                                                                                                ACCEPTED
                                                                                            06-15-00057-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                      10/29/2015 5:07:31 PM
                            No. 06-15-0057-CR                                              DEBBIE AUTREY
                                                                                                     CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                 6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS           TEXARKANA, TEXAS
                                                                  10/30/2015 10:44:00 AM
Marcus Leslie,                                                        DEBBIE   AUTREY
                                                                            Appellant
                                                                           Clerk


v.

The State of Texas,                                                              State
                  Appealed from the 5th Judicial District Court
                             Bowie County, Texas




                       BRIEF FOR THE STATE
                  The State Does Not Request Oral Argument

                                            Respectfully submitted:

                                            Jerry D. Rochelle
                                            Criminal District Attorney
                                            Bowie County, Texas
                                            601 Main Street
                                            Texarkana, Texas 75501
                                    By:     Lauren N. Sutton
                                            Assistant District Attorney
                                            601 Main Street
                                            Texarkana, Texas 75501
                                            Texas Bar No. 24079421
                                            Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Marcus Leslie,                              §                    Nos. 06-15-0057-CR
            Appellant                       §
                                            §
v.                                          §
                                            §
The State of Texas,                         §
             State                          §               BRIEF FOR THE STATE
                                            §


                                Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Marcus Leslie

     2. Attorneys for Appellant on appeal:

        Troy Hornsby
        1725 Galleria Oaks Drive
        Texarkana, Texas 75503


     3. Attorneys for Appellant at trial:

        Chad Crowl
        Bowie County Public Defender’s Office



                                                i
4. Attorney for the State of Texas at trial:

   Samantha Oglesby
   Kelley Crisp
   Assistant District Attorneys
   Bowie County, Texas
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on appeal:

   Lauren N. Richards
   Assistant District Attorney
   Texas Bar No. 24079421
   601 Main Street
   Texarkana, Texas 75501
   Lauren.sutton@txkusa.org

6. Presiding Judge at trial:

   The Honorable Bill Miller
   District Court Judge
   5th Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       ii
                                               Table of Contents

Identity of the Parties and Counsel ......................................................................... i-ii

Table of Contents ..................................................................................................... iii

Index of Authorities .............................................................................................. iv-v

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

Reply to Points of Error ............................................................................................. 2

Summary of Argument .......................................................................................... 3-4

Argument.............................................................................................................. 5-16

                   Reply to Point of Error Number One .............................................. 5-13
                   The State’s Notice of Intent to Seek Enhanced Punishment gave
                   the Appellant sufficient notice of the necessary details of the
                   prior felony offense which the State would be using to seek
                   enhanced punishment.


                   Reply to Point of Error Number Two ........................................... 13-16
                   The affirmative deadly weapon finding is not based on a
                   showing the firearm was “used or exhibited during the
                   commission of a felony offense,”and therefore is improper.



Prayer for Relief ....................................................................................................... 16

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

Certificate of Service ............................................................................................... 18




                                                            iii
                                       Index of Authorities

Cases

Brasfield v. State, 30 S.W.3d 502 (Tex. App. –Texarkana 2000, no pet.) .............. 13

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) .......................................... 7

Cooper v. State, 500 S.W.2d 837 (Tex. Crim. App. 1973)..............................9,10,11

Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App.1992) .......................................... 11

Fitzgerald v. State, 722 S.W.2d 817 (Tex. App.—Tyler 1987) .........................14,15

Freda v. State, 704 S.W. 41 (Tex. Crim. App. 1986) .............................................. 10

Gale v. State, 998 S.W.2d 221 (Tex. Crim. App. 1999) .......................................... 15

Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996) ............................................ 7

Hickman v. State, 548 S.W.2dd 736 (Tex. Crim. App. 1977) ................................. 11

Hollins v. State, 571 S.W.2d 873 (Tex. Crim. App. 1978) .................................10,11

Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999) ........................................... 7

Jackson v. Virginia, 443 U.S. 307 (1979)................................................................ 13

Narron v. State, 835 S.W.2d 642 (Tex. Crim. App.1992) ..................................14,15

Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) .................................. 14

Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010)..................................... 10

Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) ................................... 14

Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ........................................ 6

Tyra v. State, 897 S.W.2d 796 (Tex.Crim.App.1995) .............................................14


                                                    iv
Villescas v. State, 189 S.W.2d 290 (Tex. Crim. App. 2006) ...........................9,10,11

Woods v. State, 398 S.W.3d 396 (Tex. App.–Texarkana 2013, pet. ref'd) .............. 15



