                                                                                 ACCEPTED
                                                                            06-14-00159-CR
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       4/11/2015 6:33:02 PM
                                                                            DEBBIE AUTREY
                                                                                     CLERK

               Nos. 06-14-00159-CR; and 06-14-00160-CR

                                                            FILED IN
                                                     6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                                                     4/13/2015 9:07:00 AM
                                                         DEBBIE AUTREY
                                                             Clerk


                   IN THE COURT OF APPEALS
        FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA

                       THOMAS LLOYD TAUNTON
                              Appellant

                                   v.

                          THE STATE OF TEXAS
                                Appellee



  ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF FANNIN
                       COUNTY, TEXAS
          THE HON. LAURINE BLAKE, JUDGE PRESIDING
        TRIAL COURT CAUSE NOS. CR-12-24098, CR-13-24755


                           APPELLANT’S BRIEF

Oral argument is hereby waived    STEVEN R. MIEARS
                                    State Bar No. 14025600
                                    211 North Main
                                    Bonham, Texas 75418
                                    Tel: 903-640-4963
                                    Fax: 903-640-4964
                                    Email: SteveMiears@msn.com




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                                          TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... …..2

IDENTITY OF PARTIES AND COUNSEL………………………………………..3

INDEX OF AUTHORITIES……………....................................................................4

STATEMENT OF THE CASE ……………………………………………………7

STATEMENT REGARDING ORAL ARGUMENT……………………………... 7

ISSUES PRESENTED......................................................................................................... 8

STATEMENT OF FACTS……………………………………………………….. 8

SUMMARY OF APPELLANT’S ARGUMENT…………………………………… 9

ISSUE ONE:Did the trial court err in denying the Appellant’s motion to suppress? 9

ARGUMENTS AND AUTHORITIES ……………………………… ………….10

PRAYER............................................................................................................... 19
CERTIFICATE OF WORD COUNT ...............................................................21
CERTIFICATE OF SERVICE ……………………………………………………21
APPENDIX ONE: MOTION TO SUPPRESS

APPENDIX TWO: AFFIDAVITS AND WARRANTS
APPENDIX THREE: WARRANT RETURNS/LAB SHEETS




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                           Identity of Parties and Counsel

      Pursuant to the Rules of Appellate Procedure, the following is a complete

list of the names and addresses of all parties to the trial court’s final judgments and

their counsel in the trial court, as well as appellate counsel, so the members of the

court may at once determine whether they are disqualified to serve or should

recuse themselves from participating in the decision of the cases and so the Clerk

of the Court may properly notify the parties to the trial court’s final judgments or

their counsel, if any, of the judgments and all orders of the Court of Appeals.


 Trial                     HONORABLE JUDGE LAURINE BLAKE
 Court ................... 336TH JUDICIAL DISTRICT COURT,

 Appellant ....................... THOMAS LLOYD TAUNTON
                                        William P. Clements Unit
                                        9601 Spur 591
                                        Amarillo, TX 79107-9606

 Steven R. Miears (Counsel on Appeal) SBN 14025600
                                   211 North Main
                                   POB 736
                                   Bonham, Texas 75418
                                   903 640 4963 fax: 903 640 4964
                                   SteveMiears@msn.com


 Appellee....................................... THE STATE OF TEXAS
                                           Richard E. Glaser SBN 08000000
                                           Criminal District
                                           Attorney 101 East Sam
                                           Rayburn Drive Bonham,
                                           Texas 75418


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                            INDEX OF AUTHORITIES



