                                                                             ACCEPTED
                                                                        06-14-00164-CR
                                                              SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                  12/31/2014 4:09:13 PM
                                                                        DEBBIE AUTREY
                                                                                 CLERK

                         Nos. 06-14-00164-CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
                                                 1/8/2015 3:29:00 PM
                             In the                  DEBBIE AUTREY
                                                         Clerk
                     Sixth Court of Appeals
                      at Texarkana, Texas
                   _______________________

                  Christopher Neal McGonigal,
                           Appellant,

                                 v.

                       The State of Texas,
                            Appellee.
                  _______________________________
                       On Appeal from the
               th
              6 District Court of Red River County
                   Hon. Eric Clifford, Presiding
              _______________________________
                      APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL

Defendant Below
Appellant in this Court

Christopher Neal McGonigal

Counsel for Appellant:
     Don Biard                       (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Dan Meehan                     (at trial)
      State Bar No. 13898700
      202 West Madison
      Clarksville, Texas 75426
      Tel: (903)427-4547
      Fax: (903)427-4549

Appellee in this Court

The State of Texas

Counsel for Appellee:
     Hon. Val Varley
     State Bar No. 20496580
     Red River County Attorney’s Office
     400 North Walnut
     Clarksville, Texas 75426
     Tel: (903)427-2009
     Fax: (903)427-5316
                                                           1
                                         TABLE OF CONTENTS

Identity of Parties and Counsel……………………………..........…………………1

Table of Contents……………………………………..........……………………….2

Index of Authorities………………………………………......………………….3-4

Issues Presented……………………………………..............…………..….………5

Summary of the Argument........................................................................................6

Statement of the Case…………………………………….………………………...8

Procedural History…………………………………….…………..……………......9

Facts……………………………………………………………….…………..10-11

Argument and Authorities……………………………………...………….......12-24

Prayer…………………………………………………………………………..….24

Certificate of Service……………………………………......…………………….25

Certificate of Compliance With Rule 9.4(i)(3)........................................................26




                                                                                                               2
                                             INDEX OF AUTHORITIES

                                                         Caselaw

Banks v. State, 158 S.W.3d 649, 651 (Tex. App. – Houston [14th Dist.] 2005), pet.
ref’d.........................................................................................................................22

Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978)............................................18

City of Keller 168 S.W.3d 802, 813 (Tex. 2005).....................................................12

Cortez v. State, 571 S.W.2d 308 (Tex. Crim. App. 1978).......................................22

Franco v. State, 552 S.W.2d 142 (Tex. Crim. App. 1972)......................................15

Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)........18

Hacker v. State, 389 S.W. 3d 860, 864 (Tex. Crim. App. 2013).............................12

Long v. State, 590 S.W.2d 138 (Tex. Crim. App. 1979)....................................18,21

Marathon Corp v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003)................................12

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).....................19

Prince v. State, 503 S.W.2d 777 (Tex. Crim. App. 1974).......................................17

Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975)........................................18

Willis v. State, 2 S.W. 3d 397 (Tex. App. – Austin 1999), no pet......................16,17




                                                                                                                               3
                                              Rules of Evidence

Tex. R. Evid. 410.....................................................................................................15

Tex. R. Evid. 801.....................................................................................................20

Tex. R. Evid. 802.....................................................................................................20

Tex. R. Evid. 803................................................................................................17,20

Tex. R. Evid. 902.....................................................................................................21

                                             Rules of Procedure

Tex. R. Crim. Pro. 27.02..........................................................................................13

                                             Secondary Sources

George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, §40.86..16




                                                                                                                      4
                              ISSUES PRESENTED

I. Whether the evidence is insufficient to support the trial court’s judgment
revoking Appellant’s deferred adjudication community supervision and
adjudicating Appellant guilty of the underlying offense?

II. Whether the trial court erred in admitting hearsay evidence?




                                                                                5
                          SUMMARY OF THE ARGUMENT

The state filed a motion to revoke Appellant’s deferred adjudication community

supervision. The only allegation contained in the state’s motion was that Appellant

had committed the offense of Driving While Under the Influence of Drugs or

Alcohol in Montgomery County, Kansas on or about May 9, 2014. The state

presented two pieces of evidence to meet its burden of proof on this allegation.

