                                                                         ACCEPTED
                                                                     13-15-00022-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                8/20/2015 2:58:06 PM
                                                              CECILE FOY GSANGER
                                                                              CLERK

           CAUSE NO. 13-15-00022-CR

           IN THE COURT OF APPEALS        FILED IN
                                  13th COURT OF APPEALS
        FOR THE THIRTEENTH DISTRICT,
                               CORPUS CHRISTI/EDINBURG, TEXAS
      AT CORPUS CHRISTI/EDINBURG, TEXAS
                                   8/20/2015 2:58:06 PM
                                      CECILE FOY GSANGER
        *******************************     Clerk


                OFELIA LARIOS

                       VS.

              THE STATE OF TEXAS

  *********************************************
  APPEAL OF CAUSE NO. CR-2107-14-C FROM THE
139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
  *********************************************

            BRIEF FOR THE STATE


  ********************************************
                         RICARDO RODRIGUEZ, JR.
                         CRIMINAL DISTRICT ATTORNEY
                         HIDALGO COUNTY, TEXAS

                         THEODORE C. HAKE, ASSISTANT
                         CRIMINAL DISTRICT ATTORNEY
                         HIDALGO COUNTY, TEXAS

                         STATE BAR NO. 08716800

                         HIDALGO COUNTY COURTHOUSE
                         EDINBURG, TEXAS 78539
                         TELEPHONE #: (956) 318-2300
                         TELECOPIER #: (956) 380-0407
                         E-Mail: ted.hake@da.co.hidalgo.tx.us

                        ATTORNEYS FOR APPELLEE


                        i
                            CAUSE NO. 13-15-00022-CR


                            IN THE COURT OF APPEALS
                         FOR THE THIRTEENTH DISTRICT
                       AT CORPUS CHRISTI/EDINBURG, TEXAS



OFELIA LARIOS


VS.


THE STATE OF TEXAS


                   CERTIFICATE OF INTERESTED PARTIES

       The undersigned attorney submits that the individuals listed below are parties
to the instant case:

       (1)    Appellant is this case is Ofelia Larios, whose address, according to
              bond information in this case, is 5315 East Texas Road, Edinburg,
              Texas 78539.

       (2)    Appellate counsel for Appellant is the Honorable Rolando Garza,
              whose office address is Rolando Garza, Attorney at Law, 310 West
              University Drive, Edinburg, Texas 78539.

       (3)    Appellant’s trial attorney was the Honorable L. Aron Pena, whose
              office address is, the Law Offices of L. Aron Pena, 600 South
              Closner, Edinburg, Texas 78539.

       (4)    Appellee in this case is the STATE OF TEXAS, represented by and
              through the Office of the Criminal District Attorney of Hidalgo
              County, Texas.



                                          ii
(5)   the trial prosecutor in this case was Assistant Criminal District
      Attorney Orlando Javier “O.J.” Esquivel, who works at the Office of
      the Criminal District Attorney, Hidalgo County Courthouse, Edin-
      burg, Texas 78539.

(6)   Appellate attorneys for the State are Hidalgo County Criminal Dis-
      trict Attorney Ricardo Rodriguez, Jr. and Assistant Criminal District
      Attorney Theodore C. Hake, who work at the same address as Mr.
      Esquivel.


                                       Respectfully submitted,


                                       /s/ Theodore C. Hake

                                   THEODORE C. HAKE, ASSISTANT
                                   CRIMINAL DISTRICT ATTORNEY
                                   HIDALGO COUNTY, TEXAS




                                 iii
                                          TABLE OF CONTENTS


INDEX OF AUTHORITIES ..................................................................................... ii

NOTE REGARDING FORM OF CITATION TO THE RECORD .....................viii

STATEMENT CONCERNING ORAL ARGUMENT .......................................... ix

STATEMENT OF THE CASE ............................................................................ ….1

STATEMENT OF FACTS ....................................................................................... .1


COUNTERPOINT ONE (In Response to Issue Presented No. 1)

         The evidence in this case is legally sufficient to support
         Appellant’s conviction for possession of marihuana, in
         an amount of 50 pounds or less, but more than 5 pounds ............................ 10

FACTS PERTINENT TO COUNTERPOINT ONE .............................................. 10

SUMMARY OF ARGUMENT IN SUPPORT OF
  COUNTERPOINT ONE .................................................................................. 14

ARGUMENT AND AUTHORITIES IN SUPPORT OF
  COUNTERPOINT ONE .................................................................................. 15

PRAYER .................................................................................................................. 46

CERTIFICATE OF COMPLIANCE WITH WORD LIMITS .............................. 47

CERTIFICATE OF SERVICE................................................................................ 47




                                                               i
                               INDEX OF AUTHORITIES


CASES


    United States Supreme Court


          Anderson v. Charles,
          447 U.S. 404, 100 S.Ct.
        2180, 65 L.Ed.2d 222 (1980) ................................................................. 26

          Doyle v. Ohio,
          426 U.S. 610, 96 S.Ct.
        2240, 49 L.Ed.2d 91 (1976) ................................................................... 26

          Fletcher v. Weir,
          455 U.S. 603, 102 S.Ct.
        1309, 71 L.Ed.2d 490 (1982) ................................................................. 26

          Jackson v. Virginia,
          443 U.S. 307, 99 S.Ct.
        2781, 61 L.Ed.2d 560 (1979) ........................................................... 18, 19

          Jenkins v. Anderson,
          447 U.S. 231, 100 S.Ct.
        2124, 65 L.Ed.2d 86 (1980) ................................................................. ..27

          Johnson v. United States,
          520 U.S. 461, 117 S.Ct.
        1544, 137 L.Ed.2d 718 (1997) ......................................................... 35-36

          Levine v. United States,
          362 U.S. 610, 80 S.Ct.
        1038, 4 L.Ed.2d 989 (1960)… ............................................................... 43

          Miranda v. Arizona,
          384 U.S. 436, 86 S.Ct.
        1602, 16 L.Ed.2d 6940 (1966) .......................................................……26


                                                  ii
     Presley v. Georgia,
     558 U.S. 209, 130 S.Ct.
   721, 175 L.Ed.2d 675 (2010)… ............................................................. 35

     Wainwright v. Greenfield,
     474 U.S. 284, 106 S.Ct.
   634, 88 L.Ed.2d 623 (1986) ...........................................................……26


Texas Court of Criminal Appeals


     Blackmon v. State,
   350 S.W.3d 588 (Tex.Crim.App. 2011)............... …………….21, 22, 25

     Brooks v. State,
   323 S.W.3d 893 (Tex.Crim.App. 2010)...................... …………….18-19

     Byrd v. State,
   336 S.W.3d 242 (Tex.Crim.App. 2011)................................................. 20

     Cameron v. State,
   2014 Tex.Crim.App. LEXIS 1536
   (Oct. 8, 2014, rehearing granted) ..................................................... 37-40

     Clayton v. State,
   235 S.W.3d 772 (Tex.Crim.App. 2007)................................................. 20

     Clewis v. State,
     922 S.W.2d 126 (Tex.Crim.App. 1996),
     overruled by Brooks v. State, 323 S.W.3d
   893 (Tex.Crim.App. 2010) ..................................................................... 18

   Cockrell v. State,
   933 S.W.2d 73 (Tex.Crim.App. 1996),
   cert. denied, 520 U.S. 1173, 117 S.Ct.
   1442, 137 L.Ed.2d 548 1997)................................................................. 29

   Conner v. State,
   67 S.W.3d 192 (Tex.Crim.App. 2001)................................................... 20


                                            iii
  Cuellar v. State,
613 S.W.2d 494 (Tex.Crim.App. 1981)................................................. 27

Dinkins v. State,
894 S.W.2d 330 (Tex.Crim.App.),
cert. denied, 516 U.S. 832, 116 S.Ct.
106, 133 L.Ed.2d 59 (1995) ....................................................... 18, 27, 28

  Evans v. State,
202 S.W.3d 158 (Tex.Crim.App. 2006)...............................21, 22, 23, 25

  Garcia v. State,
429 S.W.3d 604 (Tex.Crim.App. 2014),
cert. denied, 2014 U.S. LEXIS 7786 (U.S. 2014).................................. 32

  Garcia v. State,
919 S.W.2d 370 (Tex.Crim.App. 1994)................................................. 20

  Gear v. State,
340 S.W.3d 743 (Tex.Crim.App. 2011) ................................................ 19

  Grotti v. State,
273 S.W.3d 273 (Tex.Crim.App. 2008)................................................. 20

  Guevara v. State,
152 S.W.3d 45 (Tex.Crim.App. 2004) .................................................. 20

  Hernandez v. State,
538 S.W.2d 127 (Tex.Crim.App. 1976) ................................................ 23

  Hooper v. State,
214 S.W.3d 9 (Tex.Crim.App. 2007)..................................................... 20

  Houston v. State,
663 S.W.2d 455 (Tex.Crim.App.1984).................................................. 19

  Isaasi v. State,
330 S.W.3d 633 (Tex.Crim.App.2010).................................................. 19




                                        iv
  Kuciemba v. State,
310 S.W.3d 460 (Tex.Crim.App. 2007)................................................. 20

Laster v. State,
275 S.W.3d 512 (Tex.Crim.App. 2009)........................................... 19, 21

  Lilly v. State,
365 S.W.3d 321 (Tex.Crim.App. 2012)................................................. 35