Statutes, Codes, Constitutional Provisions, and Rules

US Const. Amend. 4. ……………………………………………………………….10

Tex. Const. Art. I, § 9………………………………………………………………..10

Tex. Code Crim. Proc. art. 38.23 ……………………………………………………10



Cases


Arizona v. Gant, 556 U.S. 332 (U.S. 2009). . …………………………………….16


Delgado v. State, 718 S.W.2d 718 (Tex. Crim. App. 1986)……………………… 18


Florida v. Wells, 495 U.S. 1 (1990)………………………………………………..18


Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007)………………………….16


Illinois v. Gates, 462 U.S. 213 (U.S. 1983)…………………………………………… 11


Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012)……………………………17


Moskey v. State, 333 S.W.3d 696 (Tex. App. Houston 1st Dist. 2010)………………18


Richards v. State, 150 S.W.3d 762(Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) .18


South Dakota v. Opperman, 428 U.S. 364 (1976)……………………………………..18


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State v. Huddleston, 387 S.W.3d 33 (Tex. App. Texarkana 2012)…………………….11


Trujillo v. State, 952 S.W.2d 879 (Tex. App.—Dallas 1997, no pet.)………………….18


Uballe v. State, 439 S.W.3d 380(Tex. App.—Amarillo 2014, pet. ref'd). ……………... 18




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                 Nos. 06-14-00159-CR; and 06-14-00160-CR

                    IN THE COURT OF APPEALS
         FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA

                         THOMAS LLOYD TAUNTON
                                 Appellant
                                    v.
                           THE STATE OF TEXAS
                                 Appellee



  ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF FANNIN
                       COUNTY, TEXAS
          THE HON. LAURINE BLAKE, JUDGE PRESIDING
        TRIAL COURT CAUSE NOS. CR-12-24098; CR-13-24755


                             APPELLANT’S BRIEF


     TO THE HONORABLE COURT OF APPEALS FOR THE SIXTH

DISTRICT OF TEXAS.


      COMES NOW, THOMAS LLOYD TAUNTON, Appellant, in the above

styled and numbered causes, by and through Steven R. Miears, his undersigned

attorney of record, and files this Brief on Appeal, and requests that the Court

sustain his points of error, render judgments of acquittal; or, alternatively, reverse

the judgments, and remand the cases for a new trial. The Clerk’s record in the

capital murder case will be referenced as “CRCM”. The Clerk’s record in the


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 murder case will be referenced as “CRM”. The reporter’s record will be referenced

 as “RR”.




                         STATEMENT OF THE CASE
       These two cases are appeals of convictions by a jury of the Appellant for

 the charges of capital murder and murder. The State did not seek the death

 penalty in the capital murder case. (CRCM pp. 51-52) The Appellant was

 sentenced to life without parole on the capital murder case, (CRCM p. 157) and

 to life in prison on the murder case. (CRM p 134) The cases were consolidated

 for trial. (CRCM pp. 130 – 131) (CRM pp. 102 – 103) The issue on appeal is the

 same in both cases.



              STATEMENT REGARDING ORAL ARGUMENT

     Oral argument is not requested.



                              ISSUE PRESENTED

     ISSUE:       Did the trial court err in denying the Appellant’s motion to

suppress?




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                              STATEMENT OF FACTS

      After the jury was selected the trial court heard the Appellant’s motion to

suppress evidence filed in both cases. (CRCM pp 104- 127) (CRM pp. 76 – 99) (RR

Vol. 3 pp. 6 – 13.) (RR Volume 12 at Reporter’s Record Exhibit 2) (Also see RR Vol.

3 pp. 110 – 115 in regards to marking of complete copies of exhibits marked as R-2

and granting of a continuing objection.) The motion raised the constitutional issue that

the affidavits supporting the warrants for the searches of the Appellant’s truck, trailer

and rental car in Louisiana did not state sufficient information for the issuing

magistrate to find probable cause. At the hearing both sides waived the presentation of

any testimony concerning the issue, and agreed that the issue was confined to an

analysis of the four corners of the affidavits. (RR Vol. 2 p. 13)


      The court denied the motion. (RR Vol. 3 p. 13) A copy of the motion to suppress

is attached as Appendix 1. The affidavits and search warrants are attached as Appendix

2. The exhibits identifying the items seized are attached as Appendix 3. The Appellant

requested findings of fact and conclusions of law. (CRCM p. 180 – 181) (CRM p. 164

- 165) The State drafted proposed findings of fact and conclusions of law. (CRCM pp.

