                                                                               ACCEPTED
                                                                           12-14-00368-CR
                                                              TWELFTH COURT OF APPEALS
                                                                            TYLER, TEXAS
                                                                       9/3/2015 3:26:28 PM
                                                                                 Pam Estes
                                                                                    CLERK

                       No. 12-14-00368-CR

                                                          FILED IN
                                                   12th COURT OF APPEALS
                            IN THE                      TYLER, TEXAS
                      COURT OF APPEALS              9/3/2015 3:26:28 PM
           TWELTH DISTRICT OF TEXAS AT          TYLER PAM ESTES
                                                            Clerk
________________________________________________________________

                  JOHN CALVIN MARSHALL,
                        APPELLANT

                                V.

                    THE STATE OF TEXAS,
                         APPELLEE

_________________________________________________________________

                      APPELLEE’S BRIEF
________________________________________________________________

           On appeal from Cause Numbers CR11-00070
                   294th Judicial District Court
                    Van Zandt County, Texas
________________________________________________________________

                      APPELLEE’S BRIEF

           Van Zandt County Criminal District Attorney
               Richard A. Schmidt, First Assistant
                  State Bar Number 24043907
                400 S. Buffalo, Canton, TX 74103
                 903-567-4104 – 903-567-6258fx

                  Attorney for the State of Texas




                                 1
IDENTITIES OF PARTIES

APPELLANT:      John Calvin Marshall

Trial & Appellate Attorneys for the Appellant:

     Dean White                  Nolan White
     690 West Dallas,            690 West Dallas
     Canton, TX 75103            Canton, TX 75103
     dwatty@etcable.net          nwatty@etcable.net

Attorneys for the State at Trial and on Appeal:

     Richard A. Schmidt                Chris Martin
     1st Asst. Crim. Dist. Att.        Criminal District Attorney
     400 S. Buffalo                    400 S. Buffalo
     Canton, TX 75103                  Canton, TX 75103
     rschmidt@vanzandtcounty.org       chrismartin@vanzandtcounty.org




                                   2
                       TABLE OF CONTENTS

                                                         PAGE

IDENTITIES OF PARTIES AND COUNSEL                        2
INDEX OF AUTHORITIES                                     4
STATEMENT OF THE CASE                                    5
ISSUES PRESENTED                                         5
   ISSUE NUMBER ONE:           The trial court did not
   err by denying Appellant’s motion to suppress.
   ISSUE NUMBER TWO:           The trial court did not
   err by permitting the State to introduce 404(b)
   evidence through witness Jean Mullins.
   ISSUE NUMBER THREE: The trial court acted
   properly by excluding the irrelevant and improper
   testimony of Martha Wetherholt and did not deny
   Appellant his right to present a defense.
   ISSUE FOUR: The State’s argument to the jury
   was proper and misconstrued by Appellant’s brief.

SUMMARY OF THE FACTS                                     5

ISSUES PRESENTED WITH ARGUMENT                           7

PRAYER                                                   21

CERTIFICATE OF SERVICE                                   22

CERTIFICATE OF COMPLIANCE                                22




                                  3
                      INDEX OF AUTHORITIES

                                                               PAGE
                        STATUTES & CODES

Tex. R. of Evid. 404(b)…………………………………………                        9, 10, 12

Tex. R. of Evid. 412…………………………………………….                         16, 17

Tex. R. of Evid. 511. …………………………………………...                      8

TEX. CRIM. PROC. ART. 38.22(3)…………………………..                     8

                             CASE LAW

Alonzo v. State, 67 S.W.3d 346, 350, 2001 Tex. App.
LEXIS 8489, *1 (Tex. App. Waco 2001). ………………………..                   16-18

Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)..        10

Corley v. State, 987 S.W.2d 615, 617, 1999 Tex. App.
LEXIS 1221, *1 (Tex. App. Austin 1999)………………………..                   12,11

Faison v. State, 59 S.W.3d 230, 235, 2001 Tex. App.
LEXIS 2718, *1 (Tex. App. Tyler 2001). ……………………….                   11

Gomes v. State, 9 S.W.3d 373, 379 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref'd)………………………………………                       9

Hinojosa v. State, 433 S.W.3d 742, 747, 2014 Tex. App. LEXIS
4884, *1, 2014 WL 1800317 (Tex. App. San Antonio 2014)……..          20

Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005)….       10

Sims v. State, 273 S.W.3d 291, 292, 2008 Tex. Crim. App.
LEXIS 820, (Tex. Crim. App. 2008). ………………………………..                   10

Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim. App. 2002). ….     10

                                   4
TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL:


          The State of Texas, Appellee, by and through her attorney of

record, Richard A. Schmidt, files this response brief on appeal:

                                STATEMENT OF THE CASE

          Appellee accepts and adopts Appellant’s statement of the case as

outlined in Appellant’s brief and incorporates it herein for all purposes.