Malik v. State,
953 S.W.2d 234 (Tex.Crim.App. 1997)................................................ .20

Marin v. State,
851 S.W.2d 275 (Tex.Crim.App. 1993)................................................ .42

  Matchett v. State,
  941 S.W.2d 922 (Tex.Crim.App. 1996),
  cert. denied, 521 U.S. 1107, 117 S.Ct.
2487, 138 L.Ed.2d 994 (1997) ............................................................... 19

Mathis v. State,
67 S.W.3d 918 (Tex.Crim.App. 2002).................................................. .29

Peyronel v. State,
2015 Tex.Crim.App. LEXIS 708 (June 24, 2015).......................... .40-44

Poindexter v. State,
153 S.W.3d 402 (Tex.Crim.App. 2005)..................................... 21, 22, 25

Salinas v. State,
369 S.W.3d 176 (Tex.Crim.App. 2012)................................................. 27

Sanchez v. State,
707 S.W.2d 575 (Tex.Crim.App. 1986)................................................. 27

  State v. Turro,
991 S.W.2d 849 (Tex.Crim.App. 1997)................................................. 19

Steadman v. State,
360 S.W.3d 499 (Tex.Crim.App. 2012)................................................. 35


                                         v
     Threadgill v. State,
   146 S.W.3d 654 (Tex.Crim.App. 2004)................................................. 29

     Villarreal v. State,
     286 S.W.3d 321 (Tex.Crim.App.),
     cert. denied, 558 U.S. 992, 130 S.Ct.
   5122, 175 L.Ed.2d 350 (2009) ............................................................... 20

     Waldo v. State,
   746 S.W.2d 750 (Tex.Crim.App. 1988)................................................. 27


Texas Courts of Appeals


     Bates v. State,
     155 S.W.3d 212 (Tex.App. – Dallas
   2004, no pet.) .......................................................................................... 23

     Burrell v. State,
     445 S.W.3d 761 (Tex.App. – Houston
   [14th Dist.] 2014, pet. ref’d).................................................21, 22, 23, 25

     Cameron v. State,
     415 S.W.3d 404 (Tex.App – San
   Antonio 2013, pet. granted).................................................................... 35

      Garcia v. State,
      2013 Tex.App. LEXIS 2328 (Tex.App – Corpus
   Christi 2013) (not designated for publication),
   aff’d, 429 S.W.3d 604 (Tex.Crim.App. 2014),
   cert. denied, 2014 U.S. LEXIS 7786 (U.S. 2014).................................. 32

     Harris v. State,
     866 S.W.2d 316 (Tex.App. – San
   Antonio 1993, no pet.) ............................................................................ 27

     James v. State,
     264 S.W.3d 215 (Tex.App. – Houston
   [1st Dist.] 2008, pet. ref’d) ..................................................................... 23


                                                 vi
         Lewis v. State,
         933 S.W.2d 172 (Tex.App – Corpus
       Christi 1996, pet. ref’d) .......................................................................... 27

         Mora v. State,
         797 S.W.2d 209 (Tex.App – Corpus
       Christi 1990, pet. ref’d) .......................................................................... 27

         Nixon v. State,
         940 S.W.2d 687 (Tex.App. – El Paso
       1996, pet. ref’d) ................................................................................ 27, 28

         Peters v. State,
         997 S.W.2d 377 (Tex.App – Beaumont
       1994, no pet.) .......................................................................................... 27

         Peyronel v. State,
         446 S.W.3d 151 (Tex.App – Houston
       [1st Dist.] 2014, pet. granted) ................................................................. 41


STATUTES


    TEX. PENAL CODE ANN.


       Sec. 1.07 (a) (39) (Supp. 2014) .............................................................. 15

       Sec. 6.01 (b) (2011) ................................................................................ 15


COURT RULES


    TEX. R. APP. P.


       Rule 33.1 ................................................................................................. 44



                                                      vii
           NOTE REGARDING FORM OF CITATION TO RECORD

      In this brief, the State will utilize the shorthand abbreviation C.R. in referring
to the Clerk’s Record and the shorthand abbreviation R.R. in referring to the
Reporter's Record. It will also list the volume number before the abbreviation R.R.
and the page number or numbers after said abbreviation.




                                          viii
               STATEMENT CONCERNING ORAL ARGUMENT

      The issues Appellant asserts in this case involve the application of settled
principles of law to the specific facts involved in this case and not any unsettled
legal issues having broad significance. Accordingly, the State does not believe that
oral argument is either necessary or appropriate in this case.
      The State would also observe that Appellant apparently agrees as her brief
does not include a request for oral argument.




                                          ix
                                     STATEMENT OF THE CASE


         Appellant OFELIA LARIOS was charged in cause number CR-2107-14-C

with Possession of Marihuana, In an Amount of 50 Pounds or Less, But More Than

5 Pounds. See C.R. 5; 5 R.R. 14-15.

         At a jury trial in the 139th District Court, before Judge J.R. “Bobby” Flores,

Appellant was found guilty. See C.R. 9, 29; 5 R.R. 124.1

         After ordering that a pre-sentence investigation report be prepared (see 5

R.R. 125), Judge Flores assessed Appellant LARIOS’ punishment at prison con-

finement for five years, suspended and probated for five years, and a $3,500.00

fine, with conditions of probation to include attending and successfully completing

a 15-hour drug education program, working 160 hours at a community service pro-

ject, and making a $100.00 donation to the Palmer Drug Abuse Program. See C.R.

9, 33-36; 6 R.R. 5.


                                        STATEMENT OF FACTS


         Because Appellant challenges sufficiency of the evidence to support her

conviction, the State must describe the evidence presented at trial in some detail.
1
  The judgment in this case, found at C.R. 32-36, mistakenly refers to Appellant entering a plea of guilty, rather than
being convicted at a trial on the merits. Because this use of form language dealing with a plea of guilty situation
clearly derives from a clerical error, the State will file a motion for judgment nunc pro tunc in order to correct this
error. Once said motion is granted by the trial court, the State will ask that a supplemental Clerk’s Record contain-
ing the corrected judgment be submitted to this Court.



                                                          1
      While he was working at the Hidalgo Port of Entry, across from Reynosa,

Mexico, at around 4:00 p.m. on January 9, 2014 United States Customs and Border

Protection Officer Roman Garay asked Appellant LARIOS, whom he identified,

routine questions, such as what the purpose of Appellant’s trip to Mexico had been

and what she was bringing back with her. (5 R.R. 20-24). After Appellant had

responded that she was coming back to the United States after going to visit a

friend, Officer Garay asked her how long she had been in Mexico and Appellant

responded that she had been there for one day. (5 R.R. 24). When Officer Garay

asked Appellant further questions, the way she answered made Officer Garay

“think that there was something else” or “raised the suspicion of something else”

and that he had then checked and “it seems that she was more than one day in

Mexico”. (5 R.R. 24-25).

      After thus becoming suspicious, Officer Garay went around Appellant’s

green Ford minivan, in which Appellant was the sole occupant; opened the passen-

ger side door, knelt down, opened the glove compartment, and saw some packages

hidden behind the glove compartment. (5 R.R. 25-26). After noting that officers

have the right to search a vehicle without a warrant or probable cause when some-

one is entering the United States, Officer Garay explained that a glove compart-

ment normally opens at a 45 degree angle; that his training and experience had,

however, told him to open the glove compartment completely so that he could have



                                        2
access to see what was behind it; that he had done so because he had had inform-

ation about certain types of vehicles which needed to be focused on and because

Appellant’s answers had raised suspicion; and that he had not, however, had any

information specifically about Appellant. (5 R.R. 26-28).

      After seeing the packages, Officer Garay closed the glove compartment;

went around to the driver’s side; told Appellant to turn off the vehicle and get out

of the vehicle; and called a female co-worker to keep an eye on Appellant while he

went and verified what he had just seen. (5 R.R. 28-29).

      Officer Garay further testified that he was familiar with, and could identify,

marihuana by its smell and texture; that he had not smelled marihuana when ques-

tioning Appellant or opening the glove compartment; and that the total amount of

marihuana had been 41.2 kilograms. (5 R.R. 34-36).

      During cross-examination, Officer Garay indicated that someone in the

vehicle would probably have been able to see the marihuana if the wall behind the

glove compartment was removed or the latch was opened completely; that one

could not see it unless the glove compartment was opened completely; and that the

marihuana had been fresh and been freshly wrapped. (5 R.R. 37-39).

      Re-direct questioning produced testimony that Officer Garay had asked

Appellant if anyone else had had access to her vehicle and that Appellant had said

that she was the only one who drove it. (5 R.R. 41).



                                         3
      When recalled to the stand, Officer Garay pointed out that he had found

additional packages of marihuana behind the center console when he used a mirror

to look behind the console; that the officers who were extracting the packages from

the vehicle had told him that they were not sure when he asked them if they had

searched the whole vehicle; that he had then taken the initiative, grabbed the mir-

ror, looked behind the center console, and found the other packages; and that those

packages had been specifically placed in that well-hidden location. (5 R.R. 55-60).

      United States Customs and Border Protection Officer Veronica Lopez Ram-

irez had been asked to assist Officer Garay. (5 R.R. 42-43). In particular, Officer

Garay had told Officer Ramirez that he had asked Appellant how long she had

been in Mexico, that he had found some discrepancies in Appellant’s answers, and

that he had seen some packages in the glove compartment and had then asked

Officer Ramirez to stand with Appellant while he checked the matter further. (5

R.R. 43).

