        No. 06-15-00129-CR


IN THE COURT OF APPEALS FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS



 James Barcard Cunningham, Appellant

                   v.

       State of Texas, Appellee



     Anders Brief in support of
       Motion to Withdraw


         On appeal from judgment
   in cause number 14-04342-CRF-85
       In the 85th District Court for
           Brazos County, Texas
     Hon. Kyle Hawthorne, Presiding




                          Clint F. Sare
                          Texas Bar No. 788354
                          P.O. Box 1694
                          Bryan, Texas 77806
                          (979) 822-1505
                          Counsel for appellant
             IDENTITY OF PARTIES AND COUNSEL


Appellant:             James Barcard Cunningham

      Trial Counsel:   Jerry Gribble
                       PO Box 3302
                       Bryan, TX 77805

      Appellate Counsel:Clint F. Sare
                        P.O. Box 1694
                        Bryan, TX 77806



Appellee:              State of Texas

      Counsel:         Douglas Howell, III
                       300 E. 26th Street Ste. 310
                       Bryan, TX 77803




                            ii
                                             TABLE OF CONTENTS



Identity of Parties and Counsel ................................................................................ ii
Table of Contents .................................................................................................... iii
Index of Authorities ................................................................................................ iv
Statement of the Case ............................................................................................... 1
Anders Statement ..................................................................................................... 1
Potential Issues Presented ........................................................................................ 2
Statement of Facts .................................................................................................... 2
Summary of the Argument....................................................................................... 9
Argument ................................................................................................................. 9
   Potential Issue 1: Was the evidence legally sufficient to support Appellant’s
   conviction? ........................................................................................................... 9
   Potential Issue 2: Did the trial court err in overruling Appellant's objection to
   evidence of extraneous offenses?...................................................................... 13
   Potential Issue 3: Did the trial court err in permitting hearsay statements of a
   codefendant who was not subject to cross-examination? .................................. 16
   Potential Issue 4: Is Appellant entitled to a new trial due to juror misconduct?
   ............................................................................................................................ 17
Prayer for Relief ..................................................................................................... 18
Certificate of Compliance ...................................................................................... 19
with Brief limitations and Service ......................................................................... 19




                                                              iii
                                            INDEX OF AUTHORITIES

Cases

Evans v. State, 202 S.W.3d 158 (Tex.Crim.App. 2006) ........................................ 10

Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). ..................................... 1

Huffman v. State, 267 S.W.3d 902 (Tex.Crim.App. 2008 ..................................... 10

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);...... 9, 11

Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996)........................................ 10

King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) ............................ 5, 7, 12, 15

Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) ....................................... 11

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) ........................................ 11

Matchett v. State, 941 S.W.2d 922 (Tex.Crim.App. 1996) ................................... 10

McCray v. State, 861 S.W.2d 405 (Tex.App.--Dallas 1993, no pet.) .................... 10

Moff v. State, 131 S.W.3d 485 (Tex.Crim.App. 2004). ................................... 10, 13

Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. 2005) ..................................... 10, 14

Parrish v. State, 38 S.W.3d 831 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd)
  ............................................................................................................................ 18

Salazar v. State, 562 S.W.2d 480 (Tex.Crim.App. 1978) ..................................... 17

Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986) ........................................ 10

Trout v. State, 702 S.W.2d 618 (Tex.Crim.App. 1985) ......................................... 18

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).......................................... 10

Uranga v. State, 247 S.W.3d 375 (Tex. App.--Texarkana 2008) .......................... 17

Williamson v. State, 244 S.W.2d 202 (Tex.Crim.App. 1951) ............................... 11




                                                               iv
Statutes

Tex. Pen. Code § 46.04 .......................................................................................... 11


Rules

Tex. R. App. P. 33.1 ............................................................................................... 16

Tex. R. App. P. 44.1 ............................................................................................... 18

Tex. R. App. P. 9.4 ................................................................................................. 19

Tex.R.App.P. 21.3 .................................................................................................. 17


Constitutional Provisions

Tex. Const. art. V § 13 ........................................................................................... 10




                                                           v
                         STATEMENT OF THE CASE

      Appellant brings this appeal from a conviction for the third degree

felony offense of Unlawful Possession of a Firearm. He was found guilty by

a jury and the punishment, enhanced by two prior convictions, was assessed

by the trial court at twenty years confinement.