                                     ISSUES PRESENTED

ISSUE NUMBER ONE:           The trial court did not err by denying
Appellant’s motion to suppress.
ISSUE NUMBER TWO:           The trial court did not err by permitting the
State to introduce 404(b) evidence through witness Jean Mullins.
ISSUE NUMBER THREE: The trial court acted properly by excluding
the irrelevant and improper testimony of Martha Wetherholt and did
not deny his right to present a defense.
ISSUE FOUR: The State’s argument to the jury was proper and
misconstrued by Appellant’s brief.

                                     SUMMARY OF FACTS

          The victim in this case, Carolyn Walters, was casually acquainted

with Appellant, John Marshall, through her work and with business

dealings with Appellants wife.                     IV RR 15-16.1            On April 23, 2011,

Appellant entered the home of Carolyn Walters without her consent or

invitation. IV RR 14. After entering Carolyn Walters’ residence, and

1
    RR refers to Reporter’s Record; EH refers to the record of the evidentiary hearing

                                                     5
being confronted by Carolyn Walters as to why he was there, Appellant

pushed her into a bedroom, began removing his clothing and the

clothing of Carolyn Walters, pinned her to the bed, and began

attempting to penetrate her vagina with his flaccid penis. IV RR 17-23.

     In an attempt to get Appellant to leave, Carolyn Walters began

ridiculing Appellant’s impotence. IV RR 24. Appellant then got dressed

and left Carolyn Walters’ residence with her following behind him

verbally attacking Appellant. IV RR 24-25. At no point did Carolyn

Walters give Appellant consent to be in her residence and at no point

did Carolyn Walters consent to sexual contact with Appellant. IV RR

24-25.

     Carolyn Walters did not call the police because she did not think

she would be believed due to Appellant’s status in the community. IV

RR 25. Ultimately, Carolyn Walters was able to make contact with

Matthew Jackson, a family friend, who contacted the Canton Police

Department. II RR 204. The Canton Police Department dispatched

Sergeant Steve Hall to investigate a possible sexual assault to 1230 Big

Rock St (the residence of Carolyn Walters). II RR 38, 40. Sergeant Hall

contacted Detective Michael King who arrived on scene approximately


                                   6
one hour later. II RR 41. Also arriving on scene was Carla Ward, an

employee of the East Texas Crisis Center. II RR 89. Ms. Walter

wouldn’t communicate with the police or identify the Appellant stating

only that he was a prominent member of the community and that she

wouldn’t be believed. II RR 50. Based on his knowledge of a prior

incident that was sexual in nature and involving a prominent member

of the community, Detective King contacted the alleged victim of that

prior incident, Jean Mullins, for help in identifying a potential suspect.

II RR 113.     Jean Mullins eventually spoke with Ms. Walter and

convinced her to speak with police. IV RR 29. Ms. Walter then spoke

with Detective King and relayed the events as she testified to at trial

and as described above. IV RR 31. Jean Mullins also testified about

the incident that she experienced involving Appellant. III RR 89-111.

                  ARGUMENT AND AUTHORITIES

ISSUE NUMBER ONE:          The trial court did not err by denying
Appellant’s motion to suppress.

     On or about the 29th Day of April 2011, the Appellant was arrested
for burglary with intent to commit sexual assault. EH RR 21. Appellant
complains that Detective Michael King, of the Canton Police
Department, denied him the right to private conversation with
individuals who have privilege with the Appellant.             Appellant