      While the two of them were waiting, Officer Ramirez asked Appellant,

whom she identified, who the vehicle belonged to and Appellant said that it was

her vehicle. (5 R.R. 44). When Officer Ramirez then asked how long Appellant

had owned the vehicle, Appellant said “for about a year”. (5 R.R. 44).       When

asked where she had gone, Appellant said that she had gone to visit a friend, but

did not mention a name or a city she had gone to. (5 R.R. 44).



                                         4
           After Officer Garay confirmed that the packages contained marihuana, Offi-

cer Ramirez handcuffed Appellant and walked her into the secondary area where

the cells were; Officer Ramirez and another female officer patted Appellant down

for weapons or narcotics; and they did not find any weapons, but did find “a little

over” $4000.00 cash and “a little over” 5000 pesos on Appellant. (5 R.R. 45-46).

           Officer Ramirez also pointed out that the marihuana had been in two bund-

les; that one bundle of eight bricks had been behind the glove box and the other

bundle of three bricks had been near the center console and that the total weight of

the marihuana had been 4.12 kilograms, or about ten pounds.2 (5 R.R. 46-47).

           During cross-examination, Officer Ramirez stated that the money had been

counted and given back to Appellant; that Appellant had said that she ran a busi-

ness and had visited a friend in Reynosa, but had not given a name; that she was

familiar with the smell of marihuana; and that one could not smell the marhuana

without opening the packages. (5 R.R. 50-52). She also said that Appellant had

been fingerprinted; that no one ever takes fingerprints off of this type of package;

that one could leave fingerprints on cellophane packages like these packages; and

that looking for fingerprints would not be done because “(u)sually, it’s done in

Mexico”.3 (5 R.R. 52-53).


2
    Both sides agreed that 1 kilogram is 2.2 pounds and the court took judicial notice of that fact. See 5 R.R. 47-48, 51
3
    Although the meaning of this remark is not clear, it apparently refers to the marihuana being packaged in Mexico.




                                                             5
      Texas Alcoholic Beverage Commission Agent Ricardo Balli, Jr., who was

assigned to the Special Investigations Unit, went to the Hidalgo Bridge after being

contacted by Investigator Luna with Homeland Security Investigations because

Appellant owned a bar. (5 R.R. 62-65). When he arrived at the bridge, he spoke to

Appellant, who was in custody, and to Officers Garay and Ramirez. (5 R.R. 65).

      Agent Balli also ran the license plates on the gold 2001 Ford Windstar and

confirmed that it was registered in Appellant’s name, that the registration was cur-

rent, and that the vehicle had crossed over from the United States to Mexico and

back approximately 44 times prior to January 9, 2014. (5 R.R. 65-67, 73-74).

      He likewise pointed out that Appellant had not made a written statement, but

had given an oral statement, which was not recorded. (5 R.R. 68).

      At this point in his testimony, Agent Balli sponsored into evidence an evi-

dence seizure form stating that he had seized 9.08 pounds of compressed bundles

of marihuana; stated that he had taken random samples of the marihuana and sent

them off to the Department of Public Safety (D.P.S.) Crime Laboratory; sponsored

a photograph of the marihuana into evidence; and indicated that, in his opinion, he

had not needed to send the marihuana to the laboratory to determine that it was

marihuana because he could identify it based on his training and experience and its

smell. (5 R.R. 68-71). He also noted that the marihuana had been green, leafy,

very sticky, moist, and fresh, rather than old, brown, brittle, and dead; that the



                                         6
Hidalgo Port of Entry is in the city of Hidalgo, in Hidalgo County, Texas; and that

Appellant had told him that she had bought the vehicle at an auction. (5 R.R. 71-

74).

       D.P.S. Trooper Hector Resendez did a traffic stop on a gold 2001 Ford

Windstar van driven by Juan Sanchez Perales at about 6:21 P.M. on June 29, 2012,

asked for consent to search the vehicle for any illegal contraband; and found a false

floor containing approximately 16 pounds of marihuana. (5 R.R. 75-76). In parti-

cular, he found the marihuana in an area cut into the frame of the vehicle to create

a space to put illegal contraband; bundles of marihuana greased with axle grease

attached to bailing wire designed to retrieve the marihuana, nicknamed “dope on a

rope”; and lining on the compartment designed to defeat X-rays. (5 R.R. 78-79).

       Trooper Resendez also informed the jury that it was unlikely that the mari-

huana found behind the glove compartment on January 9, 2014 had been packaged

by the same people who had placed the marihuana he had found hidden in the false

floor; that the bundles he had found had been made with a different press; that the

size and manner of packaging of the bundles was different; that, “(i)f the organiza-

tion was going to put the load together more than likely they would use the same

press, same size bundles, same - - the same manner of packaging”; that the two

packages were very different; and that hiding the marihuana behind the glove box




                                         7
was very common and would amount to leaving it “almost in plain view to some-

one with my experience”. (5 R.R. 81).

      When asked if he had looked behind the glove box on June 29, 2012,

Trooper Resendez stated, “No, sir, I don’t recall. (5 R.R. 82).

      When he was asked, “so trooper, you did not look at the glove compartment

are, either the console or the glove compartment?” during cross-examination,

Trooper Resendez replied, “No, sir.” (5 R.R. 83-84). He also indicated that he

may have missed something and that he had not been able to find any relationship

between Appellant and Juan Sanchez Perales. (5 R.R. 84-85).

      During re-direct inquiry, Trooper Resendez pointed out that he would have

had a view of the dashboard and glove box and would have seen the marihuana in

the front console when he took up the carpet and passenger seat to open up the

false plate in the floor of the vehicle. (5 R.R. 85-86).

      After the State had rested, defense counsel indicated that he did not have any

motions, without ever seeking an instructed verdict. (5 R.R. 88-89).

      Evelyn Larios, Appellant’s daughter, testified that she helps Appellant, her

mother, run the bar and some apartment complexes; that the money found on

Appellant was rent money she had given to Appellant for Appellant to deposit; that

Appellant had forgotten to do so and had taken the money to Mexico; and that




                                           8
Appellant would go to Mexico “so often” because she had a friend that she was

living with in Mexico. (5 R.R. 89-90).

       During cross-examination, Ms. Larios stated that Appellant would go to

Mexico every week because she has a friend over there and would stay for 4-5

days; that Appellant had bought the Windstar at an auction and had had it for about

“a year or two, year and a half” before this happened; that Appellant had had

another business buying and selling cars; and that Appellant was an intelligent

woman who would have asked questions if she were falsely accused. (5 R.R. 92-

96).

       Alberto Carrizalez Garcia testified that he lives in Reynosa; that Appellant

was a friend of his, whom he has known for a little over a year; that Appellant

would often visit with him in Reynosa; that Appellant had been with him on the

day she was arrested; that he had never put any marihuana in Appellant’s vehicle;

and that he does not have any idea who might have done so. (5 R.R. 98-99).

       Appellant’s son Gustavo Larios indicated that he lived with Appellant and

worked selling cars; that Appellant had owned a car lot between 1997-2010 and

had made him manager of the business, which had involved buying vehicles to

resell them; that he had participated in Appellant’s purchase of a 2001 Ford Wind-

star; and that he had not wanted her to take that vehicle because he could not resell

it because it was too damaged. (5 R.R. 100-02).



                                         9
           COUNTERPOINT ONE (In response to Issue Presentcd No. 1)


      THE EVIDENCE IN THIS CASE IS LEGALLY SUFFICIENT TO SUP-

PORT APPELLANT’S CONVICTION FOR POSSESSION OF MARIHUANA, IN

AN AMOUNT OF 50 POUNDS OR LESS, BUT MORE THAN 5 POUNDS.


                 FACTS PERTINENT TO COUNTERPOINT ONE


     The indictment in this case alleged, in pertinent part, that

      OFELIA LARIOS … on or about the 9th day of January, A.D. 2014,
      and before the presentment of this indictment, in Hidalgo County,
      Texas, did then and there intentionally and knowingly a usable quantity
      of marihuana in an amount of 50 pounds or less but more than five
      pounds.

     See C.R. 5; 5 R.R. 14-15.


      The jury charge as to Count One indicated that “our law provides that a person

commits an offense if he knowingly or intentionally possesses a usable quantity of

marihuana”; that the term “possession” means “the actual care, custody, control or

management of the marihuana”; that possession is a voluntary act of the possessor

knowingly obtains or receives the thing possessed or is aware of his control of the

thing for a sufficient time to permit him to terminate his control; that a person acts

intentionally, or with intent, with respect to the nature of his conduct when it is his

conscious objective or desire to engage in the conduct; and that a person acts know-



                                           10
ingly, or with knowledge, with respect to the nature of his conduct when he is aware

of the nature of his conduct. See C.R. 25; 5 R.R. 106.

      The application paragraph of the charge then stated as follows:

      Now, if you find from the evidence beyond a reasonable doubt that on
      or about JANUARY 9, 2014, the Defendant, OFELIA LARIOS, did
      then and there intentionally and knowingly possess a usable quantity of
      marihuana in an amount of 50 pounds or less but more than five
      pounds, then you will find the Defendant “Guilty” of the criminal
      offense of Possession Of (sic) Marihuana in an amount of 50 pounds or
      less but more than 5 pounds as charged in the indictment.

      Unless you so find beyond a reasonable doubt, or if you have a reason-
      able doubt thereof, you will acquit the Defendant and say by your
      verdict, “Not Guilty”.