Texas Code of Criminal Procedure

Tex. Code Crim. Proc. art. 42.12 §3g(a)(2) ............................................................. 14

Texas Penal Code

Tex. Penal Code § 12.42(d) ..................................................................................... 11

Texas Rules of Appellate Procedure

Tex. R. App. Proc. 43.2 ........................................................................................... 15




                                                          v
                                Statement of the Case

      Appellant, Marcus Leslie was found guilty by a jury of unlawful possession

of a firearm by a felony. The jury assessed punishment at fifty (50) years to be

served consecutively in the Texas Department of Criminal Justice- Institutional

Division. The Judge sentenced the Appellant accordingly. Appellant then perfected

appeal to this Honorable Court. He now appeals the punishment verdict of the trial

court on two points of error.




                                          1
                         Reply to Points of Error

                   REPLY TO POINT OF ERROR NUMBER ONE:

      The accomplice witness testimony was sufficiently corroborated by
      other testimony and evidence.


                   REPLY TO POINT OF ERROR NUMBER TWO:

The affirmative deadly weapon finding is not based on a showing the firearm was
“used or exhibited during the commission of a felony offense,”and therefore is
improper.




                                       2
                         Summary of the Argument

                    REPLY TO POINT OF ERROR NUMBER ONE:

      The State’s Notice of Intent to Seek Enhanced Punishment gave the
      Appellant sufficient notice of the necessary details of the prior felony
      offense which the State would be using to seek enhanced punishment.

      In his first point of error, Leslie argues the State’s Notice of Intent to Seek

Enhanced Punishment is defective because it did not include all necessary elements

as required. However, the State’s notice included copies of both judgments which

gave the Appellant proper notice that the second felony offense occurred after the

first felony offense conviction became final. Appellant received constitutionally

adequate notice of the State’s intent to enhance punishment both with the State’s

Notice of Intent to Seek Enhanced Punishment and during the punishment phase of

the trial. The notice sufficiently alleged which specific prior felony convictions

would be introduced. Because notice was given to the Appellant of which prior

felony convictions would be introduced, the enhancement allegations were

properly used to enhance his punishment. Appellant has failed to establish that he

has suffered any harm resulting from the alleged inadequate notice.




                                         3
                    REPLY TO POINT OF ERROR NUMBER TWO:

      The affirmative deadly weapon finding is not based on a showing the
      firearm was “used or exhibited during the commission of a felony
      offense,”and therefore is improper.


      In point of error number two, Appellant argues there is insufficient evidence

to support the affirmative deadly weapon finding in the judgment. A review of

caselaw indicates that because the Appellant was not convicted of both offenses at

trial, the affirmative deadly weapon finding is not based on a showing the firearm

was “used or exhibited during the commission of a felony offense.”




                                        4
                                    Argument

                          Reply to Point of Error One

      The State’s Notice of Intent to Seek Enhanced Punishment gave the
      Appellant sufficient notice of the necessary details of the prior felony
      offense which the State would be using to seek enhanced punishment.


      In point of error number one, the Appellant argues that the State’s notice of

enhancement is defective because it does not allege that the second felony was

committed after the first felony conviction became final. However, the State

provided sufficient notice to the Appellant that it would be seeking enhanced

punishment and also the necessary details of the prior felony offenses which the

State would be using to enhance punishment.

                           Argument and Authorities


      The indictment for Unlawful Possession of a Firearm by a Felon alleged

only one prior felony conviction. But prior to trial, on March 25, 2015, the State

filed a Notice of Intent to Seek Enhanced Punishment,” which alleged as follows:

      4.    Specifically, the State intends to present evidence that, prior to
      the commission of the offenses as set out above, the defendant,
      MARCUS LESLIE, was finally convicted of a felony offense,
      namely, RESIDENTIAL BURGLARY, in cause No. CR-2005-30 in
      the Circuit Court of Miller County, Arkansas, on or about February
      10, 2005; and after the aforementioned felony conviction was final,
      the defendant was finally convicted of the felony offense of THEFT




                                         5
         OF PROPERTY, in cause No. CR-2006-197 in the Circuit Court of
         Miller County, Arkansas, on or about January 9, 2007 (See
         Attachment A).
         (C.R. p. 75).

         The referenced ‘Attachment A’ includes copies of two judgements of

conviction for the prior felony offenses alleged in the Notice. The Notice also

advises that proof of these two prior convictions would increase the range of

punishment in Cause No. 13F1016-005 to any term of not less than twenty-five

years or more than ninety-nine years of life.

