                                                                                 ACCEPTED
                                                                              07-15-0091-CR
                                                               SEVENTH COURT OF APPEALS
                                                                         AMARILLO, TEXAS
                                                                       9/24/2015 6:30:50 PM
                                                                           Vivian Long, Clerk




                                                        FILED IN
                                                 7th COURT OF APPEALS
                                                   AMARILLO, TEXAS
                      IN THE COURT OF APPEALS    9/24/2015 6:30:50 PM
               FOR   THE SEVENTH DISTRICT OF TEXAS VIVIAN LONG
                             AT AMARILLO                 CLERK


   ______________________________________________________

         NOS. 07-15-00091-CR; 07-15-00106-CR; 07-15-00107-CR

   ______________________________________________________

                       DANIEL LEE AINSWORTH
                              Applicant
                                 V.
                        THE STATE OF TEXAS
                              Respondent

   _____________________________________________________
     APPEAL FROM POTTER COUNTY COURT AT LAW NO.1
                  POTTER COUNTY, TEXAS

    ____________________________________________________

           BRIEF OF APPLICANT IN SUPPORT OF 11.09 WRIT

    ___________________________________________________

                                     W. BROOKS BARFIELD JR.
                                     ATTORNEY AT LAW
                                     P.O. BOX 308
                                     AMARILLO, TX. 79105
                                     barfieldlawfirm@gmail.com
                                     806.468.9500
                                     806.468.9588 Fax
                                     SBN 00783597
                                     APPLICANT’S COUNSEL

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                  CERTIFICATE OF INTERESTED PERSONS

       Pursuant to Tex. R. App. P. 38.1 (a), I hereby certify that the following

 individuals have an interest in this case. I make these representations i n

 order that the members of this Court may evaluate possible disqualifications

 o r recusal.

 Trial Judge:                             Hon. W.F. “Corky” Roberts
                                          500 S. Fillmore Rm. 401
                                          Amarillo, TX 79101

 State’s Attorney:                         Will Richmond
                                           500 S. Fillmore 301
                                           Amarillo, TX 79101

 Applicant:                                Daniel Lee Ainsworth
                                           TDC#00615301
                                           Telford Unit
                                           3899 Hwy 98
                                           New Boston, TX 75570

 Trial Counsel:                            Pro Se

 Appellate Counsel:                        W. Brooks Barfield Jr.
                                           P.O. Box 308
                                           Amarillo, TX 79105




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                                           TABLE OF CONTENTS

Certificate of Interested Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 3

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  4

Issues Presented for Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       6

SOLE ISSUE: The trial Court erred in granting applicant’s relief as he was being

illegally detained pursuant to §§508.282, 508.2811 Tex. Gov’t. Code in violation

of his rights under Texas Code of Criminal Procedure 1.04, the Fourteenth

Amendment United States Constitution and Article 1 Section 13 Texas

Constitution.

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            8

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 11

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 16

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    17

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            17



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                                     TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES

Morrissey v. Brewer. 408 U.S. 471, 485, 92 S.Ct. 2593,
2602, 33 L.Ed.2d 484 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         16

TEXAS CASES

Ex Parte Jordan, 659 S.W. 2d 827, 828 (Tex Crim. App. 1983) . . . . . . . . . . .                                11

Hoang v. State, 872 S.W. 2d 694, 699 n.9 (Tex. Crim. App. 1993) . . . . . . . . .                                11

Leblanc v. Sate, 826 S.W. 2d 640, 642-643 (Tex. App. Houston [14th]
Dist. 1992 pet. Ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   12

Ex Parte Hargett, 819 S.W. 2d 866-68 (Tex. Crim. App. 1991) . . . . . . . . . . .                                12

Dahesh v. State, 51 S.W. 3d 300 (Tex. App. Houston [14th Dist. 2000) . . . . .                                   13

Ex Parte Okere, 56 S.W. 3d 846, 849 (Tex. App. Ft. Worth 2001) . . . . . . . . .                                 13

State v. Nkwocha, 31 S.W. 3d 817, 820 (Tex. App. Dallas 200, no pet.) . . . . .                                  13

Franklin v. Kyle, 899 S.W.2d 405, 406 n. 1 (Tex.App.-Waco 1995, no pet.) . . 14

In re Friemel, No. 07-08-0216-CV, 2008 WL 2346396, at *1
 (Tex. App. June 4, 2008)(not cited in S.W. 3d) . . . . . . . . . . . . . . . . . . . . . . . . . 14