      First, the state offered a “Defendant’s Acknowledgment of Rights and Entry

of Plea” from a Kansas court signed by Appellant. This document did not specify

what type of plea Appellant was entering, what offenses he may have been

pleading to, when those offenses may have occurred, or where those offenses may

have occurred.

      Next, the state offered an Inmate Booking Sheet from the Montgomery

County, Kansas Sheriff’s Office. This document showed only Appellant’s

physical description, arrest date, and the offense with which he was charged. It

contained no other information about the offense.

      These two pieces of evidence are insufficient to prove by a preponderance of

the evidence that Appellant committed the offense alleged in the motion to revoke.

      Further, the Inmate Booking Sheet was inadmissible hearsay evidence. Not

only is it hearsay, but this document contains observations of law enforcement




                                                                                   6
personnel and is not authenticated. The trial court erred by admitting it over

defense objection.




                                                                                 7
                           STATEMENT OF THE CASE

Nature of the Case:          Motion to Revoke Deferred Adjudication
                             Community Supervision and Adjudicate Guilt on
                             one charge of Indecency with a Child.

Trial Court:                 The Honorable Eric Clifford
                             6th District Court, Red River County, Texas

Trial Court Disposition:     The trial court revoked Appellant’s community
                             supervision, adjudicated Appellant guilty on the
                             charge of Indecency with a Child, and sentenced
                             Appellant to 20 years’ imprisonment.




                                                                                8
                                                            1
                                 PROCEDURAL HISTORY


On February 19, 2013, Appellant, Christopher Neal McGonigal, was placed on

deferred adjudication community supervision for one charge of indecency with a

child.2 On June 2, 2014, the state filed a motion to adjudicate guilt.3

       A hearing was held on the motion on August 28, 2014.4 The trial court

adjudicated McGonigal guilty of the charge of indecency with a child and

sentenced McGonigal to serve a 20 year term.5 McGonigal timely filed notice of

appeal.6




1
  All references to the record on appeal are made in the following manner: CR pg.# and RR,
pg.#. CR designates the Clerk’s Record and RR designates the Reporter’s Record, followed by
the particular page in that record. RR Ex.# designates a particular exhibit in the Reporter’s
Record.
2
  CR pg. 65
3
  CR pg. 109
4
  RR pg. 1
5
  CR pg. 131
6
  CR pg. 123
                                                                                                9
                              FACTUAL BACKGROUND

       The sole basis of the state’s motion to adjudicate guilt was an allegation that

McGonigal had committed the offense of Driving Under the Influence of Alcohol

or Drugs in Montgomery County, Kansas on or about May 9, 2014.7

       During the adjudication hearing, the state called two witnesses. The first

witness, Miranda Dean, was McGonigal’s probation officer in Red River County.8

Ms. Dean was called for the primary purpose of introducing a document into

evidence.9 This document was titled “Defendant’s Acknowledgment of Rights and

Entry of Plea” and stemmed from a criminal case in the Fourteenth Judicial District

of Kansas.10 Ms. Dean seemed unsure of what the document was and had no

personal knowledge about the case.11

       The state next called Alex Davidson, an investigator with the Red River

County District Attorney’s Office. Mr. Davidson was called for the primary

purpose of introducing another document into evidence. This document was titled

“Montgomery County SO Inmate Booking Sheet” and contained McGonigal’s

physical description, photograph, and arrest information.12



7
  RR pg. 5; CR pg. 109
8
  RR pg. 6
9
  RR pg. 7
10
   RR, Ex. #1
11
   RR pgs. 7, 9
12
   RR, Ex. #2
                                                                                    10
         Mr. Davidson testified that the Montgomery County, Kansas Sheriff’s Office

had faxed him this document at his request.13 This document states that

McGonigal was arrested on May 9, 2014 and had the charge of “Driving under

influence of alcohol or drugs.”14




13
     RR pg. 13
14
     RR, Ex. #2
                                                                                 11
                         ARGUMENT AND AUTHORITIES


Issue No. 1 Restated: The evidence is insufficient to show that Appellant
committed the offense of Driving While Under the Influence of Alcohol or
Drugs in Montgomery County, Kansas on or about May 9, 2014.