         The Appellant points out that the enhancement allegation merely alleges he

was convicted of the second felony offense after his conviction for the first felony

offense became final, instead of alleging the second felony offense was committed

after the conviction for the first felony offense became final.

A. Preservation of Error

         As a general rule, appellate courts will not consider any error which counsel

for the accused could have called, but did not call, to the attention of the trial court

at the time when such error could have been avoided or corrected by the trial

court.1 Furthermore, the objection raised on appeal must be the same as the




1
    Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982).
                                                6
objection raised at trial.2 Where a trial objection does not comport with the issue

raised on appeal, error is not preserved for review and is waived.3

       At trial, the complaint was not that the notice was inadequate, but that the

prior convictions were not final because the Appellant received a suspended

sentence in one of the convictions, and therefore the conviction wasinsufficient to

enhance punishment.

       In Appellant’s Motion to Quash, the basis of his argument was that his first

felony offense did not become final until after the second felony offense had been

committed. (C.R. p. 88). This argument was based on the fact the Appellant was

initially placed on probation in the first felony offense, and for a suspended

sentence to become a final conviction, there must be a revocation and the

defendant has to serve time in the penitentiary. At trial, the Motion to Quash was

addressed and the State argued that the two convictions were out of Arkansas and

“[u]nder the Arkansas Habitual Offender Code, any conviction can be used for

enhancement purposes and under Arkansas case law, they have expressly rejected

a contention that because the defendant was placed on a suspended sentence and

not revoked that that was not a felony conviction that could be used for

enhancement purposes. In the state of Arkansas, at the time the suspended sentence

2
  Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000);
Brasfield v. State, 30 S.W.3d 502, 505 (Tex. App. –Texarkana 2000, no pet.).
3
  Ibarra, 11 S.W.3d at 197; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997); Brasfield, 30 S.W.3d at 505.
                                               7
is handed down, that is the final date of conviction, not when the sentence was

revoked.” (R.R. Vol. 3, p. 78-79).

      The trial court denied the Appellant’s Motion to Quash stating:

             “It appears to the Court that numerous courts of appeals have
      held that – numerous Texas courts of appeals have held that a
      conviction in another state may be used as an enhancement in the state
      of Texas as long as the convictions in the other state or the federal
      system were considered final convictions in the other state or the
      federal system, specifically in Ramos v. State, 351 S.W. 319, which is
      the Amarillo Court of Appeals; Dominique v. State, at 787 S.W.2d
      107, which is a Houston 14th District Court of Appeals; as well as
      Skillern v. State, 890 S.W.2d 849, which is an Austin Court of
      Appeals, have all held that the question under the Penal Code is
      whether or not the foreign jurisdiction would hold that conviction as a
      final conviction. So then the second question becomes whether or not
      in Arkansas a prior conviction that was a probation, where the
      defendant was placed on probation, was a final conviction at the time.
      Based upon the law provided by the state, the Supreme Court of
      Arkansas ruled in Rolark v. State at 772 S.W.2d 588 that the, a
      probation finding in Arkansas would be sufficient to make it a final
      conviction with regard to that state’s enhancement provision.
      Likewise, the Arkansas Court of Appeals, in King v. State, at 969
      S.W.2d 199, further relying on Rolark and Reeves v. State at 564
      S.W.2d 503, I’ve found that the convictions would be a final
      conviction under Arkansas law with regard to enhancement purposes.
      Accordingly, the Court’s going to deny the defendant’s motion and
      allow the state to proceed on its intent to seek enhanced punishment.”
       (R.R. Vol. 3, p. 82-83).

      The Appellant requested a “running objection to the enhancement

paragraphs,” which the trial court noted. (R.R. Vol. 3, p. 83).

      However, not once at trial did the Appellant object to the sufficiency of the

notice itself. The complaint at trial was that one of the convictions the State sought


                                          8
to use for enhancement did not become a final conviction until after the other

felony had been committed. The Appellant’s complaint to the trial court was not

that the notice was deficient. Appellant’s trial objection does not comport with the

issue raised on appeal, therefore he has failed to preserve his claim of an

inadequate notice of enhancement allegations.

B. Standard of Review

       Should this Court determine the Appellant has preserved this point of error

for review, the Notice given by the State was sufficient.