      See C.R. 26; 5 R.R. 15-16.


     After the State had rested, Appellant’s attorney told Judge Flores that he did not

have any motions to urge, thus not seeking an instructed verdict. See 5 R.R. 88-89.

     During his final argument, the trial prosecutor discussed the elements of the

offense mentioned in the jury charge; noted that the only contested issue was whether

Appellant had intentionally or knowingly possessed the marihuana; referred to the

evidence showing that there were vast differences in the way the marihuana located

behind the glove compartment and the marihuana discovered earlier was concealed;

mentioned the court’s instruction not to let sympathy play a role in deliberations; and

observed that Appellant was the perfect type of person to cross over the marihuana.

See 5 R.R. 115-21.


                                          11
 He then made the following remarks, none of which were objected-to:

And I don’t know why she got so much cash. I don’t know if some-
body paid her to cross the marihuana and that’s why she had the cash. I
don’t know if her daughter is telling us the truth. But I think that’s
something else we need to consider. Why does she have over $4,000 in
currency, in U.S. money, and over $5,000 in pesos? Why? I mean,
and - - and additionally, nine pounds of marijuana in her vehicle.

Mr. Pena brought up time and time again about the fingerprints. The
fingerprints. The fingerprints.

When you are doing this job long enough, fingerprints on marijuana
bundles like this, we could have ten different sets of fingerprints and if
not one of them matches does that mean that she didn’t know it was
there? No. It just means that somebody else loaded it for her.

I mean, do you - - do we really expect, are we really going to expect
that she removed the glove compartment, took down the console and
put it in there? No. I’m not saying that she did it. But she knew it was
there. She knew she was crossing it over.

Was it a surprise to here when they found it?

The officers even testified to that. That she didn’t ask any questions.
She just went in willingly, got the handcuffs put on and that was that.

She - - I mean, if somebody - - is that the reaction you expect from
somebody who just found out that they have - - that they’re trans-
porting marijuana across the country, excuse me, across the U.S./
Mexico border? I don’t think so.

I know I’d be scared. I know I’d be asking questions. Well, what are
you doing? What did you find? She didn’t ask anything. She just
went because she knew.

She knew she was caught and she know that she had her rights. She
didn’t say anything. And that she could come here today and ask you
to say that she is not guilty.



                                    12
      She knew that that vehicle had - - excuse me. She also knew that
      vehicle had been used in a prior drug arrest. She also knew that.

      That helps. Hey, if they find anything, I will just say it was from
      before. I will just say it was before. Who cares?

      This vehicle has been crossed according to Agent Balli 44 times since
      the time she bought it. According to her daughter and according to Mr.
      Carrizales, she would go visit them every weekend. So we’re telling
      me in all the times not once did it ever get searched, did a dog ever
      sniff it? I mean, never? She was able to cross 40-some times without it
      ever being looked at it? No, that marijuana was just put there. They
      would have caught her a long time ago or found it a long time ago if it
      had had (sic) been left there from June of 2012.

      Their story doesn’t add up. She is trying to hide behind it. She is
      trying to hide behind the sympathy.

      All we are asking you to do is to do the right thing. Follow the law and
      find her guilty.

      Thank you.

      See 5 R.R. 121-23.


     Following her conviction and sentencing, Appellant LARIOS filed a motion for

new trial, challenging sufficiency of the evidence to support her conviction. See C.R.

6, 9, 43-47.

      At the conclusion of a hearing on said motion, held on February 5, 2015, Judge

Flores indicated that he was denying said motion. See 8 R.R. 4-7.

      However, Judge Flores did not sign a written order ruling on Appellant’s

motion for a new trial, meaning that it was overruled by operation of law.



                                          13
    SUMMARY OF ARGUMENT IN SUPPORT OF COUNTERPOINT ONE


      Sound application of the legal principles applicable to evaluation of suffi-

ciency of the evidence and possession of contraband shows that the evidence was

legally sufficient to support Appellant’s conviction of the offense of Possession of

Marihuana, In an Amount of 50 Pounds or Less, But More Than 5 Pounds. Appel-

lant’s arguments to the contrary improperly focus on additional evidence not in-

volved in this case, rather than the evidence presented at trial which, properly viewed

in the light most favorable to the jury’s verdict, supports her conviction.

      Moreover, the challenge to the comments during final argument which Appel-

lant injects into his argument attacking sufficiency of the evidence to support her

conviction also lacks merit under the facts involved.

      First of all, there was no trial objection to said remarks.

      Secondly, the testimony in this case indicated that Appellant was not removed

from her vehicle, handcuffed, and arrested only after the marihuana was found during

the search of her vehicle. It also showed that Appellant had made an oral statement,

but does not mention at what point she had done so or the content of said statement.

      Third, the context involved shows that the prosecution remarks which Appel-

lant now challenges for the first time referred to the lack of surprise or any other type

of spontaneous reaction on Appellant’s part, whether verbal or non-verbal, when the

marihuana was found in her vehicle, which had occurred prior to her arrest.


                                           14
 ARGUMENT AND AUTHORITIES IN SUPPORT OF COUNTERPOINT ONE


      Appellant’s first issue contends that the evidence is legally insufficient to

support her conviction. See Brief for Appellant, pp. 5, 12.

      In arguing this claim, Appellant mentions the standards governing evalua-

tion of sufficiency of the evidence issues; says that the State must prove care,

custody, control, or management over the substance and that the matter possessed

was contraband; quotes the definition of “possession” found in TEX. PENAL

CODE ANN. Sec. 1.07 (a)(39) (Supp. 2014); observes that TEX. PENAL CODE

ANN. Sec. 6.01 (b) (2011) states that “(p)ossession is a voluntary act if the posses-

sor knowingly obtains or receives the thing possessed or is aware of his control of

the thing for a sufficient time to permit him to terminate his control”; and indicates

that the evidence may be direct or circumstantial, but must establish “that the

accused’s connection with the [contraband] was more than just fortuitous”. See

Brief for Appellant, p. 12. He then remarks that mere presence in the same place

as the controlled substance is not sufficient to justify a finding of possession; that

knowledge of the contents of the vehicle, including knowledge of the contraband,

may be inferred when a defendant is exercising exclusive control over the vehicle;

that the courts have, however, cautioned that reliance should not be placed solely

upon control of the vehicle to show knowledge when contraband is found in a hid-

den compartment of a vehicle; and that courts have, instead, often required a


                                         15
showing of additional factors or “affirmative links” indicating knowledge. See

Brief for Appellant, p. 13.

      Appellant next states that a non-exclusive list of affirmative links includes

whether (1) the contraband is in plain view or recovered from an enclosed space;

(2) the accused either owned or had the right to possess the place where the drugs

were found; (3) the accused was found with a large amount of cash; (4) the nar-

cotic was in close proximity to the accused; (5) the contraband was conveniently

accessible to the accused; (6) a strong residual odor of the narcotic was present; (7)

the accused possessed other contraband when arrested; (8) other contraband or

drug paraphernalia was present; (9) the physical condition of the accused indicated

recent consumption of narcotics when arrested; (10) the accused’s conduct indi-

cated a consciousness of guilt; (11) the accused tried to flee; (12) the accused made

furtive gestures; (13) the accused had a special connection to the contraband; (14)

the occupants of the premises gave conflicting statements about relevant matters;

(15) the accused made incriminating statements when arrested; (16) the quantity of

the contraband; and (17) the accused was observed in a suspicious place under sus-

picious circumstances. See Brief for Appellant, pp. 13-14. He then points out that

the legal issue with respect to the affirmative links is “whether there was evidence

of circumstances, in addition to mere presence, that would adequately justify the

conclusion that the defendant knowingly possessed the substance” and indicates



                                         16
that it is the logical force of the affirmative links, rather than the quantity, that is

important in determining whether the evidence is legally sufficient to connect the

accused to the contraband. See Brief for Appellant, p. 14.

      Appellant next argues that there were not sufficient affirmative links in this

case and says that his Statement of Facts shows (1) that the contraband was not in

plain view and was recovered from an enclosed space; (2)that she was the regis-

tered owner of the vehicle, which, however, had been bought as part of a business

that bought and sold vehicles; (3) that she had been found with cash, but had at

least two businesses, rental properties and a bar, which deal in cash; (4) that the

narcotics were in close proximity to her, but were in hidden compartments; (5) that

the narcotics were not conveniently accessible to her; (6) that there was not a

strong residual odor of the narcotic present; (7) she did not possess other contra-

band when arrested; (8) other contraband or drug paraphernalia was not present;

(9) her physical condition of the accused did not indicate recent consumption of

narcotics when arrested; (10) her conduct did not indicate a consciousness of guilt;

(11) she did not try to flee; (12) she did not make furtive gestures; (13) she did not

have a special connection to the contraband; (14) there were not any occupants of

the premises giving conflicting statements about relevant matters; (15) she did not

make incriminating statements when arrested; (16) the quantity of the contraband

was only nine pounds and came out of a vehicle which had been previously seized



                                          17
due to having had marihuana concealed in it; and (17) she was not observed in a

suspicious place under suspicious circumstances. See Brief for Appellant, p. 15.

      Appellant next quotes part of the prosecutor’s final argument; indicates that

use of a defendant’s post-arrest silence is akin to a comment on a failure to testify

at trial because it attempts to raise an inference of guilt arising from invocation of a

constitutional right and thus violates the Fifth Amendment prohibition against self-

incrimination; cites Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.), cert.

denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995) in support of that

proposition; and states that invocation of constitutional rights may also not be re-

lied upon as evidence of guilt. See Brief for Appellant, p. 15-16.