                                    7
unsuccessfully attempted to contact an attorney in the presence of
Detective King. EH RR 51. Appellant then contacted his wife in the
presence of Detective King and had a brief conversation with her.
These phone calls were recorded by Detective King and took place
during the routine book in process of the Appellant and at the
Appellant’s request. EH RR 42-46.
             The Appellant characterizes Detective King’s presence and
recording of Appellant’s side of the conversations during the Appellant’s
attempt to make phone calls as a violation of the Fifth and Sixth
Amendments to the Constitution of the United States, applicable State
constitutional law and Article 38.22 of the Texas Code of Criminal
Procedure.     Although the Appellant has the right to confidential
communications with counsel, that protection can be waived by a
defendant. Appellant initiated the telephone calls in the presence of
Detective King. The Appellant never requested a private phone or area
in which to make his phone calls, nor was the Appellant denied that
opportunity at a later date or time. EH RR 45, 51. The Appellant had
no conversation with an attorney while in the presence of Detective
King. EH RR 20-57. Any privilege enjoyed by the Appellant in the
communications with his wife was voluntarily waived by the Appellant
when he initiated the telephone call in the presence of Detective King.
See Tex. R Evid. 511.
             Article 38.22 generally conditions the evidentiary use of a

defendant's statement stemming from custodial interrogation on



                                    8
compliance with its procedural safeguards. See TEX. CRIM. PROC.

ART. 38.22(3).

      However, article 38.22 does not preclude the admission of
      statements that do not result from custodial interrogation.
      See TEX. CODE CRIM. PROC. ANN. art. 38.22(5) (Vernon
      2005); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El
      Paso 1995, no pet.). If either the "custodial" or the
      "interrogation" predicates are not met, article 38.22 does not
      apply.

      Gomes v. State, 9 S.W.3d 373, 379 (Tex. App.--Houston [14th
Dist.] 1999, pet. ref'd).

      In the instant case, the Appellant was in custody. However, he

was not being interrogated as contemplated by article 38.22.           Any

statements he made in the presence of Detective King were voluntary

and any privileges that may have been enjoyed by the Appellant were

waived when the Appellant knowingly and voluntarily made telephone

calls in the presence of Detective King. See Id at 379.

ISSUE NUMBER TWO:           The trial court did not err by permitting the
State to introduce 404(b) evidence through witness Jean Mullins.


      Appellant’s second issue of appeal is the trial court’s ruling

allowing 404(b) evidence to be introduced against Appellant

through the testimony of Gene Mullins.       At trial, Ms. Mullins



                                    9
testified about an assaultive incident that she suffered at the

hands of the Appellant. III RR 94-.

     Generally, a trial court’s decision to admit evidence is reviewed

under an abuse of discretion standard. See Martin v. State, 173 S.W.3d

463, 467 (Tex. Crim. App. 2005). The Appellate Court must uphold the

trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Willover v. State,

70 S.W.3d 841, 845 (Tex.Crim. App. 2002). An Appellate Court should

not reverse a trial court’s ruling admitting evidence unless that ruling

falls outside the zone of reasonable disagreement. See Burden v. State,

55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

           As a general rule, “evidence of extraneous offenses is
     inadmissible at the guilt phase of trial to prove action in
     conformity therewith. Tex. R. Evid. 404(b). . . . But Rule 404(b)
     does allow for the admission of extraneous-offense evidence at the
     guilt phase of trial for specific, non-character-conformity purposes,
     such as to prove motive, opportunity, intent, preparation, plan,
     etc.

Sims v. State, 273 S.W.3d 291, 292, 2008 Tex. Crim. App. LEXIS 820,

(Tex. Crim. App. 2008).

     Furthermore, the Appellate Courts have held that:

     Identity and the rebuttal of defenses are both valid purposes
     for admitting evidence under Tex. R. Evid. 404(b). To be

                                    10
     admissible to show identity, an extraneous offense must be
     so similar to the offense charged that the offenses are
     marked as the accused's handiwork. By raising a defensive
     theory, a defendant opens the door for the State to offer
     rebuttal testimony regarding an extraneous offense if the
     extraneous offense has common characteristics with the
     offense for which the defendant was on trial.

Faison v. State, 59 S.W.3d 230, 235, 2001 Tex. App. LEXIS 2718,

*1 (Tex. App. Tyler 2001).