McCambride v. State, 752 S.W. 2d 418, 422 (Tex. App. Houston [1st]
Dist. 1987, aff’d 778 S.W. 2d 70 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . 15

Fairfield v. State, 610 S.W. 2d 771, 779 (Tex. Crim. App. 1981). . . . . . . . . . . . 15

Ex parte Cordova, 235 S.W.3d 735, 736 (Tex. Crim. App. 2007) . . . . . . . . . . . . 16

Ex Parte Bohannan, 350 S.W. 3d 116,117- 118 (Tex. Crim App. 2011) . . . . . . 16

STATUTES AND RULES


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Texas Rule of Appellant Procedure 11.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rule of Appellate Procedure 11.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Texas Rule of Appellate Procedure 11.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Texas Government Code Section 508.282. . . . . . . . . . . . . . . . . . . . . . . . . 11,14,16

Texas Government Code Section 508.2811. . . . . . . . . . . . . . . . . . . . . . . . . 11,14,16

Texas Code of Criminal Procedure 1.04 . . . . . . . . . . . . . . . . . . . . . . . .      11,14,16

Texas Code of Criminal Procedure 4.01. . . . . . . . . . . . . . . . . . . . . . . . .             15

CONSTITUTIONAL AMENDMENTS

FOURTEENTH AMENDMENT U.S. CONST. . . . . . . . . . . . . . . . . . . . . 11,14,16

TEXAS CONSTITUTION

ARTICLE 1 SECTION 13 TEX.. CONST. . . . . . . . . . . . . . . . . . . . . . . . . 11,14,16




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                     ISSUES PRESENTED FOR APPEAL


SOLE ISSUE:

    The trial Court erred in granting applicant’s relief as he was being illegally

detained pursuant to §§508.282,508.2811 Tex. Gov. Code in violation of his rights

under Texas Code of Criminal Procedure 1.04, the Fourteenth Amendment United

States Constitution and Article 1 Section 13 Texas Constitution.


                         STATEMENT OF THE CASE

      As all three cases involving Applicant’s writ were tried at the same time.

The cause numbers at trial were 141,066-1; 141,094-1, and 141,118-1.

      In the present matter the Clerk’s record shall be cited respective to the

respective cause number. All matters were dealt with simultaneously at both the

trial and appellate levels this response will be made for all three cause numbers.

There are reporter’s records for both the writ hearing and the trial and those shall

be cited as such.

      Applicant did not file a supporting brief with this Court to support his writs.

CR 141,066 vol. 1 pg. 15,57. This Court abated appellate proceedings and ordered

the trial court to conduct a hearing on whether to appoint counsel for the writ

action. Pursuant to this Court’s orders, the trial court conducted a hearing in which

applicant appeared telephonically from prison with appellate counsel, whom had


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been already appointed on the direct appeal. After the conclusion of the hearing

appellate counsel was appointed by the trial court to file a supporting brief for the

writ actions. This Court then reinstated all appellate proceedings.

      Applicant’s counsel filed applicant’s direct appellate brief on September 8,

2015, for the consolidated cases. This brief only pertains to the writ action filed

pro se by applicant.

             Applicant was charged by Information in cause number 141,066-1

with terroristic threat; in cause number 141,094-1 with class “A” assault domestic

violence, and in cause number 141,118-1 with interference with an emergency

telephone call. CR 141,066 pg. 6; CR 141,094 pg. 6; CR 141,118 pg. 6.

      On February 3, 2015, the trial court conducted a writ hearing and denied

relief without announcing its reasons for denial. Applicant was represented by

counsel at this hearing. CR 141,066 vol. 1 15-21,59; CR 141,094 pg. 60; CR 141-

118 vol. 1 pg. 60. RR Writ Hearing vol.1 pg.15.

      On April 27, 2015 a unified bench trial was held. The trial Court found

Applicant guilty in all causes. In cause number 141,066-1, the trial court sentenced

Applicant to one year in jail and a $4000.00 fine, in cause number 141,094-1

Applicant was sentenced to one year in jail and a $4000.00 fine, and in cause

number 141,118-1 Applicant was sentenced to one year in jail and a $4000.00 fine.

CR 141,066 pg. 66-67, CR 141,094 pg. 68-69; CR 141,118 pg. 68-69.