      In responding to these arguments, the State will first describe the law gov-

erning analysis of challenges to sufficiency of the evidence to support a conviction.

      First of all, the Court of Criminal Appeals has held that legal sufficiency is the

only standard for evaluating sufficiency of the evidence. See Brooks v. State, 323

S.W.3d 893, 895 (Tex.Crim.App. 2010).

      In doing so, it pointed out that there is no meaningful distinction between the

standard for review of legal sufficiency of the evidence enumerated in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and the standard for

review of factual sufficiency of the evidence it had adopted in Clewis v. State, 922

S.W.2d 126, 129 (Tex.Crim.App. 1996); overruled Clewis; and stated that the legal



                                          18
sufficiency standard set out in Jackson v. Virginia is the only standard which

reviewing courts should apply in evaluating whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt. See Brooks, 323 S.W.3d at 894-95, 902.

         Secondly, analysis of legal sufficiency of the evidence requires examination

of all of the evidence in the light most favorable to the verdict in order to deter-

mine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. at,

318-19, 99 S.Ct. at 2788-89; Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.

2011); Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010); Laster v. State,

275 S.W.3d 512, 517 (Tex.Crim.App. 2009); Houston v. State, 663 S.W.2d 455, 456

(Tex.Crim.App. 1984).

         Third, the fact that conflicting evidence was introduced does not render evi-

dence insufficient and instead it must be assumed that the fact-finder resolved any

conflicts in the evidence in favor of the verdict reached. See, e.g., Matchett v. State,

941 S.W.2d 922, 936 (Tex.Crim.App. 1996), cert. denied, 521 U.S. 1107, 117 S.Ct.

2487, 138 L.Ed.2d 994 (1997); State v. Turro, 867 S.W.2d 43, 47 (Tex.Crim.App.

1993).

         Fourth, in evaluating sufficiency of the evidence, one must consider all the

evidence that supports the conviction, whether properly or improperly admitted. See,



                                           19
e.g., Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Conner v. State,

67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Garcia v. State, 919 S.W.2d 370, 378

(Tex.Crim.App. 1994).

      Fifth, legal sufficiency of the evidence is to be measured in terms of "the

elements of the offense as defined by the hypothetically correct jury charge for the

case". See, e.g., Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App. 2011); Grotti v.

State, 273 S.W.3d 273, 280-81 (Tex.Crim.App. 2008); Malik v. State, 953 S.W.2d

234, 239-40 (Tex.Crim.App. 1997).

      Such a charge is one which accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict

its theories of liability, and adequately describes the offense for which the defend-

ant is being tried. See Byrd, 336 S.W.3d at 246; Villarreal v. State, 286 S.W.3d

321, 327 (Tex.Crim.App.), cert. denied, 558 U.S. 992, 130 S.Ct 512, 175 L.Ed.2d

350 (2009); Malik, 953 S.W.2d at 240.

      Sixth, it is not necessary that the evidence directly proves the defendant’s

guilt and instead “(c)ircumstantial evidence is as probative as direct evidence in

establishing the guilt of the actor, and circumstantial evidence alone can be suffi-

cient to establish guilt.” See, e.g., Kuciemba v. State 310 S.W.3d 460, 462 (Tex.

Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007);

Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).



                                         20
      Seventh, a fact-finder may support its verdict with reasonable inferences

drawn from the evidence, and it is up to the fact-finder to decide which inference is

most reasonable. See Laster, 275 S.W.3d at 523.

      Having mentioned these general guidelines for evaluation of challenges to

sufficiency of the evidence, the State would next describe the law applicable to the

specific possession offense involved in this case.

      First of all, in order to support a conviction for unlawful possession of a

controlled substance, the prosecution must prove that the accused exercised care,

custody, control, or management over the substance and that the matter possessed

was contraband. See, e.g., Blackmon v. State, 350 S.W.3d 588, 594 (Tex.Crim.

App. 2011); Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); Poindex-

ter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); Burrell v. State, 445

S.W.3d 761, 764-65 (Tex.App. – Houston [14th Dist.] 2014, pet ref’d).

      Secondly, whether the evidence is direct or circumstantial, it must establish

that the defendant’s connection with the drug was more than fortuitous. See, e.g.,

Blackmon, 350 S.W.3d at 594; Evans, 202 S.W.3d at 161; Poindexter, 153 S.W.3d

at 405; Burrell, 445 S.W.3d at 765.

      Third, this is the “affirmative links” rule, which is designed to protect the

innocent bystander from conviction based solely upon his fortuitous proximity to

someone else’s drugs and which requires that, when the accused is not in exclusive



                                         21
possession of the place where the substance is found, it cannot be concluded that

he or she had knowledge of, and control over, the contraband unless there are addi-

tional independent facts and circumstances which affirmatively link the accused to

the contraband. See, e.g., Blackmon, 350 S.W.3d at 594; Evans, 202 S.W.3d at

161; Poindexter, 153 S.W.3d at 405; Burrell, 445 S.W.3d at 765.

      Fourth, this rule thus recognizes that mere presence at the location where the

drugs are found is thus, by itself, not sufficient to establish actual care, custody, or

control of said drugs, but that presence of proximity, when combined with other

evidence, whether direct or circumstantial,, may well be sufficient to establish that

element beyond a reasonable doubt. See Evans, 202 S.W.3d at 162.

      Fifth, the Court of Criminal Appeals has explained that the “affirmative

links” rule is not an independent test of legal sufficiency and is instead merely a

shorthand catch-phrase for a large variety of circumstantial evidence that may

establish the knowing “possession” or “control, management, or care” of some

item such as contraband. See Evans, 202 S.W.3d at 161, n. 9.

      Sixth, factors which the Court of Criminal Appeals has recognized as affirm-

ative links include (1) the defendant’s presence when a search is conducted; (2)

whether the contraband was in plain view; (3) the defendant’s proximity to and the

accessibility of the narcotic; (4) whether the defendant was under the influence of

narcotics when arrested; (5) whether the defendant possessed other contraband or



                                          22
narcotics when arrested; (6) whether the defendant made incriminating gestures

when arrested; (7) whether the defendant attempted to flee; (8) whether the defend-

ant made furtive gestures; (9) whether there was a odor of contraband; (10)

whether other contraband or drug paraphernalia were present; (11) whether the

defendant owned or had the right to possess the place where the drugs were found;

(12) whether the place where the drugs were found was enclosed; (13) whether the

defendant was found with a large amount of cash; and (14) whether the conduct of

the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162,

n. 12; Burrell, 445 S.W.3d at 765.

      Seventh, said Court has also pointed out that the number of factors that are

present is not as important as the logical force or the degree to which the factors,

direct and circumstantial, tend to affirmatively link the accused to the contraband.

See, e.g., Evans, 202 S.W.3d at 162; Burrell, 445 S.W.3d at 765; Bates v. State,

155 S.W.3d 212, 217 (Tex.App. – Dallas 2004, no pet.).

      Eighth, it has also noted that the absence of various affirmative links does

not constitute evidence of innocence to be weighed against the links which are pre-

sent. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976); James

v. State, 264 S.W.3d 215, 219 (Tex.App. – Houston [1st Dist.] 2008, pet. ref’d).

      Having described the legal principles applicable to the issue Appellant

asserts, the State will now proceed to apply said law to the facts of this case. In



                                        23
doing so, it will demonstrate that Appellant has accurately said law, but then

erroneously applies it to the evidence presented in this case.

      In particular, Appellant does not properly evaluate the evidence in the light

most favorable to the verdict and instead focuses on the lack of additional evidence

linking her to the marihuana and relies on defense favorable testimony.

      For example, Appellant fails to recognize that the undisputed evidence is

that she was the driver and sole occupant of the vehicle in which the marihuana

was found, meaning that there was, by definition, no issue of mere presence or

affirmative links to said marihuana.

      She also ignores the testimony that she had told Officer Garay that she was

the only one who drove the green Ford Windstar minivan.

      Appellant also does not take into account the fact that the marihuana was

located behind the glove compartment and the center console of the vehicle, areas

which were in close proximity to her and accessible to her as the driver of the

vehicle, particularly if she were to completely open the glove compartment.

      Appellant also alludes to other aspects of the testimony but then relies on

defense favorable testimony to try to minimize the significance of said testimony.

      For example, she admits that she was the registered owner of the vehicle, but

then states that the vehicle had been bought as part of a business that bought and

sold vehicles.



                                          24
      She also admits that she had had over $4000.00 cash and a little over 5,000

pesos on her, but then says that she had had at least two businesses which dealt in

cash, namely, rental properties and a bar.

      Appellant further states that the quantity of the marihuana was only nine

pounds and refers to the evidence that said marihuana had been found in a vehicle

which had previously been seized because there was marihuana concealed in it.

      In doing so, she ignores the evidence that the marihuana found by Officer

Garay which was the subject of this prosecution was fresh, green, sticky, moist,

and freshly wrapped, rather than brown and dried out, and was also packaged far

differently than the marihuana which Trooper Resendez had found hidden in a

false floor several years earlier.

      This reliance on testimony favorable to the defense and mention of addi-

tional affirmative links which are not involved in this case, while ignoring the links

which are established by the evidence, is hardly a proper application of the prin-

ciples governing evaluation of legal sufficiency of the evidence, particularly the

requirement that the evidence be viewed in the light most favorable to the verdict.