     In addition, proof of intent has been held a proper use of

404(b) evidence when consent of the victim is at issue. The Court

in Corley v. State engaged in a detailed discussion of the matter

which is on point here:

     When a defendant is charged with aggravated sexual
     assault, the State is required to prove the defendant
     intentionally caused penetration of complainant's sexual
     organ without her consent. See Wiggins v. State, 778 S.W.2d
     877, 882 (Tex. App.-Dallas 1989, pet. ref'd). When, as here, a
     defendant charged with aggravated sexual assault raises the
     defense of consent, he disputes his intent to commit the
     offense and thereby places his intent at issue. Wiggins, 778
     S.W.2d at 884-85 (citing Rubio v. State, 607 S.W.2d 498, 501
     (Tex. Crim. App. 1980)).        …Evidence of other sexual
     assaults may be relevant to prove a defendant had the intent
     to commit sexual assault as charged. See, e.g., Webb v.
     State, 995 S.W.2d 295, 299 (Tex. App.-Houston [14th Dist.]
     1999, no pet.) (other sexual assaults relevant to prove intent
     in charged sexual assault); Corley v. State, 987 S.W.2d 615,
     619 (Tex. App.-Austin 1999, no pet.) (past attack on woman
     relevant to prove defendant's intent to commit attempted
     aggravated sexual assault); Suarez v. State, 901 S.W.2d 712,

                                   11
     721 (Tex. App.-Corpus Christi 1995, pet. ref'd) (en banc)
     (other sexual assault committed during medical exam
     relevant to prove defendant's intent to commit sexual
     assault during a different medical exam); Duckworth v.
     State, 833 S.W.2d 708, 711 (Tex. App.-Beaumont 1992, no
     pet.) (other acts of aggravated sexual assault relevant to
     prove intent in charged aggravated sexual assault). Here,
     the trial court could reasonably have determined the
     extraneous offense evidence was relevant to the issue of
     intent. Thus, we conclude the trial court did not abuse its
     discretion in finding the extraneous offense evidence had
     relevance apart from its value to show character conformity.
     McCoy v. State, 2000 Tex. App. LEXIS 6054, *8-9, 2000 WL
     1246455 (Tex. App. Dallas Sept. 5, 2000). Where intent is a
     material issue and is not inferable from the act itself,
     evidence of other acts probative of such intent is relevant.
     Where the State's direct evidence, however, clearly shows
     the intent element of the crime and that evidence is
     uncontradicted by the defendant, the offer of other crimes is
     unjustified due to lack of relevancy.

Corley v. State, 987 S.W.2d 615, 617, 1999 Tex. App. LEXIS 1221,

*1 (Tex. App. Austin 1999).

     Here, the 404(b) testimony of Gene Mullins was relevant to the

issue of identity, intent, and absence of mistake. III RR 94-. Mullins

testified that sometime in late 2010 or early 2011, and prior to the case

at issue here, Appellant entered the residential building that housed

the Children’s Advocacy Center without invitation or business to

conduct.   III RR 94-96.      Mullins recognized Appellant from casual

encounters at the Methodist Church that they both attended. III RR

                                    12
97.   After offering Appellant a tour of the center and then giving

Appellant a tour of the center, Appellant unexpectedly came up behind

Mullins and began to rub her arm up to her neck and smelled her. III

RR 98. Appellant was interrupted by a CAC volunteer and left. III RR

99.   Appellant returned to the CAC again at a later date; again,

uninvited and without business to conduct. On this occasion Mullins

testified that Appellant made unwanted sexual advances and then

assaulted her. III RR 99-102. Specifically, Appellant conveyed a desire

to have an intimate relationship with Mullins. Mullins declined and

asked Appellant to leave the center. At this point, Appellant extended

his hand across the desk to apologize and shake Mullins’ hand, and she

accepted the hand shake.

      According to Mullins’, when she gave him her hand, he pulled her

across the desk and she was able to stop herself from being pulled by

Appellant. A short struggle ensued and Mullins was tilted back in her

chair by Appellant. Appellant then came around the desk behind the

chair and put his arm around her neck and pulled her back and began

to open mouth kiss and lick her face. III RR 100. Mullins was able to




                                  13
free herself from Appellant and then asked him to leave; which he did

very slowly. III RR 101.

     After the incident, Mullins saw Appellant driving past her house

and the center on several occasions. III RR 101. Eventually, Appellant

approached Mullins to apologize. III RR 101.

     The testimony given by Mullins relays an incident that is very

similar in nature to the actions Appellant took when he assaulted

Walter. He was a casual acquaintance of both women, he showed up to

their residence/business unannounced and uninvited. He made sexual

advances that were rebuked. He then used force to carry out his sexual

advances. After he completed his attack, he left and later apologized.