                            ANDERS STATEMENT

      After a thorough review of the record the undersigned counsel has

determined there are no meritorious issues which would support reversal or

modification of the trial court’s judgment. This brief is presented in support

of counsel’s motion to withdraw under the procedures outlined in Anders v.

California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967);

and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). In accordance

with those procedures, this brief discusses the evidence presented at trial,

objections to that evidence, potential issues for appeal and why those issues

do not support an appeal. Appellant has been provided with a copy of this

brief and informed of his right to file a response, to review the record in

preparing any response, and the right to file a petition for discretionary

review if the conviction is affirmed.
                        POTENTIAL ISSUES PRESENTED

Potential Issue 1: Was the evidence legally sufficient to support Appellant’s
conviction?

Potential Issue 2: Did the trial court err in overruling Appellant's objection
to evidence of extraneous offenses?

Potential Issue 3: Did the trial court err in permitting hearsay statements of
a codefendant who was not subject to cross-examination?

Potential Issue 4: Is Appellant entitled to a new trial due to juror
misconduct?


                         STATEMENT OF FACTS
      The events giving rise to this prosecution occurred June 23, 2014.

That day Monica Peugh was working as a cashier at a convenience store in

Bryan. (4 RR 57). She saw Appellant, who she knew as a regular customer,

with his girlfriend and "three or four" other people she did not recognize. (4

RR 60-61). She later testified to hearing Appellant say to someone on the

phone, "we're going to take care of this right now" before the group left the

store. (4 RR 61, 63).

      A security video from the convenience store showing Appellant and

others get into a tan 4-door car identified as belonging to Appellant. (4 RR

63-66, Ex. 46). It showed the car going down LaBrisa Street in the direction

of Gato Street. Gato Street is short residential street which is a cul-de-sac.




                                       2
(4 RR 42). Residents of that street include Sheryl Wilson, Katrina Rush, and

David Johnson.

      That day Wilson had set up a small swimming pool for the children to

play in. (4 RR 34). She saw two boys go up to her neighbor David Johnson

and tell him "they're on their way." She knew there had been a fight the day

before involving Johnson and she took her daughter to another neighbor's

house. (4 RR 35).

      David Johnson lived with Katrina Rush on Gato. (4 RR 71). Johnson

knew Appellant and they were friends at one time.          Over Appellant's

objection he was allowed to make reference to a dispute that arose from a

drug sale to Appellant. (4 RR 74-77). He testified he had a fistfight with

Appellant on June 22nd over that sale. On the 23rd, the two argued again on

the telephone and, according to Johnson, Appellant said he was coming back

to Johnson's house. (4 RR 75).

      Johnson saw Appellant's car and had already gotten a shotgun

"ready." (4 RR 78). His trial testimony was not consistent on whether he

told his daughter to get in the house or she was still in the yard. (4 RR 78,

80, 85). Consistent with Wilson’s statement, two boys from the

neighborhood who had been at the convenience store came and told Johnson

about Appellant.    (4 RR 77).    He soon saw Appellant's car, which he



                                     3
described as a brown Buick, and grabbed the shotgun. (4 RR 78). At trial

Johnson testified Appellant put a gun outside the front passenger side

window and fired two times. (4 RR 78, 80, 87-88). Johnson fired back at the

car with his shotgun a total of five times. (4 RR 79).                     That caused

Appellant's car to crash into another car. (Id.) In his version of events, the

driver "kept trying to punch the gas" and left marks on the road.1 (Id.)

       Johnson claimed he went up to the car and, after getting Appellant to

drop his gun (or guns 2), three occupants ran away. (4 RR 82). In addition to

Appellant, Johnson identified the driver as “K-Mo” (4 RR 89) and the rear

seat passenger as David Edwards. (4 RR 91). Johnson testified Appellant

did not have a gun when he ran away (4 RR 90), and that he was not wearing

a shirt. (4 RR 93). At the time he told an investigating officer Appellant was

wearing black pants, at trial he initially testified Appellant was wearing

shorts. (4 RR 93, 103).