       When the State seeks to enhance a defendant's punishment with evidence of

a prior conviction, “ ‘[t]he accused is entitled to a description of the judgment of

former conviction that will enable him to find the record and make preparation for

a trial on the question of whether he is the named convict therein .... and if possible

show there is a mistake in identity, or that there was no final former conviction or

the like.’”4 “[P]rior convictions used as enhancements must be pled in some form,

but they need not be pled in the indictment—although it is permissible and perhaps

preferable to do so.”5




4
  Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins v. State, 571
S.W.2d 873, 875 (Tex. Crim. App. 1978)).
5
  Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).
                                               9
       This right to notice is rooted in due process.6 Under a due process analysis,

the issue is “whether appellant received sufficient notice of the enhancements so

that he had an opportunity to prepare a defense to them.” 7

C. Application of Law to Facts

       A defendant is entitled to notice of a prior conviction that the State intends

to use for enhancement.8 While proper notice of intent to enhance punishment must

be timely, the notice need not be pled in the indictment to be sufficient, so long as

it is pled “in some form” prior to trial.9 Adequate notice informs the defendant that

the State is seeking a greater penalty than it would seek absent the enhancement

allegations and serves to allow the defendant to show possible defenses, such as a

mistake in identity or that the prior convictions never became final.10

       It is not required that enhancement allegations appear on the face of the

indictment.11 The allegation is not required to be perfect and a substantially correct

allegation may be sufficient.12 It is not necessary to allege enhancements with the

same specificity as used in charging on the primary offense.13 All that is required is

that the defendant receives “some form” of notice of the State’s intent to use prior

6
  Villescas, 189 S.W.3d at 293.
7
  Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).
8
  Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).
9
  Id. at 34.
10
   Hollins v. State, 571 S.W.2d 873, 876 (Tex. Crim. App. 1978).
11
   Brooks, 957 S.W.2d at 34.
12
   See Fitzgerald v. State, 722 S.W.2d 817, 822 (Tex. App.—Tyler 1987), aff’d, 782 S.W.2d 876
(Tex. Crim. App. 1990).
13
   See Freda v. State, 704 S.W. 41, 42 (Tex. Crim. App. 1986).
                                             10
convictions to enhance punishment.14 At a minimum, a defendant is “entitled to a

description of the judgment of former conviction that will enable him to find the

record and make preparation for a trial of the question of whether he is the named

convict therein.”15

           Whether an enhancement allegation is sufficient depends on whether a

defendant could be misled by the erroneous allegation.16 The test is whether the

description is sufficient to enable the defendant to find the record and prepare for

trial.17

           Texas law requires the second felony offense to be committed after the

conviction for the first felony offense becomes final.18 The State’s Notice alleges

that Leslie was convicted of the second felony offense after his conviction for the

first felony offense became final, instead of alleging the second felony offense was

committed after the conviction for the first felony offense became final. (C.R. p.

75). In this case, any alleged error in the enhancement allegations did not mislead

or in any way inhibit Leslie’s preparation of a defense. The description contained

sufficient details to enable Leslie to find the prior convictions.


14
   Brooks, 957 S.W.2d. at 33.
15
   Id.
16
   See Hollins v. State, 571 S.W.2d 873, 877 (Tex. Crim. App. 1978); Cooper v. State, 500
S.W.2d 837, 839 (Tex. Crim. App. 1973).
17
   Villescas v. State, 189 S.W.2d 290, 293 (Tex. Crim. App. 2006) (citing Hollins, 571 S.W.2d at
875)
18
   See Tex. Penal Code § 12.42(d); Hickman v. State, 548 S.W.2dd 736, 737 (Tex. Crim. App.
1977).
                                               11
      Additionally, the State attached copies of the judgements from the two

convictions to the Notice. The judgments both reflect the date the offense occurred

and the date of conviction. (C.R. p. 74). While the notice alleged conviction of the

second offense when it should have alleged commission of the second offense, the

description expressed an explicit allegation of sequence of the prior offenses. The

Appellant could not have been misled that the State was merely alleging multiple

felonies in hopes of proving at least one prior felony conviction. There is no

ambiguity that the State was seeking to invoke Tex. Penal Code § 12.42(d).

Therefore, any error in the notice did not render its description insufficient.

D. Conclusion

      The Appellant’s complaint at trial does not comport with his complaint on

appeal; therefore, the Appellant waived any error regarding notice of enhancement.

However, Appellant received constitutionally adequate notice of the State’s intent

to enhance punishment. Appellant received the State’s Notice of Intent to Seek

Enhanced Punishment and was aware which convictions would be used as

enhancement allegation because the notice identified the offenses of conviction,

trial cause numbers, convicting courts, and dates of conviction. The Notice also

included copies of the judgments of conviction for the two prior offenses. The

State’s Notice of Intent to Seek Enhancement contained an allegation sufficient to

inform Leslie of the State’s intent to establish that the two prior convictions were


                                          12
sequenced. Leslie has failed to allege any defense to the enhancement allegations

that he was prevented from developing.