189 – 190.) (CRM 167 – 169.) The trial court adopted in toto those requests and

conclusions. (CRCM p. 192) (CRM p. 171)




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                      SUMMARY OF APPELLANT’S ARGUMENTS

       The trial court erred in denying the motion to suppress. The affidavits supporting

the search warrants did not state facts sufficient to establish probable cause. Specifically,

they lacked any information to form the basis to believe: (1) that the offenses of capital

murder or murder had been committed; or, (2) that the items which were to be searched

for constituted evidence of those offenses or evidence that Appellant had committed those

offenses; or, (3) that the items to be searched for were likely to be found in the Appellant’s

pickup truck, trailer, or rental car.

       The State’s alternative argument that the searches were lawful as warrantless

searches also fails. The Appellant was under arrest at the time the vehicles and trailer were

searched, and not in a position to pose any threat to officers. Further, no evidence was

presented which gave the trial judge any reason to conclude that the officers had any

reason to believe that the truck, trailer or car contained evidence of a crime. The trial

court’s written finding of fact to the contrary is not supported by any evidence, and on

appeal should be disregarded. No evidence was presented that any exigency existed

necessitating the searches. And, finally, no evidence was presented that the searches were

justified as inventory searches.

       ISSUE ONE: Did the trial court err in denying the Appellant’s motion to suppress?




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                           ARGUMENT & AUTHORITIES


       The constitution of the United States guarantees that, “The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” US Const. Amend. 4. Similarly, the Texas constitution

states that, “The people shall be secure in their persons, houses, papers and possessions,

from all unreasonable seizures or searches, and no warrant to search any place, or to seize

any person or thing, shall issue without describing them as near as may be, nor without

probable cause, supported by oath or affirmation.” Tex. Const. Art. I, § 9.


       The Texas Code of Criminal Procedure corrects violations of those laws by

mandating that, “No evidence obtained by an officer or other person in violation of any

provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws

of the United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.” Tex. Code Crim. Proc. art. 38.23. Similarly, the U.S. Supreme

Court has held that, “all evidence obtained by searches and seizures in violation of the

Constitution is, by that same authority, inadmissible in a state court.” Mapp v. Ohio, 367

U.S. 643, 655 (U.S. 1961).




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         For a search warrant to be legally issued an affidavit must provide the magistrate

with a substantial basis for determining the existence of probable cause. Wholly

conclusory statements are insufficient. Such “bare bones” affidavits fail constitutional

scrutiny. The magistrate’s signature is not to be a rubber stamp of the summary

conclusions of others. As stated by the U.S. Supreme Court, “In order to ensure that such

an abdication of the magistrate's duty does not occur, courts must continue to

conscientiously review the sufficiency of affidavits on which warrants are issued.” Illinois

v. Gates, 462 U.S. 213, 239 (U.S. 1983).


                In State v. Huddleston, 387 S.W.3d 33, 36-37 (Tex. App. Texarkana 2012),

this Court reviewed the law on the requirements of a search warrant affidavit. This Court

wrote:


                Although we grant great deference to the determination of a magistrate
                issuing a warrant, we do not grant that same degree of deference to a
                reviewing trial court. A motion to suppress is normally reviewed based on a
                bifurcated standard which (1) grants deference to the trial court's
                determinations of historical facts that are based on an evaluation of
                credibility and (2) reviews de novo the trial court's application of the law.
                However, when the trial court is determining probable cause to support the
                issuance of a search warrant, there are no credibility determinations, rather
                the trial court is constrained to the four corners of the affidavit. Because
                probable cause to support the issuance of the warrant is determined from the
                "four corners" of the affidavit alone, there are no credibility choices to be
                made by the trial court and we review de novo the court's ruling. (Internal
                citations omitted.)