       Johnson's girlfriend Katrina Rush, also identified Appellant as being

in the front passenger seat and firing a handgun. (4 RR 116). She said the

daughter was out in the yard. (4 RR 117, 119). In her version of events,




1
  This testimony was controverted at trial by the investigating officer who determined the
tire marks were not lined up with the car's tires. (4 RR 177).
2
  (4 RR 89).

                                            4
Appellant was wearing a white shirt and black pants (4 RR 128) and holding

a black and silver gun. (4 RR 133).

      Another witness, Dashon King, was the owner of the car which was

hit by Appellant's car after the shooting. He saw three people get out of the

car and run. (4 RR 146). He also recognized Appellant and said he came

out of the rear passenger window. (4 RR 146, 150, 153). Unlike Johnson's

version, where Appellant dropped the gun, King testified Appellant ran off

with the gun. (4 RR 149).

      Erin Horan did not live on Gato Street but on the second floor of an

apartment building on a nearby street. She heard the shots and went to the

window to look. (4 RR 49). She called 911 and described seeing a man in a

white t-shirt and jeans and a second man with a white shirt and black pants

carrying a silver handgun.    (4 RR 52; 5 RR 9).       She did not identify

Appellant at trial and admitted she would not be able to identify the person

she saw. (4 RR 53).

      Another witness Barbara Ortiz said she saw a man wearing a white t-

shirt and black pants and carrying a gun in his right hand ran away from the

area and got in a car. (4 RR 217). She did not identify Appellant.

      Appellant was indicted on September 4, 2014. (CR 5). The State

alleged Appellant had been convicted of a felony in 2010 and, on June 23,



                                      5
2014, a date less than five years from his release following that conviction,

possessed a firearm.    (CR 5).    It contained an enhancement paragraph

alleging a prior conviction of possession of a controlled substance.

      On the Friday before trial, the State also gave notice of an intent to

enhance punishment to that for a habitual felon. (CR 45). The case was

called for trial Monday, June 15, 2015.       On Appellant's objection, the

habitual felon notice was quashed. (CR 42).       The record does not reflect

adverse rulings on other pretrial motions. A jury and alternate juror were

selected without disputed challenges for cause or Batson challenges. (CR

48, 3 RR 151).      Appellant stipulated to a prior felony conviction for

possession of a firearm by a felon. (4 RR 12). Through counsel appellant

pled not guilty. (2 RR 22).

      The jury heard from each of the witnesses as described above. They

also heard from officer Steven Fry who was the sponsoring witness for

photographs taken of Appellant that day. In the photograph Appellant is not

wearing a shirt but does have black pants and marks on his skin which Fry

asserted were consistent with shotgun. (4 RR 171).

      Officers found a .380 caliber handgun in Appellant’s car which

matched the caliber of shell casings found in the street.        (4 RR 176).

Although officers took samples from Appellant to determine if there was



                                      6
residue showing he had fired a gun, those samples were not tested. (4 RR

179-181). Fry admitted that the key witnesses, Johnson, Rush, and King

were not truthful when first interviewed. (4 RR 186). Johnson had picked

up the shell casings, threw them away, hid the shotgun and left the scene

before police arrived. (4 RR 187). This was supported by the testimony of

Erin Horan who saw someone climb out of a window, dressed how Johnson

had been dressed, and hid a "long gun." (5 RR 6). Fry also disclosed that

there was a dispute between Johnson, Rush and Appellant because they

accused him of burglarizing their home. (4 RR189).

      Fry interviewed the other person identified as being in the car, David

Edwards. (4 RR 193). Edwards did not testify at trial because he had been

charged in connection with the event (4 RR 193) and would have asserted

his Fifth Amendment privilege. (5 RR 24). Through cross examination

Appellant elicited from Fry that he "determined" Edwards was in the front

passenger seat when the shots were fired. (4 RR 195, 200). Appellant

elicited that Edwards admitted to firing from the front window. (4 RR 200).