      In fact, the courts have repeatedly condemned precisely this type of reliance

on the reviewing court’s own views of the evidence and the absence of additional

affirmative links. See, e.g., Blackmon, 350 S.W.3d at 595-96; Evans, 202 S.W.3d

at 164; Poindexter, 153 S.W.3d at 412; Burrell, 445 S.W.3d at 766-67.



                                         25
        Before concluding this response to Appellant’s arguments in regard to her

first issue, the State must address the complaint about remarks made during its

final argument which she includes in her argument concerning this error claim.

        In doing so, the State would first observe that the United States Supreme

Court had held that the due process requirement of the federal constitution pro-

hibits cross-examination of a defendant concerning his silence after he has been

arrested and given his Miranda warnings4. See Doyle v. Ohio, 426 U.S. 610, 611-

19, 96 S.Ct. 2240, 2241-45, 49 L.Ed.2d 91 (1976).

        It would next note that this holding was limited in Fletcher v. Weir, 455 U.S.

603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), in which the Court held that the fed-

eral constitution did not prohibit the prosecution from using a defendant’s silence

after arrest, but before Miranda warnings were administered. Id., 455 U.S. at 605-

07, 102 S.Ct. at 1311-12.

        The State would also point that that the Supreme Court has also explained

that the Doyle decision was based on the unfairness of assuring the defendant he

has a right to remain silent and then using that silence to his detriment. See Wain-

wright v. Greenfield, 474 U.S. 284, 291, 293, 106 S.Ct. 634, 637-39, 88 L.Ed.2d

623 (1986); Anderson v. Charles, 447 U.S. 404, 407-08, 100 S.Ct. 2180, 2181-82,

65 L.Ed.2d 222 (1980).

4
 This refers to the warnings mentioned in the landmark decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).



                                                     26
      It would likewise observe that the Supreme Court has further indicated that

there is no federal constitutional problem with questioning a defendant about pre-

arrest silence. See Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S.Ct. 2124,

229-30, 65 L.Ed.2d 86 (1980).

      The State would also note that a plurality of the Court of Criminal Appeals

has held that impeachment by the use of post-arrest, pre-Miranda silence violated

Article 1, Section 10 of the Texas Constitution. See Sanchez v. State, 707 S.W.2d

575, 577-82 (Tex.Crim.App. 1986).

      It would further point out that Texas courts mentioned the principle that it is

improper to comment on a defendant’s post-arrest silence in Salinas v. State, 369

S.W.3d 176, 178 (Tex.Crim.App. 2012); Dinkins, 894 S.W.2d at 356; Cuellar v.

State, 613 S.W.2d 494, 495 (Tex.Crim.App. 1981); Nixon v. State, 940 S.W.2d

687, 692 (Tex.App. – El Paso 1996, pet. ref’d); Lewis v. State, 933 S.W.2d 172,

182 (Tex. App. – Corpus Christi 1996, pet. ref’d); and Mora v. State, 797 S.W.2d

209, 214 (Tex.App. – Corpus Christi 1990, pet. ref’d).

      The State would likewise observe that Texas courts recognized the principle

that it is proper to inquire into pre-arrest silence in Waldo v. State, 746 S.W.2d

750, 755 (Tex.Crim.App. 1988); Peters v. State, 997 S.W.2d 377, 388 (Tex.App. –

Beaumont 1994, no pet.); Harris v. State, 866 S.W.2d 316, 320 (Tex.App. – San

Antonio 1993, no pet.); and Mora, supra at 214.



                                         27
      Finally, the State would note that the case law in this area notes that a com-

ment on the defendant’s post-arrest silence is akin to a comment on his failure to

testify at trial because it attempts to raise an inference of guilt arising from the in-

vocation of a constitutional right. See Dinkins, supra at 356; Nixon, supra at 692.

      Having mentioned the legal principles applicable to the issue which Appel-

lant injects into his attack on sufficiency of the evidence, the State would next ob-

serve that application of said law to the facts involved shows that the challenge to

the prosecutor’s remarks which Appellant now urges for the first time has no merit.

      After all, the undisputed evidence presented at trial showed that Appellant

was not removed from her vehicle, handcuffed, and arrested until after the mari-

huana had been found during the search of her vehicle.

      Moreover, although there was also testimony that Appellant had made an

oral statement, there was no evidence which pinpointed when she had done so, at

what point she had been given her Miranda warnings, or what she had said.

      In addition, evaluation of the context of the challenged remarks shows that

the prosecutor was referring to the lack of any reaction of surprise or other type of

reaction on Appellant’s part, whether verbal or non-verbal, when the marihuana

was discovered in her vehicle prior to her being arrested once the officers found

said contraband.




                                          28
       Furthermore, Appellant did not object to the jury argument which she now

challenges, meaning that she had forfeited the right to complain about said argu-

ment on appeal. See, e.g., Threadgill v. State, 146 S.W.3d 654, 670 (Tex.Crim.

App. 2004); Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App. 2002);

Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), cert. denied, 520 U.S.

1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997).5




5
  In fact, recognition of this fact may well explain why Appellant has not urged a distinct com-
plaint challenging said argument in this appeal and has instead merely attempted to mention said
topic as part of her challenge to sufficiency of the evidence to support her conviction.


                                              29
           COUNTERPOINT TWO (In response to Issue Presentcd No. 2)


      THE TRIAL RECORD SHOWS THAT APPELLANT NEVER COM-

PLAINED ABOUT AN ALLEGED VIOLATION OF HER RIGHT TO A PUBLIC

TRIAL AND INSTEAD SHOWS THAT SHE REPEATEDLY REQUESTED

THAT HER DAUGHTER BE ALLOWED TO SIT WITH HER AND, THERE-

FORE, APPELLANT’S PRESENT ASSERTION THAT THE TRIAL COURT

HAD DENIED HER RIGHT TO A PUBLIC TRIAL IS (A) NOT PRESERVED

FOR APPELLATE RVIEW AND (B) FACTUALLY INACCURATE.


                 FACTS PERTINENT TO COUNTERPOINT TWO


       Appellant was given an interpreter at her arraignment. See 2 R.R. 5-6.

      The record of Appellant’s arraignment also shows that defense counsel had

mentioned the need to have a bond set; that Judge Flores had then asked said attorney

to tell him “about her a little bit”; that counsel had replied that Appellant had no prior

record; that Judge Flores had then asked if Appellant was a United States citizen; and

that defense counsel had replied that she was not, but was “a business lady” and that

her family was “here”. See 2 R.R. 11. It further indicates that Judge Flores had then

inquired what Appellant did; that counsel had answered that she ran “El Ranchito out

here on Tower”; that Judge Flores had asked what that was; that counsel had replied

that it was, “(a) little bar”; that Judge Flores had then asked who was “here” from her


                                           30
family; that counsel had answered “(h)er daughter, sisters, and - -”; and that Judge

Flores had then told counsel to just bring him the daughter. See 2 R.R. 11-12.

     The record further shows that Appellant’s attorney had asked the person how

she was related to Appellant; that she had replied that Appellant was her mother; that

counsel had then asked if Appellant had lived here most of her life; that Appellant’s

daughter had replied “Correct. Yes, sir.”; that Judge Flores had then asked if Appel-

lant was a resident; and that Appellant’s daughter had replied “Yes, Sir. She is a U.S.

citizen”. See 2 R.R. 12. It likewise indicates that Judge Flores had then asked, “U.S.

citizen?”; that defense counsel had also inquired “She is a U.S. citizen?”; that Appel-

lant’s daughter had replied, “No, by naturalization”; that defense counsel had then

said, “Oh, naturalization. I know she was born in Guatemala”; and that Judge Flores

had then stated that he was going to reinstate the original bond. See 2 R.R. 12-13.

       The following discussion between prosecutor Orlando Javier (O.J.)

Esquivel, defense counsel L. Aron Pena, and Judge Flores occurred at the outset of

the proceedings held on November 17, 2014:

      MR.ESQUIVEL: Judge, so for the record is the Defendant requesting a
      translator throughout the trial?

      MR. PENA: No. No. she can get by. Her daughter is going to be with
      her if the Court allows her.

      THE COURT: We’ll get - - we’ll get an interpreter to her.

      See 4 R.R. 3.



                                          31
        After Mr. Esquivel had mentioned the fact that the officer involved in the

prior seizure had not recalled ever looking in the glove compartment, a motion in

limine had been discussed, and Judge Flores had stated that they were going to

pick a jury “right now”, the following remarks were made:

        THE COURT: She is going to need an interpreter.

        MR. PENA: I don’t want her to be - - her daughter can be with here,
        Your Honor. She can sit up here with her.

        MR. ESQUIVEL: Judge, I just want to put on the record, because it’s
        come up on appeal before, that she is waiving the Court - -6

        MR. PENA: Yes, we’re waiving a contemporaneous translator.

        MR. ESQUIVEL: I just want to put on the record that she is saying yes
        I’m waiving that.

        THE COURT: Is that your agreement, ma’am?

        MR. PENA: Sorry, Judge.

        MR. ESQUIVEL: There you go.

        THE COURT: Okay. Bring the jury in.

        MR. PENA: Your Honor, can I have her daughter sit next to her? Any
        problem? She feels more comfortable. She is not going to burden
        anybody.

        THE COURT: You are not a witness?