It was precisely because the incidents fit the same pattern that

Detective King was able to piece the two together, contact Mullins, and

identify Appellant as the person who sexually assaulted Ms Walter.

     Furthermore, throughout his defense, Appellant asserted that the

encounter with Ms. Walter was consensual. Appellant characterized his

relationship with Ms. Walter as a casual acquaintance just as the

relationship between Appellant and Mullins was characterized. IV RR

105. With both Mullins and Walter, Appellant testified that he traveled


                                  14
to their location to see if they were interested in an intimate affair.

Appellant traveled to Walter’s house to “see what the wink was all

about.” IV RR 107. With both women, Appellant made sexual advances

towards the women. Likewise, both women rebuked his advances. And

likewise, Appellant forced himself on the women.         This pattern of

behavior shows Appellants intent and absence of mistake. Both times

his intent was to engage in a sexual encounter. On both occasions, he

was denied consent. On both occasions, he proceeded to assault the

women by force followed by an apology.

     Therefore, the trial court did not err by allowing the 404(b)

testimony of Gene Mullins as it was relevant, is rebutted the defense of

consent, it showed a lack or absence of mistake, and it aided in the

identity of the Appellant as both assaults fit a highly similar pattern or

modis operandi of Appellant.      Finally, the testimony was far more

probative than prejudicial.


ISSUE NUMBER THREE: The trial court acted properly by excluding
the irrelevant and improper testimony of Martha Wetherholt and did
not deny his right to present a defense.




                                    15
     During the trial on the merits, Appellant called Martha

Wetherholt to testify as part of his defense. RRV4 172. After Appellant

elicited some testimony from Mrs. Wetherholt, counsel for the State

objected to her testimony under rules 401, 602, and 412 of the Texas

Rules of Evidence. A hearing was had outside the presence of the jury

to determine the validity of the State’s objections. After the witness

was examined and cross-examined, the State re-urged its objections

under Texas Rules of Evidence 401, 602, and 412 to which objections

the trial court sustained and excluded Mrs. Wetherholt’s testimony.

Appellant offered the testimony in its entirety as his offer of proof.

RRV4 172-194.

     Generally, “[A] trial court's refusal to admit evidence is reviewed

for abuse of discretion, which means an appellate court reviews for

whether the court's ruling was within the zone of reasonable

disagreement.” Alonzo v. State, 67 S.W.3d 346, 350, 2001 Tex. App.

LEXIS 8489, *1 (Tex. App. Waco 2001).       However, in this case, the

Appellant claims constitutional error in that the suppressed testimony

of Martha Wetherholt prevented him from presenting a defense.




                                  16
     Therefore, because the question arises out of the application of a

constitutional right, the basis for review is for constitutional error and

must be reversed for a constitutional error unless it is determined

beyond a reasonable doubt that the error did not contribute to the

conviction. Id. at 361-362 (internal citations omitted from quote).

     The testimony of Martha Wetherholt was offered in its entirety in

Appellant’s bill of exceptions and offer of proof.    IV RR 172.      As is

obvious in the record, Wetherholt had no relevant information that

would aid the trier of fact to determine the ultimate question of the

Appellant’s guilt as charged. Wetherholt testified that she had neither

personal knowledge concerning the allegations against Appellant nor

had she spoken to Appellant or Ms. Walter about the incident. IV RR

187. Her testimony was improper character testimony of Walter and

her behavior well prior to the assault on April 23, 2011. Further, read

in its entirety, Wetherholt could only testify that Ms. Walter had a

boyfriend of two after her divorce and that she stayed out late one night

during a business trip Wetherholt and Walter took together. Although

not direct, this testimony was calculated to introduce testimony

contrary to Tex. R. Evid. § 412.         Furthermore, Wetherholt had no


                                    17
personal knowledge as to the nature of any relationship Walter’s had

nor did she have any information pertaining to Walter’s relationship or

lack thereof with Appellant. Therefore, the testimony was inadmissible

under the Texas Rules of Evidence and wholly irrelevant.

     Finally, Appellant claims that the exclusion of the irrelevant and

improper testimony of Wetherholt violated his constitutional right to

present a defense.     This argument fails. The undersigned can think of

no matter testified to by Wetherholt would have affected the jury in

their deliberations.

     The standard of review is to determine beyond a reasonable doubt

that the exclusion of the testimony did not contribute to the verdict.