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                           STATEMENT OF FACTS


141-066

       Applicant filed a writ in cause number 141-0061 in paragraph I of the writ

Applicant alleges violations of double jeopardy due to the fact that the case in

cause number 141-006 was the exact case which was originally filed as a felony

and indicted in cause number 68,888-D in the 320th Judicial Court.

      Applicant in paragraph II of the writ complained of an illegal incarceration

due to a parole violation and subsequent “blue warrant” resulting from his charge.

Applicant asserted he was denied his due process rights in that he was not released

once cause number 68,888-D was dismissed.

      The record reflects the Information in cause number 141,066 was filed on

January 2, 2015. Applicant was arraigned on January 7, 2015 and bond was set at

$2000.00 Applicant’s writ was filed on January 27, 2015. CR 141-066 vol.1 pg.15.

      Applicant alleges in paragraph b of the writ alleges that he was not properly

arraigned in violation of Texas Code of Criminal Procedure 14.06. This writ was

received by the trial court on January 26, 2015 and filed with the clerk on February

20, 2015. CR 141,066 vol.1 pg. 41-46.          The record reflects appellant was

arraigned.




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      Applicant’s third contention in paragraph III of the writ was that the

complaining witness filed an affidavit of non-prosecution in cause number 141-

066. CR 141,066 pg.15-18. RR Writ Hearing vol.1 pg.7-8.

      Finally in the prayer appellate cites a violation of Texas Government Code

Section 508.282.

141-094

      Applicant was arraigned in this case on January 14, 2014, and bond was set

at $5000.00. CR 141,094 vol.1 pg.10. Applicant filed his writ with the trial court

on January 10, 2015 and it was filed with the clerk on January 27, 2015. The

allegations in this writ were identical to 141-066 CR 141,094 vol.1 pg.15.

141-118

      Applicant was arraigned on January 20, 2015 and bond was set at $5000.00

CR 141-118 vol.1 pg.10. Applicant filed his writ with the trial court on January 10,

2015 and it was filed with the clerk on January 27, 2015. The allegations in this

writ were identical to 141-066 CR 141,118 vol. 1 pg. 14-21.

WRIT HEARING FEBRUARY 3, 2015

      The trial court conducted a hearing wherein applicant was represented by

counsel. RR vol. 1 pg. 4-5. Applicant advised the trial court at the hearing that he

was being illegally detained in violation of Texas Government Code 508.282 as he

was being held on a blue warrant past 41 days after the felony case was dismissed.


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RR vol. 1 pg. 8-9.      The parole report reflected that applicant had been detained

since July 14, 2015, for the original felony charge of aggravated assault with a

deadly weapon, a period of 150 days at the time of the writ hearing. The felony

was dismissed on December 1, 2015. The parole board had not refiled parole

revocation based on the re-filed misdemeanor charges in January 2015. RR vol. 1

pg.10 CR 141-066 vol. 1 pg. 20-21. Consequently, applicant was being held on a

blue warrant for a non-existent charge.

TRIAL RECORD

        The felony case was dismissed on December 1, 2014. The record reflects

that his felony case was dismissed. CR vol. 1 pg.21. There is nothing in the trial

record to suggest a final disposition was ever made in cause number 68,888-D, nor

did Applicant ever face a trial or plea hearing in cause number 68,888-D. This

issue was actually addressed at the beginning of the bench trial as follows:

        The Defendant: I’m ready as far as—the only issue I have about
        this case is that this was originally a court—a case with an indictment
        and there was an attorney, Darrell Carey. He was the attorney appointed
        on the case.

        The Court: uh-huh.

        The Defendant: Since the case came from the same complainant
        Luis Hernandez, it’s actually the same case. And from my under-
        Standing there’s—under Texas Code of Criminal Procedure 21.26
        I think is the code, states that at the—a filing of an indictment that
        charges a lesser offense that the—there should be a transfer order
        from the district court to the lower court. And I could not find that
        in the file, And I would like that noted—for appellate purposes.
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        Mr. Richmond: Well, your honor, this case wasn’t transferred.
        This case was dismissed and then the Amarillo Police Department
        re-presented it to the county attorney, so it’s not – that statute is
        Not applicable to this case.

        The Court: That’s correct. That will be denied. RR vol.1 pg.9.