        MR. PENA: She is not a witness. She has got - -

6
  Mr. Esquivel was referring to the issue of an alleged denial of the right to an interpreter which was asserted in
another case originating in the 139th District Court; namely, Irving Magana Garcia v. State, 429 S.W.3d 604 (Tex.
Crim.App. 2014), cert. denied, 2014 U.S. LEXIS 7786 (U.S. 2014), which affirmed a decision by this Court found
at 2013 Tex.App. LEXIS 2328 (Tex.App. – Corpus Christi 2013) (not designated for publication).



                                                        32
      THE COURT: Okay.

      MR. PENA: She may be a witness. She may be a witness, but not for
      the jury selection, Judge.

      THE COURT: Yes, I don’t want to - - no, step outside.

      PROSPECTIVE WITNESS: Thank you.

      THE COURT: We got an interpreter here.

      (General panel enters the courtroom).

      See 4 R.R. 4-5.


      After the State had presented its last witness, the jury was excused, defense

counsel indicated that he had “three, maybe four quick witnesses” and the follow-

ing then occurred:

      MR. PENA: So we won’t make an issue out of it, Judge, she’s going to
      testify first, the daughter.

      THE COURT: Okay.

      MR. PENA: Then I’d like her excused from the Rule. We’ll dismiss
      here as a witness and after that she can stay - - she can stay in the
      courtroom.
      MR. ESQUIVEL: We object, Judge.

      MR. PENA: Once she is dismissed.

      THE COURT: He objects. Rebuttal.

      MR. PENA: I won’t - - I won’t call her at all. I give up any right to
      call her.

      MR. ESQUIVEL: Okay.


                                        33
      MR. PENA: Okay. Thank you.

      MR. ESQUIVEL: Oh, wait. You mean you are not going to call her?

      MR. PENA: I’m not going to call her.

      MR. ESQUIVEL: After you call her.

      MR. PENA: After I call her.

      See 5 R.R. 87-88.


      After Appellant’s daughter Evelyn Larios had testified, Mr. Pena asked,

“May she remain here, your Honor? I’m not going to call her again. Ever again.”

and Judge Flores responded, “Okay”. See 5 R.R. 97.


   SUMMARY OF ARGUMENT IN SUPPORT OF COUNTERPOINT TWO


      Relevant information contained in the trial record, which has just been

described in detail, does not show that Appellant ever requested that her daughter

be allowed to be present during jury selection. Instead, the record merely shows

that Appellant repeatedly asked that her daughter be allowed to sit with her during

the court proceedings, a request which the trial court denied because it, quite

soundly, believed that use of a qualified interpreter was more appropriate.

      Accordingly, Appellant’s appellate contention that the trial court had erred

by allegedly denying a request that her daughter be present during jury selection is

both not preserved for appellate review and factually inaccurate.


                                         34
ARGUMENT AND AUTHORITIES IN SUPPORT OF COUNTERPOINT TWO


       Appellant’s second issue contends that the trial court erred in denying a

request that her daughter be allowed to be present during jury selection. See Brief

for Appellant, pp. 5, 17.

       In arguing this claim, Appellant mentions the right to a public trial under the

federal and state constitutions and TEX. CODE CRIM. PROC. ANN. Art. 1, Sec.

10 (2007); notes that said right extends to the jury selection phase of trial; cites

Presley v. Georgia, 558 U.S. 209, 212-13, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010)

and Steadman v. State, 360 S.W.3d 499, 510-11 (Tex.Crim.App. 2012) as support

for that proposition; indicates that, in determining whether any portion of a trial

was closed to the public, one must look at “the totality of the evidence and deter-

mine whether the trial court fulfilled its obligation ‘to take every reasonable meas-

ure to accommodate public attendance’ . . . .”; and cites Lilly v. State, 365 S.W.3d

321, 331 (Tex.Crim.App. 2012) and Cameron v. State, 415 S.W.3d 404, 409-10

(Tex.App. – San Antonio 2013, pet. granted) as support for said remark. See Brief

for Appellant, p. 17. She then quotes part of the discussion between her attorney

and Judge Flores just prior to jury selection; states that the Supreme Court has held

that a violation of the right to a public trial is structural error that does not require a

showing of harm; cites Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct.



                                            35
1544, 137 L.Ed.2d 718 (1997) as support for this remark; notes that the law also

recognizes that the right to a public trial was created for the benefit of the accused

and is thus a personal one; says that the trial court in this case did not allow her to

exercise her personal right to have her daughter present at a public proceeding; and

claims that a new trial is thus needed. See Brief for Appellant, pp. 17-18.

           Appellant’s arguments concerning this topic fail for the basic reason that

they rely on false factual premises that she ever made a request that her daughter

be allowed to be present during jury selection, that the trial court excluded her

daughter from the courtroom during jury selection, and that she ever complained

about her daughter allegedly not being allowed to be present during jury selection.

           After all, as the State has just demonstrated in describing the relevant facts,

what actually occurred was that Appellant repeatedly asked that her daughter be

allowed to sit with her during the court proceedings and that the trial court, without

any defense objection, denied that request because it, quite soundly, believed that

use of a qualified interpreter was more appropriate.

           The record further shows that Judge Flores expressed a concern about the

daughter being a witness who would hear the testimony of the other witnesses if

she were allowed to sit next to Appellant; that counsel had said that she might be a

witness, but not for the jury selection;7 and that Judge Flores had then told the


7
    The State is at a loss to understand this remark as no one is ever a witness during the jury selection process.



                                                             36
woman to step outside, without counsel objecting to said request in any manner,

much less urging a specific complaint about denial of the right to a public trial.

      Having shown that Appellant’s contention is based on factual premises

which are not supported by what the record shows had actually transpired, the

State would next point out that the Court of Criminal Appeals has recently

addressed the topic of exclusion of individuals during jury selection.

      First of all, in Cameron v. State, 2014 Tex.Crim.App. LEXIS 1536 (Oct. 8,

2014, rehearing granted), said Court addressed a situation in which the bailiff had

removed all spectators from the courtroom before voir dire began and then, after

the venire panel had been seated and the case had been called, defense counsel

remarked that he had noticed that the bailiff had done so, asked that family and

friends of his client be allowed to be present in the courtroom during the voir dire;

and indicated that, if they were excluded, he would put on the record an objection

since his client had a right to a public trial. Id. at *2-3. During the lengthy debate

which followed, the trial court repeatedly stated that there was no room in the

courtroom; counsel asked if the court was overruling his objection; the trial judge

repeatedly stated that he was not ruling and was just asking counsel where to put

the spectators; there was a discussion about putting chairs in the small hallway

outside of the courtroom; and the prosecutor noted that that would be a fire code

violation. Id. at *3-5.



                                          37
        As the discussion continued, the trial judge said that he recognized the right

to have people present, but simply did not know where to put them; that he was not

making a ruling denying the defense’s request; and that he would put members of

Appellant’s family in the courtroom if counsel told him where to put them. Id. at

*5. The court then went off the record and apparently continued the discussion,

but there was no indication that any spectators were allowed into the courtroom.

Id. at *5-6.

        The trial court later made a long statement about the configuration of the

courtroom and the fact that it was full of potential jurors. Id. at *6-8.

        The Fourth Court of Appeals had held that this situation violated Appellant’s

right to a public trial and reversed her conviction. See Cameron, 415 S.W.3d at

412.

        On original submission on discretionary review, a five-judge majority of the

Court of Criminal Appeals affirmed the Court of Appeals.8

        In doing so, the Court of Criminal Appeals’ majority first indicated that the

right to a public trial extended to voir dire proceedings; that violation of this right

is a structural error and does not require any showing of harm; that said right may

give way to other competing rights or interests, such as a defendant’s right to a fair

trial; and that those circumstances should, however, be rare, occurring only if (1)

8
  Presiding Judge Keller authored a dissenting opinion in which Judge Hervey joined, while Judge Keasler concur-
red without an opinion, and Judge Meyers dissented without an opinion.



                                                      38
there is an overriding interest (2) based on findings (3) that closure is essential to

preserve higher values, and (4) the closure is narrowly tailored to protect that

value. Id. at *8-9.    Said majority then stated that the trial court must also issue

findings specific enough for a reviewing court to determine if the closure was

properly ordered; that the party seeking to justify the closure has the burden of

proof of a specific overriding interest; that it must be likely that this interest would

be prejudiced in the current case; that the closure must be no broader than neces-

sary; and that the trial court has the burden to consider all reasonable alternatives

and make findings specific enough to support a closure. Id. at *9.

      In next rejecting the State’s argument that Cameron had not preserved her

complaint for appeal, the Court’s majority pointed out that the record very clearly

showed that trial counsel had brought the issue of the closed courtroom to the trial

court’s attention; that the court had refused to rule on that issue; that all spectators

had been removed from the courtroom; and that the trial judge had sought to justify

that fact. Id. at *9-12. It then analyzed the issue of whether said closure was

constitutionally justified and concluded that none of the reasons mentioned by the

trial court did so. Id. at *12-15.

      A two-judge dissent on original submission in Cameron indicated that the

question of whether Cameron’s friends and family had been allowed back into the

courtroom was disputed; argued that Cameron had failed to meet her burden to



                                          39
show that the voir dire was not open to the public; and noted that defense counsel

had never responded to the trial court’s suggestion that the doors be opened and the

specators be allowed to stand and watch voir dire. Id. at *16-18.