         For these reasons, Appellant’s first point of error should be overruled.

                                 Reply to Point of Error Two

         The affirmative deadly weapon finding is not based on a showing the
         firearm was “used or exhibited during the commission of a felony
         offense,”and therefore is improper.


         In point of error number two, Appellant argues there is insufficient evidence

to support the affirmative deadly weapon finding in the judgment. A review of

caselaw indicates that because the Appellant was not convicted of both offenses at

trial, the affirmative deadly weapon finding is not based on a showing the firearm

was “used or exhibited during the commission of a felony offense.”

                                 Argument and Authorities

A. Standard of Review

         In reviewing the sufficiency of the evidence, the reviewing court should

apply the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). This

standard requires a reviewing court to examine all the evidence in the light most

favorable to the verdict to determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.19



19
     443 U.S. 307, 319 (1979).
                                             13
B. Application of Law to Facts

       An affirmative finding of a deadly weapon pursuant to section 3g(a)(2) of

Texas Code of Criminal Procedure article 42.12 is based on a showing that the

deadly weapon “was used or exhibited during the commission of a felony offense

or during immediate flight therefrom.”20 The “use” of a deadly weapon in the

context of an affirmative deadly weapon finding includes simple possession if such

possession facilitates the associated felony.21 “[I]n order to ‘use’ a deadly weapon

for affirmative finding purposes, the weapon must be utilized to achieve an

intended result, namely, the commission of a felony offense separate and distinct

from ‘mere’ possession.”22 “[A] deadly-weapon finding for a felony offense must

contain some facilitation connection between the weapon and the felony. The

deadly weapon must, in some manner, help facilitate the commission of the

felony.”23

       In this case, the evidence at trial was that Leslie was a friend of Johnny

Booth and that Leslie took a firearm out of Booth’s home without Booth’s

permission. (R.R. Vol. 3, p.155). In Leslie’s interview he admitted to possessing

20
   See Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2).
21
   Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (emphasis added); see Tyra v.
State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (“[M]ere possession of [deadly] weapon
without putting it to any use or purpose whatsoever does not [permit an affirmative deadly
weapon finding].”).
22
   Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992); see Ex parte Petty, 833 S.W.2d
145 (Tex. Crim. App. 1992), abrogated on other grounds by Ex parte Nelson, 137 S.W.3d 666
(Tex. Crim. App. 2004).
23
   Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013)
                                              14
the firearm, but claimed that Booth had given him the firearm. (R.R. Vol. 3, p. 186;

State’s Exhibit 4). Leslie gave multiple excuses for why he was in possession of

the firearm. (R.R. Vol. 3, p. 186-87; State’s Exhibit 4).

       The trial court appears to have based its findings solely on Appellant’s mere

possession of the firearm. When applied to the special issue regarding the use or

exhibition of a deadly weapon during the commission of a felony offense, the

question facing the reviewing Court is whether a rational trier of fact could find

beyond a reasonable doubt that the mere possession of firearms facilitated the

associated felony.24

       The Texas Court of Criminal Appeals has held that, where the associated

felony is unlawful possession of a firearm by a felon, an affirmative deadly

weapon finding cannot be based solely on the defendant's possession of the

firearm.25 Therefore, the affirmative deadly weapon finding pertaining to

Appellant’s conviction for the offense of unlawful possession of a firearm by a

felon is inappropriate.

       The reviewing court can modify an incorrect judgment and make the record

“speak the truth” when we have the necessary data and information to do so.26



24
   Gale v. State, 998 S.W.2d 221, 223–24 (Tex. Crim. App. 1999).
25
   Narron v. State, 835 S.W.2d 642 (Tex. Crim. App.1992); Ex parte Petty, 833 S.W.2d 145
(Tex. Crim. App. 1992).
26
   Tex. R. App. Proc. 43.2 (b); see Woods v. State, 398 S.W.3d 396, 406 (Tex. App.–Texarkana
2013, pet. ref'd).
                                             15
      The record reflects an affirmative deadly weapon finding which this court

may modify, and as modified, this Court should affirm the judgment.




                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.

                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819


                                               __/s/Lauren N. Sutton____________
                                         By:   Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819

                                               Attorneys for the State
                                          16
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 3,083 words, exclusive of the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.



                                               __/s/Lauren N. Sutton__________________
                                               Lauren N. Sutton




                                          17
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Mr. Troy Hornsby, Attorney for Appellant, on

this the 29th day of October, 2015.



                                             __/s/Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        18