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                An application for a search warrant must be supported by an affidavit setting
                forth facts establishing probable cause. To justify the issuance of a search
                warrant, the supporting affidavit must set forth facts sufficient to establish
                probable cause: (1) that a specific offense has been committed, (2) that the
                specifically described property or items that are to be searched for or seized
                constitute evidence of that offense or evidence that a particular person
                committed that offense, and (3) that the property or items constituting
                evidence to be searched for or seized are located at or on the particular
                person, place, or thing to be searched. The facts contained in the probable
                cause affidavit must be sufficient to justify a conclusion that the object of the
                search is probably on the premises at the time the warrant is issued. The
                determination of the sufficiency of an arrest or search warrant is limited to
                the four corners of the affidavit. The issue is not whether there are other facts
                that could have, or even should have, been included in the affidavit; we focus
                on the combined logical force of facts that are in the affidavit, not those that
                are omitted from the affidavit. (Internal citations omitted.)

                The warrant must contain "sufficient information" to allow the issuing
                magistrate to determine probable cause because the magistrate's action
                cannot be a mere ratification of the bare conclusions of others. As explained
                in Wise v. State: The task of the issuing magistrate is simply to make a
                practical, common-sense decision whether, given all the circumstances set
                forth in the affidavit, including the "veracity" and "basis of knowledge" of
                persons supplying hearsay information, there is a fair probability that
                contraband or evidence of a crime will be found in a particular place.
                (Internal citations omitted.)

                State v. Huddleston, 387 S.W.3d 33, 36-37 (Tex. App. Texarkana 2012).

       The affidavits in support of the search warrants set forth the following:


       1. One affiant was a peace officer with the DeSoto Parish Sheriff’s office for the

State of Louisiana. The other affiant was a Texas Ranger. On January 18, 2012, Ranger



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Oliver began investigating the complaint(s) that Harold Harpst, Willis Sue Harpst and

Regina Taunton were murdered in Fannin County, Texas.


       2. On January 18, 2012, a justice of the peace in Texas had issued a warrant for the

arrest of Appellant for capital murder.


       3. On January 19, 2012, United States Marshals Service personnel in Shreveport,

Louisiana received information that Thomas Taunton was wanted by Texas authorities for

Capital Murder, and that he was possibly traveling through Louisiana en route to

Mississippi.


       4. Marshals Service personnel notified law enforcement agencies throughout

Louisiana to be on lookout for Taunton who was possibly traveling in a white Ford pickup

truck pulling a trailer.


       5. Appellant was located and arrested at the Jimmy Granger Ford Automobile

Dealership in Stonewall, DeSoto Parish Louisiana.


       6. Law enforcement officers found a white Ford pickup truck and a box trailer, both

registered to Thomas Taunton of Leonard, Texas at the dealership.


       7. On January 18, 2012, Taunton had driven his Ford pickup truck to Jimmy

Granger Ford where he had left it to be repaired.




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       8. Jimmy Granger Ford personnel had loaned Taunton a passenger vehicle to use

while his truck was being repaired.


       9. Prior to requesting the warrants, law enforcement officers had towed Appellant’s

truck and trailer to a locked storage building.


       The affidavits also contained the statement that Ranger Oliver had, “obtained

overwhelming evidence and information that Thomas Taunton was the one who

murdered them.” No facts were given to back this statement up. Based upon only these

“bare bone” assertions, and a wholly conclusory statement, a district judge presiding over

the 42nd Judicial District Court, Webster Parish, Louisiana, issued search warrants for

Appellant’s truck, trailer, and rental car. The affidavits fail all three requirements identified

in Huddleston. At the hearing on the motion to suppress, even the prosecutor conceded

that the affidavit suffered from the fatal moniker of being a “bare bones” affidavit. (RR

