally or knowingly as applied to a “nature-of-conduct” type

offense.

                            Summary of the Argument
                            Point of Error Number One

       Appellant’s testimony raised the defense that he did not intentionally or

knowingly do the acts alleged in the indictment because he drank so much

alcohol that he blacked out and that he had no memory of what he may have

done. Appellant’s counsel appears not to have recognized that this testimony

raised a defense to the offense charged because it negates the mens rea

necessary for a conviction. Appellant’s counsel appears not to have realized

that aggravated sexual assault is a “nature of the conduct” type of offense.

Appellant’s counsel did not object to the trial court’s jury instructions defining

“intentionally” and “knowingly” on the grounds that those definitions apply only

to a “result of the conduct” type of offense. The jury charge does not contain

an appropriate definition of intentionally and knowingly as the apply to a


c:\appeals\dains\brief for appellant                                            10
“nature of the conduct” type of offense. The jury instruction misled the jury’s

deliberations regarding the mens rea of the offense. Appellant suffered

egregious harm by the erroneous jury instruction.

                            Argument and Authorities
                            Point of Error Number One

       Texas Penal Code, Sec. 6.03, Definitions of Culpable Mental States,

provides, in pertinent part, that;

       (a) A person acts intentionally, or with intent, with respect to the
       nature of his conduct or the result of his conduct when it is his
       conscious objective or desire to engage in the conduct or cause
       the result.

       (b) A person acts knowingly, or with knowledge, with respect to
       the nature of his conduct or to circumstances surrounding his
       conduct when he is aware of the nature of his conduct or that the
       circumstances exist. A person acts knowingly, or with knowledge,
       with respect to a result of his conduct when he is aware that his
       conduct is reasonably certain to cause the result.

Appellant’s testimony raised the defense that he did not have a conscious

desire to engage in the alleged conduct, and that he was not aware of the

nature of his conduct. He testified that he “blacked out” after consuming a

large amount of alcohol, and that he did not remember any of the conduct

alleged in the indictment (R.R. 4, 64-65, 73-75).            Persons who are

unconscious or semi-conscious at the time of the alleged act may argue that

they lacked the mens rea necessary for the criminal liability. Mendenhall v.

c:\appeals\dains\brief for appellant                                          11
State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002).

       Trial counsel did not argue this defense during his summation to the jury

at the guilt-innocence stage of trial. Possibly, trial counsel was still fixated on

wanting the evidence to raise the lesser-included offense of “sexual assault,”

that he failed to appreciate that appellant’s testimony raised a viable defense,

as the Court of Criminal Appeals pointed out in Mendenhall v. State. The only

contested issue at trial was the issue of appellant’s mens rea with regard to

the alleged conduct.

       The Texas Court of Criminal Appeals has determined that the offense

of aggravated sexual assault is a “nature-of-conduct” type of offense. See:

Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999); Huffman v. State,

267 S.W.3d 902, 906 (Tex. Crim. App. 2008); Gonzales v. State, 304 S.W.3d

838, 848 (Tex. Crim. App. 2010); Aekins v. State, 447 S.W.3d 270, 286-287

(Tex. Crim. App. 2014).

       Texas Code of Criminal Procedure, Art. 36.14 requires that the trial

court provide to the jury “a written charge distinctly setting forth the law

applicable to the case.” The jury charge should contain only that portion of

the statutory definition corresponding to the culpable mental state proscribed

by the offense. Garza v. State, 794 S.W.2d 497, 500 (Tex. App. Corpus


c:\appeals\dains\brief for appellant                                            12
Christi 1990, pet. ref’d). The type of offense charged will dictate which

portions of the culpable mental state definition should be submitted. Skillern

v. State, 890 S.W.2d 849, 869 (Tex. App. Austin 1994, pet. ref’d). A trial court

errs in failing to limit the definitions to the conduct elements or elements to

which they apply. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App.

1995). In this case the trial court included in the jury charge the statutory

definitions of intentionally and knowingly as applied to a “result-of-conduct”

type offense, and wholly failed to include instructions relating to a “nature-of-

conduct” type offense.

       Trial counsel did not object to the jury charge, neither did he request a

correct definition for “intentionally” and “knowingly” as applied to a “nature of

conduct” offense. Therefore, appellant must show that he suffered egregious

harm by the erroneous jury instruction. Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim .App. 1985). Jury-charge error is egregiously harmful if it: (1)

affects the very basis of the case, (2) deprives the defendant of a valuable

right, or (3) vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d

706, 719 (Tex. Crim. App. 2007).

       In this case, appellant’s testimony made the culpable mental state a

contested issue. The court’s instructions did not give the jury a vehicle by


c:\appeals\dains\brief for appellant                                          13
which it could determine correctly the issue of intent, as applied to appellant’s

conduct. Because intent was the only contested issue, and appellant’s sole

defense, he suffered egregious harm by the erroneous definition of the

intentional and knowing state of mind. Appellant suffered egregious harm by

the failure to define correctly those terms as they applied to the instant case.

       This case is distinguishable from any case in which appellant’s defense

was something other than that he lacked the requisite mens rea to commit the

charged offense. Compare: Reed v. State, 421 S.W.3d 24, 29-30 (Tex. App.

Waco 2013, pet. ref’d) and cases cited therein holding that where no defense

is presented which would directly affect an assessment of mental culpability

for the alleged offense, there can be no egregious harm.

                               Conclusion and Prayer

       WHEREFORE, PREMISES CONSIDERED, appellant prays that the

judgment of conviction be reversed and the cause remanded for new trial.

                                           Respectfully submitted,

                                           /s/ Allen C. Isbell
                                           ALLEN C. ISBELL
                                           202 Travis, Suite 208
                                           Houston, Texas 77002
                                           713/236-1000
                                           Fax: 713/236-1809
                                           STATE BAR NO. 10431500
                                           COUNSEL ON APPEAL

c:\appeals\dains\brief for appellant                                          14
                                Certificate of Service

       I hereby certify that on this 13th day of February, 2015, a true and correct

copy of the foregoing Brief for Appellant has been sent to the District

Attorney's Office, Appellate Division, and to Mr. Jesse Ralph Dains, appellant.


                                             /s/ Allen C. Isbell
                                             ALLEN C. ISBELL


                             Certificate of Compliance

       The undersigned attorney on appeal certifies this brief is computer

generated and consists of 3,816 words. Counsel is relying on the word count

provided by the Word Perfect computer software used to prepare the brief.


                                             /s/ Allen C. Isbell
                                             ALLEN C. ISBELL




c:\appeals\dains\brief for appellant                                            15