                                     ARGUMENT

SOLE ISSUE: The trial Court erred in granting applicant’s relief as he was being

illegally detained pursuant to§ §508.282,508.2811 Tex. Gov. Code in violation of

his rights under Texas Code of Criminal Procedure 1.04, the Fourteenth

Amendment United States Constitution and Article 1 Section 13 Texas

Constitution.


STANDARD OF REVIEW

     Texas Rule of Criminal Procedure 11.09 provides for the filing of a writ in

misdemeanor cases with the county judge in which the misdemeanor has been

charged to have been committed. In the present case applicant properly filed his

writ in the Potter County Court At Law No. 1 Potter County, Texas the trial court

where applicant’s charges were pending. CR 141-066,141,094, 141-118. The

trial court timely set and conducted a hearing as prescribed by Texas Rules of

Appellate Procedure. See 11.10; 11.11; 11.12 11.13, and 11.15. See Ex Parte

Jordan, 659 S.W. 2d 827, 828 (Tex Crim. App. 1983); Hoang v. State, 872 S.W.


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2d 694, 699 n.9 (Tex. Crim. App. 1993) (“[o]ur statutes governing the writ of

habeas corpus relief provide that ‘any person’ may petition for the writ on behalf

of someone unlawfully restrained of his liberty.”); Leblanc v. Sate, 826 S.W. 2d

640, 642-643 (Tex. App. Houston [14th] Dist. 1992 pet. Ref’d). Applicant set forth

specific reasons for his illegal detention in his application.

     In the present case there is no question that applicant was restrained at the time

of the filing of the writ as he was an inmate in the Potter County Detention Center

and is now currently in the Texas Department of Criminal Justice Institutional

division.

      A writ itself is “merely the process by which persons involved are noticed that

the court is considering the issue, parties are physically attached, if necessary and

the response (or the return) is made. Issuance of the writ without delay is required

unless ‘it is manifest. . . that a party is entitled to no relief whatsoever.’ Once the

writ issues the court considers the return, all attached documents, any testimony,

and then either grants or denies the requested relief.” Id.

    The trial court denied relief and now applicant looks to this Court for relief. To

be entitled to relief, a habeas corpus applicant, must establish that he is either

“confined or “restrained” unlawfully at the time the writ application was filed. As

the trial court ruled on the merits of the writ, this Court has jurisdiction to consider

relief for applicant. “When a hearing is held on the merits of an applicant’s claim


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and the court subsequently rules on the merits of that claim, the losing party may

appeal. “ Ex Parte Hargett, 819 S.W. 2d 866-68 (Tex. Crim. App. 1991) See

Dahesh v. State, 51 S.W. 3d 300 (Tex. App. Houston [14th Dist. 2000); Ex Parte

Okere, 56 S.W. 3d 846, 849 (Tex. App. Ft. Worth 2001); Tex. Code Crim. Proc.

11.09, 11.21, 11.22.

    In reviewing a trial judge’s decision to grant or deny relief on a writ of habeas

corpus, the reviewing Court grants almost total deference to a trial judge’s

determination of the historical facts supported by the record, especially when the

fact finding are based on an evaluation of credibility and demeanor. If the

resolution of the ultimate questions turns on legal standards, the Court of Appeals

reviews the trial court’s determinations de novo. Ex Parte Okare 56 S.W. 3d at

854-55.; State v. Nkwocha, 31 S.W. 3d 817, 820 (Tex. App. Dallas 200, no pet.).

    Applicant contends that the trial Court erred on a question of law regarding the

court’s jurisdictional ability to order Appellant’s release as he was being held

unlawfully in violation of statute. The trial court’s ruling had nothing to do with

the credibility or demeanor of any witness. When asked by defense counsel to

make a specific ruling regarding the trial court’s denial of relief based on

jurisdiction, the trial court never ruled that it did not have jurisdiction to make such

an order the Court merely stated: “I’m not practicing law here.” RR vol. 1 pg.21




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    Texas Government Code Section 508.282(a)(1) provides: “[e]xcept as provided

by subsection (b), a parole panel, a designee of the board, or the department shall

dispose of charges against an inmate or person described by Section 508.281(a):

(1) before the 41st day after which: (A) a warrant has issued provided by section

508.251 is executed, if the inmate or person is arrested only on a charge that the

inmate or person has committed an administrative violation of a condition of

release, and the inmate or person is not charged before the 41st day with the

commission of an offense described by Section 508.2811 (2)(B).”