Fry determined that Appellant was in the rear seat (4 RR 199), that

Appellant dropped the .380 handgun found in the front seat. (4 RR 195).

Fry testified without objection that Johnson told him Appellant had a silver




                                     7
gun when he got out of the car and ran. (4 RR 195-96). This was, of course,

in conflict with Johnson’s trial testimony.

      Fry was also called as a defense witness, Appellant solicited from Fry

that Edwards had said he fired a gun and that Appellant also had a gun. (5

RR 16-17). Appellant did not testify in the first phase of trial. (5 RR 32).

      There were no challenges to the jury charge. (5 RR 37; CR 27). It did

not contain any lesser-included offenses. The jury found Appellant guilty as

charged (CR 36) and made a deadly weapon finding. (5 RR 87; CR 37).

Because punishment was to be assessed by the Court, the jury was

discharged.

      Before the punishment phase a juror disclosed to the trial judge that

another juror made a statement about knowing “all these people.” (6 RR 5).

The record was not further developed on the extent of her knowledge.

      During the punishment hearing the State presented evidence without

objection that he was a “known gang member.” (6 RR 15-27). The State

presented evidence of eleven prior convictions. (6 RR 36-50; Ex. 59-69).

The defense presented no evidence at the punishment phase. (6 RR 53-54).

On June 18, 2015 the trial court assessed punishment at 20 years

confinement. (CR 59). The court certified Appellant’s right of appeal (CR




                                       8
6) and Appellant timely perfected appeal (CR 54). The court signed a

judgment nunc pro tunc on July 10, 2015. (CR 19).




                      SUMMARY OF THE ARGUMENT

      The record fails to show a meritorious ground to support the appeal.

Appellant's appointed counsel seeks to withdraw and presents this brief in

support of his motion to withdraw. This brief discusses some of the issues

examined to determine the appeal is not meritorious.


                                ARGUMENT


Potential Issue 1: Was the evidence legally sufficient to support
Appellant’s conviction?

Applicable Law

      The standard by which a court must review the legal sufficiency of the

evidence is well established and need not be recited at length here. It is

sufficient to note a reviewing court must determine whether, after viewing

all the evidence in the light most favorable to the finding of guilt, any

rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979); Jones v. State, 944 S.W.2d 642, 647



                                     9
(Tex.Crim.App. 1996). Review of the evidence in the light most favorable

to the finding does not mean an appellate court considers only that evidence

which supports the verdict. Evans v. State, 202 S.W.3d 158, 165 n.27

(Tex.Crim.App. 2006). Even if a trial court erred in admitting evidence, that

evidence may be considered in evaluating sufficiency.      Moff v. State, 131

S.W.3d 485, 488 (Tex.Crim.App. 2004). As the exclusive judge of

credibility, a jury may choose to believe or disbelieve all or any part of any

witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.

1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.--Dallas 1993, no

pet.). Introduction of conflicting evidence does not render evidence of guilt

insufficient. Matchett v. State, 941 S.W.2d 922 (Tex.Crim.App. 1996).

      To support a conviction, the jury must unanimously agree on a single

criminal act. Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005). See

also, Tex. Const. art. V § 13. The unanimity requirement is intended to give

effect to the standard of proof of beyond a reasonable doubt. See United

States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir. 1977). Jurors need not

agree on the specific manner in which the offense was committed, only the

same criminal act.    Huffman v. State, 267 S.W.3d 902 (Tex.Crim.App.

2008).




                                     10
      Sufficiency is measured against a hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A

hypothetically correct jury charge for the case would be one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily

restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id. at 239-40.

Circumstantial evidence must be reviewed with the same scrutiny as other

evidence of an offense. Laster v. State, 275 S.W.3d 512, 520

(Tex.Crim.App. 2009). While a factfinder may make reasonable inferences

from the evidence, Jackson, supra, an inference upon another inference will

not support a jury finding. Williamson v. State, 156 Tex.Crim. 520, 244

S.W.2d 202, 204 (1951).