                                   Standard of Review

To revoke probation (whether it be regular probation or deferred adjudication), the

State need prove the violation of a condition of probation by a preponderance of

the evidence. In the probation-revocation context, "a preponderance of the

evidence" means "that greater weight of the credible evidence which would create

a reasonable belief that the defendant has violated a condition of his probation."

Although a lower standard than "beyond a reasonable doubt," the preponderance of

the evidence standard is a much higher standard than the search-and-seizure

standards of "probable cause" and "reasonable suspicion."15

       Evidence does not meet this standard when the evidence offered to prove a

vital fact is so weak as to do no more than create a mere surmise or suspicion of its

existence or when the finder of fact must guess whether a vital fact

exists.16 “Some suspicion linked to other suspicion produces only more suspicion,

which is not the same as some evidence."17

a. The Plea Document Contains No Evidence of McGonigal’s Guilt

15
   Hacker v. State, 389 S.W. 3d 860, 864 (Tex. Crim. App. 2013).
16
   Id., citing City of Keller 168 S.W.3d 802, 813 (Tex. 2005).
17
   Marathon Corp v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).
                                                                                     12
       The state presented only two pieces of evidence during the hearing. The

first was the “Defendant’s Acknowledgment of Rights and Entry of Plea”.18 This

document fails to show that McGonigal committed the alleged offense for several

reasons.

       First, it does not show what plea McGonigal entered in the case. This

document appears to be a standard form used in plea cases in Kansas, similar to the

form often used in Texas.19 Throughout the document it advises defendants of the

effects of a plea of guilty and a plea of no contest. However, the document does

not identify which type of plea McGonigal intended to enter. The document

consistently speaks of both a plea of guilty and a plea of no contest.

       Given the language of the document, it is certainly possible McGonigal

intended to enter a plea of no contest to one or more of the charges rather than a

plea of guilty. No judicial notice of the effect of a plea of no contest in Kansas was

taken during the hearing. However, in Texas, a plea of no contest is not an

admission of guilt.20 It is also important to note that this Kansas document does

not contain any sort of judicial confession like its Texas counterpart.21

       Second, this exhibit does not show to what crimes McGonigal intended to

plead no contest or guilty to. Although paragraph six lists, “DUI, 1 st” and “Driving

18
   RR, Ex. #1
19
   See CR pg. 45
20
   Tex. R. Crim. Pro. 27.02(5)
21
   CR pg. 52
                                                                                     13
Left of Center” it is not clear that McGonigal intended to plead guilty to either or

both of these offenses. The plea agreement was apparently attached to the original

document in Kansas (para. 5 of the exhibit), but was not attached when this

document was entered into evidence in Red River County.

       It is not uncommon for a defendant to be charged with two offenses and to

reach a plea bargain in which the more serious offense is dismissed in exchange for

a plea to the minor offense or to plead to a lesser included offense. Again, Exhibit

#1 does not identify how McGonigal intended to plead.

       Third, this exhibit does not show any proof that McGonigal actually plead to

Driving Under the Influence or that his plea was accepted. This document is only

an advisement of the defendant’s rights. It is not, on its face, a plea itself. The

document is not signed or certified by a judge or magistrate.22

       The state did not introduce any other evidence from the Kansas case, such as

a written judgment of conviction or a certified reporter’s record, to show how or if

McGonigal plead to the offenses. Nor did the state offer any evidence as to what

offense or offenses McGonigal was convicted of in the Kansas court.

       Even if we assume, for the sake of argument, that McGonigal intended to

plead guilty and admit to committing the offense alleged in the state’s motion to


22
  Page 3 of the document contains a signature block for “JUDGE/Notary Public”. However, it is
clear this is intended only to acknowledge the signatures of the defendant and his counsel. It also
does not indicate whether this particular document was signed by a judge or a notary.
                                                                                                14
revoke, this would not be sufficient to revoke his community supervision. In

Franco v. State, the defendant had been placed on community supervision and the

state sought to revoke his community supervision. As part of plea negotiations

Franco signed a “Stipulation of Evidence” stipulating to the facts alleged in the

state’s motion to revoke. During the hearing, however, Franco changed his mind

and plead “not true” and objected to the admission of the Stipulation of Evidence.