    Applicant asserts the record in this case evidences that the parole board violated

the clear wording of the time limits prescribed in the statute by not releasing the

blue warrant. A “blue warrant” issues for the arrest of a parolee suspected of

violating the terms of his or her parole. See Franklin v. Kyle, 899 S.W.2d 405, 406

n. 1 (Tex.App.-Waco 1995, no pet.); Tex. Gov't Code Ann. §§ 508.251 & 508.252

(Vernon 2004). In re Friemel, No. 07-08-0216-CV, 2008 WL 2346396, at *1 (Tex.

App. June 4, 2008)(not cited in S.W. 3d).


      Applicant contends that the trial court in denying relief based solely on legal

grounds made a ruling in violation of his constitutional rights under Article 1.04

Texas Code of Criminal Procedure, the Fourteenth Amendment to the United

States Constitution and the Texas Constitution Article 1 Section 13.



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    Article 1.04 of the Texas Code of Criminal Procedure requires that “No citizen

of this State shall be deprived of life, liberty, property, privileges or immunities, or

in any manner disenfranchised, except by the due course of law of the land. This

article closely corresponds to the Fourteenth Amendment. McCAmbride v. State,

752 S.W. 2d 418, 422 (Tex. App. Houston [1st] Dist. 1987, aff’d 778 S.W. 2d 70

(TEx. Crim. App. 1989). Article 1 Section 13 of the Texas Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted. . .” Appellant asserts that bail was granted by the

magistrate when he was arraigned on each of his cases. However, due to the illegal

detention pursuant to the blue warrant he was effectively denied bail by the trial

court failing to order the blue warrant’s be released as such his basic fundament

rights to due course of law was violated.

    Article 4.01(7) Texas Code of Criminal procedure states in pertinent part:

“The following courts have jurisdiction in criminal actions…(7) All county courts

at law with criminal jurisdiction.” “’ Jurisdiction is comprised not of the ‘place’ of

prosecution, but the power of the court over the ‘subject matter’ of the case,

conveyed by statute or constitutional provision coupled with ‘personal’ jurisdiction

over the accused, which is invoked in felony prosecutions, by the filing of

sufficient indictment or information if indictment is waived.” Fairfield v. State,

610 S.W. 2d 771, 779 (Tex. Crim. App. 1981).


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    In Morrissey v. Brewer, the Supreme Court held that due process requires that a

preliminary hearing be held “as promptly as convenient” after a parolee has been

arrested to “determine whether there is probable cause or reasonable ground to

believe that the arrested parolee has committed the acts that would constitute a

violation of parole conditions.” 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33

L.Ed.2d 484 (1972). Ex parte Cordova, 235 S.W.3d 735, 736 (Tex. Crim. App.

2007); Ex Parte Bohannan, 350 S.W. 3d 116,117- 118 (Tex. Crim App. 2011).


        The county court at law was conferred jurisdiction both over the person of

applicant and over the subject matter before the court in this case. See Tex. Code

Crim. Proc. Art. 4.07. Therefore applicant contends he should have been allowed

an opportunity to post bail and as such his convictions should be reversed or his

case remanded for new trial.


                                   CONCLUSION


     The trial Court erred in granting applicant’s relief as he was being illegally

detained pursuant to §508.282 and 508.2811 Tex. Gov. Code in violation of his

rights under Texas Code of Criminal Procedure 1.04, the Fourteenth Amendment

United States Constitution and Article 1 Section 13 Texas Constitution.




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                                      PRAYER

        Applicant prays that his conviction be reversed or remanded for new trial

and for all other relief the Court deems appropriate.




                                              Respectfully submitted,

                                              /S/ W. Brooks Barfield Jr.
                                              P.O. Box 308
                                              Amarillo, Texas 79105
                                              806.468.9500
                                              806.468.9588 FAX
                                              barfieldlawfirm@gmail.com
                                              ATTORNEY FOR APPLICANT


                       CERTIFICATE OF COMPLIANCE
       I certify that this document brief was prepared with Microsoft Word 7, and
that, according to that program’s word-count function, the sections covered by
TRAP 9.4(i)(1) contain 3,724 words.
                                               /S/ W. Brooks Barfield Jr.


                          CERTIFICATE OF SERVICE


       I certify that a true and correct copy of Applicant’s brief was delivered to the
Potter County Attorney, Potter County Texas; the Potter County Court At Law
No.1, and mailed to Applicant on September 24, 2015.


                                                /S/ W. Brooks Barfield Jr.


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