Vol. 3 p. 11)


       First, no facts were set forth as to why the magistrate should have believed that

Harold Harpst, Sue Harpst, or Regina Taunton had been murdered. Only conclusory

statements were given that their murders were being investigated. No information was

given as to why it should be believed that they were deceased, or even that they were

missing. No information is given to indicate why it should be believed that they were the

victims of homicides. No information is given as to why Appellant was a suspect. Second,


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the affidavits described eleven categories of items sought, including blood, firearms,

clothing, cleaning supplies, carpet, check books, cell phones, credit and debit cards, and

documents showing where Appellant spent the night of January 18, 2012, and, generally

“any unknown item(s) of evidentiary importance.” No facts whatsoever were given which

described how or why any of these items sought might constitute evidence of a crime.

Third, no facts are given as to why it could be believed that Appellant’s truck, trailer, or

rental vehicle might contain any of the items to be searched for.


       The affidavits’ assertion that a Texas judge had already issued a warrant for

Appellant’s arrest did not provide any basis to conclude that evidence of a crime was

likely to be found in his truck or trailer. The affidavit supporting the arrest warrant,

assuming there was one, was not attached to these search warrant affidavits. And,

whatever facts which may have been set forth in the arrest warrant affidavit were

unknown to the magistrate reviewing the affidavits for the search warrants.


       Conceding that the validity of the search warrants was problematic, the State

suggested during its argument at the suppression hearing that the searches were

nevertheless valid as warrantless searches incident to Appellant’s arrest. (RR Vol. 3 pp.

10-11) This rationale was parroted in finding of fact number 4, which was authored by

the State, and embraced in toto by the trial court: “Officers also properly searched the

truck and trailer because at the time of arrest, they had reason to believe the truck and

trailer contained evidence of the offense for which the defendant was arrested.” (CRCM p.
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190) (CRM p. 168) The law applicable to warrantless searches of vehicles, however,

states that the State bears the burden of proving the existence of an exception to the

warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007). Nothing in the record factually supports a finding that the State met this burden.


        Absolutely no testimonial evidence supporting an exception to the requirement of a

warrant was ever presented at the hearing. The issue of the legality of the searches was

submitted to the court solely upon the question of the validity of the affidavits to support

the warrants. Only in argument to the court did the State propose the idea of the searches

being valid as warrantless searches. At the hearing, the prosecution suggested to the court

that the law of Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485

(2009) was applicable.


       In fact, what the Court held in Gant, does not support the State’s contention. In

Gant the Court held that, “Police may search a vehicle incident to a recent occupant's

arrest only if the arrestee is within reaching distance of the passenger compartment at the

time of the search or it is reasonable to believe the vehicle contains evidence of the offense

of arrest. When these justifications are absent, a search of an arrestee's vehicle will be

unreasonable unless police obtain a warrant or show that another exception to the warrant

requirement applies.” Arizona v. Gant, 129 S. Ct. 1710, 1723-1724 (U.S. 2009).




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       No facts were submitted at the hearing to support any reason to believe that there

was any evidence associated with the crimes to be found in any of the vehicles. Also, there

were no facts admitted into evidence showing that the Appellant had been a recent

occupant of either the vehicle or the trailer at the time of the searches. Nor was there any

evidence that he was inside either of the vehicles or the trailer at the time of the arrest. In

fact, the affidavits make it clear that prior to them being searched both the pickup truck

and the trailer were moved by law enforcement from the dealership to a secure storage

facility. (See affidavits’ in their concluding paragraphs.) In fact, the trial court made a

finding of fact that, “At the time of the search, the defendant was in custody and did not

have access to or possession of the truck.” (See finding number 6, CRCM p. 189 and

finding number 6 CRM p. 167.) The affidavits do clearly state that the truck and trailer

were towed to a secure storage garage after Appellant’s arrest, and prior to the warrants

being sought. There is no evidence to support the contention that these were lawful

warrantless searches.