      The elements of the offense required the State to establish 1) appellant

had been convicted of a felony, 2) he was in possession of a firearm 3)

before the fifth anniversary of release from confinement or parole. Tex. Pen.

Code § 46.04(a).



Application

      Appellant stipulated to his prior felony conviction and that it occurred

in 2010. (4 RR 12). There is no dispute that the date of the event alleged in



                                     11
the indictment was less than five years from that felony conviction. (CR 5).

There was no dispute that a firearm was present.         Several witnesses

including Johnson (4 RR 78, 80, 87), Rush (4 RR 116), King (4 RR 149),

and Horan (4 RR 52) testified to seeing at least one handgun. The disputed

issue was whether Appellant was in possession of a firearm.

      There were significant conflicts in the evidence concerning whether

Appellant was seated in the front or back of the Buick automobile. Johnson

and Rush testified he was in the front seat and fired the gun (4 RR 78, 80,

87-88, 116) while King testified Appellant was in the rear seat (4 RR 146,

150, 153). The jury also had before it the statements of David Edwards

through detective Fry. There was also a difference in the evidence

concerning whether Appellant left the scene with a gun or had dropped it. (4

RR 82, 90).

      To support a finding of guilt beyond a reasonable doubt it was not

necessary that the jury agree on precisely when Appellant possessed a

firearm, as long as it was on the date alleged in the indictment. As the

exclusive judge of credibility, the testimony of Johnson, Rush and King that

they saw Appellant possess a handgun on the date alleged was sufficient to

support a finding of guilt beyond a reasonable doubt.




                                     12
      The jury also had before it the hearsay statements of Edwards, who

was identified as being in the car, that Appellant possessed a handgun. (4

RR 195-96; 5 RR 16-17). The jury could consider, and thus this court must

consider, this evidence even if it was improperly introduced. Moff, 131

S.W.3d at 488.

      Under the applicable standards, the evidence was legally sufficient to

support a finding of each element beyond a reasonable doubt.



Potential Issue 2: Did the trial court err in overruling Appellant's
objection to evidence of extraneous offenses?

      Shortly before trial the State informed defense counsel it intended to

present evidence that Appellant was at the home of David Johnson with a

gun the day before the date alleged in the indictment. (3 RR 13). Appellant

objected to the evidence on the basis there was a risk some members of the

jury could vote to convict based on that evidence because the indictment

alleged the offense was "on or about" June 23, 2014. (Id.). The State's

initial argument was that it would be permissible for some jurors to find

Appellant guilty if he possessed a firearm any time before the fifth

anniversary of his release. (3 RR 14). Because possession on a different

date would be a different criminal act, admission of the evidence on that




                                     13
basis would be error. Ngo, 175 S.W.3d at 745. The trial court also denied

Appellant's request to strike the "on or about" language. (3 RR 16).

      During trial, Appellant objected to testimony of a drug sale between

Appellant and Johnson's brother (4 RR 72) and the presence of a gun on

June 22nd. (4 RR 74). In describing the anticipated testimony, counsel for

the State expected Johnson to testify to the possession of a gun by Appellant

on June 22nd. (4 RR 74). The State argued the events were not extraneous

because it was the genesis of the dispute on both June 22nd and 23rd and

was part of the context of the offense. (4 RR 73). It also argued the

evidence was relevant to motive and intent.         (4 RR 75).     Appellant's

objection was overruled as was his objection that the probative value was

outweighed by the danger of unfair prejudice. (4 RR 74, 75). There was no

separate objection on the lack of notice of that extraneous offense.

      Following those objections, Johnson did not testify to Appellant

having a gun on the 22nd. (4 RR 75-84). Consequently, even if the trial

court's ruling was error, it did not result in reversible error. Under the

standard for evaluating harm from non-constitutional errors, such errors

must be disregarded unless they affect a substantial right. See, Tex. R. App.

P. 44.2. A substantial right is a right that is "affected when the error had a

substantial and injurious effect or influence in determining the jury's



                                      14
verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). This

issue presents no meritorious basis to support an appeal.