      On January 28, 2015, the Court of Criminal Appeals granted the State’s

motion for rehearing in Cameron and a decision on rehearing is currently pending.

      However, the Court of Criminal Appeals has recently addressed the precise

issue of preservation of error in regard to a contention that individuals were

excluded from the courtroom during jury selection which is implicated in this case.

See Peyronel v. State, 2015 Tex.Crim.App. LEXIS 708 (June 24, 2015).

      In that case, an unidentified woman that the record shows was part of the

defense had approached a juror and asked, “How does it feel to convict an innocent

man?” during a break in the punishment phase proceedings; the trial court had

excused all punishment phase witnesses from the courtroom on its own motion at a

conference following said comment; the State had asked the trial court to exclude

from the courtroom “female member of the defendant’s family; and defense coun-

sel had stated that he would respond “to that by saying that’s too broad to exclude

[Appellant’s] wife and daughter to create the impression in the jury’s mind that he

has absolutely no support whatsoever here”. Id. at *1-2. The State had defended

its request by noting that it would normally never ask for exclusion, but that it be-

lieved that the limited exclusion was necessary in this situation because it was clear



                                         40
throughout the trial that Peyronel had support, that the comment crossed the line

into what the State considered intimidation of a jury; and that the woman who had

made the comment was still unidentified. Id. at *2. The trial judge had agreed

with the State, but had also decided to exclude everyone in the gallery. Id. at *2.

      On appeal, Peyronel argued that he had preserved a complaint that his right

to a public trial was violated and that the closure of the courtroom had violated that

right for review and the State argued that the right to a public trial is subject to for-

feiture and that Peyronel’s complaint was not properly preserved. Id. at *3.

      The Court of Appeals agreed that Peyronel had preserved his claim, reversed

the trial court judgment as to punishment, and remanded the case for a new punish-

ment hearing. See Peyronel v. State, 446 S.W.3d 151, 159, 162 (Tex.App. – Hous-

ton [1st Dist.] 2014, pet. granted).

      The Court of Criminal Appeals then granted a petition for discretionary re-

view asserting that the court of appeals had erred in finding that the public-trial

issue was preserved for review when Peyronel did not ask the trial court to do any-

thing and did not alert the trial court to the specific grounds that he would raise on

appeal. See Peyronel, 2015 Tex.Crim.App. LEXIS 798, at *3-4.

      At the outset of its discussion of this issue, the seven-judge majority of the

Court pointed out that it had never directly addressed the issue of whether a per-

son’s right to a public trial is mandatory, subject to waiver, or can be forfeited



                                           41
through inaction; that the State had argued that the appellant had failed to preserve

her public-trial complaint for appeal in its recent Cameron decision; that it had,

however, not directly addressed the issue of whether a public-trial claim is subject

to the normal rules of procedural default in Cameron; and that its decision in said

case was not final because it had granted the State’s motion for rehearing, which

was still pending. See Peyronel, 2015 Tex.Crim.App. LEXIS 798, at *4.

      The majority opinion then noted that it had differentiated between rights that

are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture

in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993); that implementation of

mandatorily-enforced rights is not optional and thus cannot be waived or forfeited

by the parties; that some rights, while not capable of being forfeited, may be ex-

pressly waived by a defendant; that all but the most fundamental rights are thought

to be forfeited if not insisted upon by the party to whom they belong; and that

many constitutional rights fall into this category. See Peyronel, 2015 Tex.Crim.

App. LEXIS 798, at *5.

      The Court of Criminal Appeals’ majority then stated that it had to decide

which Marin category the right to a public trial falls within; that this was an issue

of first impression; and that it would thus look to other jurisdictions for guidance.

Id. at *5. It then indicated that at least one federal court of appeals had concluded

that the right to a public trial can be only waived; that other jurisdictions have held



                                          42
that the public-trial right is subject to the invited-error doctrine under state law or

can be waived by consent; that its research had revealed no jurisdictions that re-

quire the public-trial right to be implemented regardless of the parties’ wishes and

had instead found that the majority of jurisdictions addressing the issue have held

that said right may be forfeited9; and that many of those courts and even the United

States Supreme Court, have cited to Levine v. United States, 362 U.S. 610, 619, 80

S.Ct. 1038, 4 L.Ed.2d 989 (1960) for that proposition. See Peyronel, 2015 Tex.

Crim.App. LEXIS 798, at *5-8.

         The Court of Criminal Appeals’ majority then stated that it agreed with the

majority of courts which had addressed the issue; held that a complaint that a de-

fendant’s right to a public trial was violated is subject to forfeiture; and indicated

that it next needed to decide whether Peyronel had preserved his public-trial claim.

Id. at *6.

         In addressing that issue, the Court of Criminal Appeals’ majority noted that

the record showed that Peyronel was worried about the perception of the jury if no

one was present in the gallery to support him; observed that it was, however, hard-

ly clear from the record that Peyronel’s argument was the functional equivalent of

asserting that his constitutional right to a public trial was being violated; said that it


9
  In a footnote following this statement, the majority mentions several federal cases and cases from other state juris-
dictions; notes that Texas courts of appeals that have addressed the issue have unanimously reached the conclusion
that the right to a public trial may be forfeited; and explains that it is citing said unpublished opinions only for
illustrative purposes and not for precedential value. See Peyronel, 2015 Tex.Crim.App. LEXIS 798, n. 8 at *6-7.



                                                         43
agreed with Peyronel that he did not have to use magic language to preserve his

public-trial complaint for review; pointed out that Peyronel did, however, have the

burden to state the grounds for the ruling sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context; cited TEX. R. APP. P. 33.1; and stated

that Peyronel was instead trying to raise an abstract claim as an afterthought on

appeal. Id. at *8-9.

      The Court of Criminal Appeals’ majority thus sustained the State’s ground

for review and reversed the court of appeals’ ruling that Peyronel had preserved a

denial of the right to a public trial complaint for appellate review. Id. at 9.

      In her dissenting opinion, Judge Johnson contended that Peyronel’s object-

tion had clearly notified the trial court that he objected to the exclusion of all spec-

tators; that the trial court’s global exclusion effectively had closed the proceeding

to everyone and violated Peyronel’s right to a public trial; and that the court of

appeals judgment should thus be affirmed. See Peyronel, 2015 Tex.Crim.App.

LEXIS 798, at *10-14.

      The State would submit that the same reasoning as the Court of Criminal

Appeals utilized in the recent Peyronel decision applies to the instant case.

      After all, in the case presently being considered, Appellant repeatedly asked

the trial court to allow her daughter to sit with her in court, but never asserted a



                                           44
specific complaint about alleged denial of her right to a public trial or improper

exclusion of her daughter from the courtroom.

      In fact, the sole basis for Appellant’s current contention that she was denied

the right to a public trial is Judge Flores’ request that her daughter “step outside”

during the discussion of Appellant’s request just prior to the commencement of

jury selection.

      However, the record clearly demonstrates that Appellant never objected in

any manner, much less asserted a specific complaint that her right to a public trial

was violated, when the trial court asked the daughter to “step outside”.

      Under these circumstances, Appellant never put the trial court on notice that

she was asserting a challenge to an alleged violation of her right to a public trial.

      Therefore, one must conclude that Appellant has forfeited her right to assert

her current appellate complaint asserting that the trial court had denied a request

that her daughter be present during jury selection.




                                          45
                                       PRAYER


      WHEREFORE, PREMISES CONSIDERED, THE STATE prays that Appel-

lant's conviction and sentence be affirmed, in all respects.



                                         Respectfully submitted,


                                         RICARDO RODRIGUEZ, JR.
                                         CRIMINAL DISTRICT ATTORNEY
                                         HIDALGO COUNTY, TEXAS


                                         /s/ Theodore C. Hake
                                         THEODORE C. HAKE, ASSISTANT
                                         CRIMINAL DISTRICT ATTORNEY
                                         HIDALGO COUNTY, TEXAS
                                         STATE BAR NO. 08716800

                                         HIDALGO COUNTY COURTHOUSE
                                         EDINBURG, TEXAS 78539

                                         TELEPHONE #: (956) 318-2300
                                         TELECOPIER #: (956) 318-0407

                                         E-Mail: ted.hake@da.co.hidalgo.tx.us


                                         ATTORNEYS FOR THE STATE




                                           46
            CERTIFICATE OF COMPLIANCE WITH WORD LIMITS


      In compliance with TEX. R. APP. P. 9.4 (3) , as amended effective Decem-

ber 1, 2012, I hereby certify that this brief contains a total of 11,375 words, exclusive

of the cover page, Certificate of Interested Parties, Table of Contents, Index of

Authorities, Note Regarding Form of Citation to the Record, and Statement

Concerning Oral Argument.


                                             /s/ Theodore C. Hake
                                             THEODORE C. HAKE, ASSISTANT
                                             CRIMINAL DISTRICT ATTORNEY
                                             HIDALGO COUNTY, TEXAS




                            CERTIFICATE OF SERVICE


      I, THEODORE C. HAKE, hereby certify that I have served a copy of the

foregoing Brief for the State to Appellant Ofelia Larios’ appellate attorney Rolando

Garza, via electronic service at crimapp@yahoo.com.

      Dated this, the 20th day of August, 2015.



                                             /s/ Theodore C. Hake
                                             THEODORE C. HAKE, ASSISTANT
                                             CRIMINAL DISTRICT ATTORNEY
                                             HIDALGO COUNTY, TEXAS




                                           47