       The trial court’s finding of as a historical fact that the officers “had reason to believe

the truck and trailer contained evidence of the offense for which the defendant was

arrested” is, therefore, inconsistent with the record. On appeal, findings should be

disregarded when they are unsupported by the record, even when that record is viewed in

a light most favorable to the trial court's ruling. See Miller v. State, 393 S.W.3d 255, 263

(Tex. Crim. App. 2012). Such is the case here.

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       Nor could the searches be justified as lawful inventory searches. The State bears the

burden of proving that an impounding of the vehicles occurred, and the subsequent

inventory searches were lawful. Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App.

1986); Moskey v. State, 333 S.W.3d 696 (Tex. App. Houston 1st Dist. 2010). To satisfy

this burden it was incumbent upon the State to prove that the vehicles and trailer had been

in fact impounded, and inventoried pursuant to standardized criteria or an established

policy. South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 49 L. Ed. 2d 1000

(1976); Trujillo v. State, 952 S.W.2d 879, 882 (Tex. App.—Dallas 1997, no pet.); Moskey

id., at 700.


       An inventory search must be designed to produce an inventory of the vehicle's

contents and must not be a "ruse for a general rummaging in order to discover

incriminating evidence." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1

(1990); see also Richards v. State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref'd) (en banc). "The individual police officer must not be allowed so

much latitude that inventory searches are turned into 'a purposeful and general means of

discovering evidence of crime.” Uballe v. State, 439 S.W.3d 380, 384 (Tex. App.—

Amarillo 2014, pet. ref'd) (quoting Wells, 495 U.S. at 4).


       Here, no evidence was admitted to establish that the vehicles and trailer had been

impounded. According to the affidavits they had been moved to a locked storage facility.

However, they were not searched until after the warrants had been signed. No evidence
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was admitted to show that it was necessary to inventory the vehicles. No evidence was

admitted that there was an inventory policy or procedure, or that it was followed. These

were not inventory searches. No argument at the hearing was made that these were

inventory searches.


       In conclusion, the trial court should have granted the motion. The items seized

should have never been seen by the jury, or discussed in their presence. The results of any

testing of that evidence should have likewise been excluded. The significance of the

evidence should not have been argued to the jury. The effect of this pre-trial ruling

on the mind-set of the Appellant to absent himself from most of the proceedings, only to

appear and decide to testify, can’t be conjured by analysis of the other evidence. And,

without entering the conscious and sub-conscious minds of each juror, it cannot be said

that, beyond a reasonable doubt, this evidence did not in some way contribute to the

verdicts.


                                         Prayer


       WHEREFORE, PREMISES CONSIDERED, APPELLANT PRAYS that

this Court sustain the Appellant’s point of error, find the error was not harmless

beyond a reasonable doubt, reverse the convictions, and remand these cases to the

trial court for a new trial on guilt or innocence.




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               RESPECTFULLY SUMITTED,


                   _____________________
                             Steven R. Miears
                               211 North Main
                        Bonham, Texas 75418
                                        eMail:
                        stevemiears@msn.com
                            Tel. 903-640-4963
                           Fax: 903-640-4964
                 State Bar Card No. 14025600
                        Lawyer for Appellant




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                             Certificate of Word Count

       Counsel for the Appellant certifies that the word count of this brief is 3,929

words and within the limitations for length of briefs on appeal.

                                                         _________________________
                                                                    Steven R. Miears


                                Certificate of Service

         This is to certify that a true and correct copy of the above and foregoing

 Appellant’s Brief on Appeal was hand-delivered to Richard E. Glaser, Fannin

 County Criminal District Attorney; 101 East Sam Rayburn Drive; Bonham, Texas

 75418; on February 12, 2015; and, that a copy was mailed to the Appellant,.




                                            _________________________________
                                                                    Steven R. Miears




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