                                     15
Potential Issue 3: Did the trial court err in permitting hearsay statements
of a codefendant who was not subject to cross-examination?
Relevant Facts

      The trial court admitted testimony of Detective Fry concerning

statements made by witness David Edwards.          Some of those statements

supported the essential elements of the offense, including that Appellant

possessed a firearm. (5 RR 16-17).         Edwards was not called to testify

because it was undisputed he would assert his fifth amendment privilege. (5

RR 24).       The key portions of that testimony was elicited by Appellant’s

counsel on cross examination of Fry, and on direct examination when called

as a defense witness. (5 RR 16-17).

      Although the testimony was clearly hearsay, it was solicited through

questioning by defense counsel. Any objection to the testimony on the basis

of hearsay or denial of the right of confrontation were waived. See, Tex. R.

App. P. 33.1 (preservation of complaint on appeal requires timely objection).

Because any complaints concerning this testimony have not been preserved

for appeal.




                                      16
Potential Issue 4: Is Appellant entitled to a new trial due to juror
misconduct?
      Facts.

         During jury selection the members of the panel was asked if they

recognized the names of the witnesses. (3 RR 82). Two recognized the

name David Johnson. Two others knew officers listed as a witness. (3 RR

83). One was unidentified and knew officer Aguilar.

         After the jury was discharged, one of the jurors informed the trial

judge that, after reaching a verdict, juror Gloria Byrtle had made a statement

about “knowing all these people.”        (6 RR 5-6).    There was no further

discussion or request on the matter.

         Applicable Law.

         The failure of a juror to accurately answer questions during voir dire

can deprive a defendant of due process and establish entitlement to a new

trial.     Tex.R.App.P. 21.3(d); Salazar v. State, 562 S.W.2d 480

(Tex.Crim.App. 1978). When a juror realizes they know a witness or victim

during trial, there is no misconduct. Uranga v. State, 247 S.W.3d 375, 377

(Tex. App.--Texarkana 2008) aff'd, 330 S.W.3d 301 (Tex.Crim.App. 2010).

         To raise an issue of juror misconduct on appeal, the record must be

sufficiently developed to establish the misconduct.       That must be done




                                       17
through a motion for new trial and evidentiary hearing. Trout v. State, 702

S.W.2d 618, 620 (Tex.Crim.App. 1985).

      Application.

      No motion for new trial was filed and the record is not sufficiently

developed to support a claim for juror misconduct. Because the trial court

was not asked to grant a new trial on that basis, it could not commit error in

failing to grant a new trial. Tex. R. App. P. 33.1. Appellant’s remedy to

develop the record on juror misconduct would be through a writ of habeas

corpus. See, e.g. Parrish v. State, 38 S.W.3d 831, 833 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref'd). The record does not support presentation of

this issue as a meritorious ground on appeal.


                             PRAYER FOR RELIEF

      Movant prays this court review the record, grant movant's motion to

withdraw and, if an arguable ground for appeal is shown in the record,

remand for appointment of new counsel. If no arguable ground is shown,

affirmance of the trial court’s order is required. Tex. R. App. P. 44.1.


                          Respectfully submitted:

                                        __/s/__Clint F. Sare_________
                                        Clint F. Sare
                                        Texas Bar Num. 788354
                                        P.O. Box 1694

                                      18
                                       Bryan Texas, 77806
                                       (979) 822-1505
                                       cfs@sarelaw.com


                     CERTIFICATE OF COMPLIANCE
                  WITH BRIEF LIMITATIONS AND SERVICE


       I certify the foregoing document does not exceed the word count
limitation of Rule of Appellate Procedure 9.4(i) based on the computer
software word count of 4059 words.

       I certify a copy of the foregoing brief was served on Douglas Howell,
III counsel for the State by personal service to 300 E. 26th Street Ste. 310,
Bryan, TX 77803 on November 20, 2015.


                                             __/s/__Clint F. Sare_____
                                             Clint F. Sare




                                     19