See id. Given that the majority if not all of Wetherholt’s testimony

failed to meet evidentiary muster and would have been excluded over

proper objection, it’s difficult to assume a constitutional stance when

deliberating this issue. However, assuming Wetherholt’s testimony was

allowed to be presented to the jury in its entirety, none of it would have

affected the deliberations one way or the other. A plain reading of the

record shows that Wetherholt’s testimony was as unnecessary for the




                                    18
defense of Appellant as it was an improper attempt to back-handedly

assassinate the character of Walter.

ISSUE NUMBER FOUR: The State’s argument to the jury was proper,
did not ask jurors to place themselves in the shoes of the victim, and
was wholly misconstrued by Appellant.


     Throughout the course of the trial on the merits, the defense

strategy was to suggest consent and to attack the victim’s credibility by

suggesting that she failed to react to the sexual assault in a manner

that is consistent with a non-consenting sexual assault victim. See RR

as a whole.    During closing argument, counsel for the State was

attempting to rebut this defense strategy through argument that called

upon the jurors to focus on the victim’s testimony.      During closing

arguments, counsel for the State stated, with objection from the

Appellant, the following:

     “How are you supposed to act when you’re being sexually
     assaulted? I don't know. I've never been sexually assaulted. Think
     in your minds how you’re supposed to act when you're sexually
     assaulted” and “How was she supposed to act? Was she supposed
     to fight him? Maybe.”


5 RR 27-28.

           The purpose of closing argument is to facilitate the
     jury's proper analysis of the evidence presented at trial in

                                   19
     order to arrive at a just and reasonable conclusion based
     solely on the evidence. Proper jury argument generally falls
     within one of four general areas: (1) summation of the
     evidence; (2) reasonable deduction from the evidence; (3)
     answer to argument of opposing counsel; and (4) plea for law
     enforcement. A prosecuting attorney is permitted in his
     argument to draw from the facts in evidence all inferences
     which are reasonable, fair, and legitimate, but he may not
     use the jury argument to get before the jury, either directly
     or indirectly, evidence which is outside the record.
     Comments which appear to cast aspersions on the character
     of defense counsel, and as a result, strike over counsel's
     shoulders at the defendant, are not within the zone of proper
     jury argument. When jury argument falls outside the
     approved areas, it will not constitute reversible error unless
     it is extreme or manifestly improper or injects new facts
     harmful to the accused into the trial proceeding.

Hinojosa v. State, 433 S.W.3d 742, 747, 2014 Tex. App. LEXIS 4884, *1,

2014 WL 1800317 (Tex. App. San Antonio 2014).

     Here, the prosecutor's argument was a summation of the evidence,

establishing an element of the offense, eg. “without the consent of Ms.

Walter.” Based on a plain reading of the record, juxtaposed and

considering the defense strategies, it is reasonable and logical to

conclude that these arguments were made for the purposes of calling on

the jurors to make reasonable deductions from the evidence and to

rebut the defensive theory of consent.

     Further, the State’s argument was a reasonable deduction from


                                   20
the evidence and merely asked the jury to rely on a general lack of

knowledge of the “appropriate” way to react to being sexually assaulted

and was attempting to point out that absent a similar experience, they

could not possibly substitute their assumption of how they would

behave for how Ms. Walter’s behaved. While in hindsight the State

might concede that the argument could have been more precisely

phrased, when viewed in context, it by no means rises to the level of

reversible error.

                        PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellee prays that

Appellant’s request for relief be in all things denied and that mandate

issue affirming the judgment and sentence rendered at trial.

                           Respectfully submitted,


                           _/S// Richard A. Schmidt_________________
                           Richard A. Schmidt
                           S.B.N. 24043907
                           First Assistant Criminal District Attorney
                           Van Zandt County
                           400 S. Buffalo, Canton, TX 75103
                           903.567.4104/903.567.6258 fx




                                   21
                    CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the foregoing document
was delivered upon the Attorney for Appellant on September 3, 2015.

                               _/s// Richard A. Schmidt________
                               Richard A. Schmidt

                 CERTIFICATE OF COMPLIANCE

      I certify that this Brief complies with Tex. R. App. P. 9.4,
specifically using 14 point Century font and contains 4,154 words in
total as counted by Microsoft Word.

                               ____/s// Richard A. Schmidt______
                               Richard A. Schmidt




                                 22