The trial court considered the stipulation over defense objection and revoked

Franco’s community supervision.23

       The Court of Criminal Appeals reversed the trial court’s judgment. The

court held that because Franco plead “not true”, the stipulation of evidence should

not have been admitted into evidence.24

       Here, the evidence is even less compelling. We have an advisement of

rights which, at best, indicates that McGonigal intended to plead guilty or no

contest to one or more offenses. However, there is no record that McGonigal

actually plead to the offenses.25

b. The Inmate Booking Sheet Contains No Evidence of McGonigal’s Guilt

       The second exhibit introduced by the state is a booking sheet from the

Montgomery County Sheriff’s Office. It gives McGonigal’s general physical

23
   Franco v. State, 552 S.W.2d 142 (Tex. Crim. App. 1972).
24
   Franco at 144
25
   See also Tex. R. Evid. 410 (a plea of guilty or no contest that was later withdrawn is not
admissible against the defendant who made the plea or was a participant in the plea discussions)
                                                                                               15
description and states that he was arrested on May 9, 2014 and charged with “B-

1567 Driving under influence of alcohol or drugs; Misdemeanor: STAT”.

Although the document states the arrest date was May 9, 2014, it does not specify

that this was the same date that the alleged offense occurred. The state presented

no evidence from the arresting officer in Kansas nor any testimony from any other

person with knowledge of the details of alleged offense.

c. Taken together these documents do not meet the state’s burden

          There are three ways in which the State may seek to prove the defendant

engaged in criminal conduct during the community supervision period – (1) direct

proof in the revocation hearing; (2) using a judgment of conviction; (3) using

evidence from a criminal trial.26

          Here, the state offered no direct proof – such as the testimony of the

arresting officer. The state offered no judgment of conviction. And, the only

evidence from a criminal trial offered was an advisement to McGonigal of his

rights.

          In Willis v. State, the defendant had been placed on community supervision

in Caldwell County for the offense of theft. The state sought to revoke his

community supervision. The state alleged that Willis had again committed theft

while on community supervision. The primary evidence introduced by the state to

26
 Willis v. State, 2 S.W. 3d 397 (Tex. App. – Austin 1999), citing George E. Dix &Robert O.
Dawson, Criminal Practice and Procedure, §40.86
                                                                                             16
prove this allegation was a judgment from a Brazos County court revoking Willis’s

community supervision in a separate case. The written judgment from the Brazos

County court recited that the court had found that Willis had committed the exact

same offense as alleged in the state’s motion to revoke in Caldwell County. 27

       The Austin Court of Appeals reversed the judgment of the Caldwell County

court revoking Willis’s community supervision. It found that the revocation order

was, “[S]upported by no evidence other than the recitations in a revocation order

entered by another judge, in another county, in another case, and where the

defendant was represented by different counsel.”28

       In our case, we do not even have a written order from the Kansas court

finding that McGonigal committed any offense. Not only was he in another state,

another case, and represented by different counsel, there is not even a cursory

recitation that McGonigal committed the offense alleged in the motion to revoke.

       Even if we had a judgment of conviction, the evidence would still be

insufficient. As shown in Defendant’s Exhibit #1, McGonigal appealed his

sentence (for an unspecified offense). It has long been the law that if a conviction

is on appeal at the time of the revocation, it may not be used as the basis for

revocation.29


27
   Willis at 399
28
   Willis at 400
29
   Prince v. State, 503 S.W.2d 777 (Tex. Crim. App. 1974); see also Tex. R. Evid. 803(22)
                                                                                            17
d. Conclusion

       Though not the same as a criminal trial, a proceeding to revoke probation

portends a possible deprivation of liberty, and as such, the application of

appropriate due process of law is constitutionally required.30 The fundamental

tenant of our system of justice is that merely being arrested and charged with an

offense is not evidence of the commission of that offense.

       The evidence presented during McGonigal’s revocation hearing shows, at

best, that he was arrested and charged with Driving Under the Influence. It does

not show that he plead guilty to that offense or that a court found him guilty of that

offense. The Court of Criminal Appeals has repeatedly cautioned against relying

solely upon evidence of a conviction to prove a violation of community

supervision conditions.31 Here, we do not even have evidence of a conviction, only

evidence of an arrest and charge.

       Evidence showing only that a probationer has been arrested and charged

with an offense is insufficient to show that he has committed that offense. Holding

otherwise would offend traditional notions of justice and deny McGonigal of his

constitutional right to due process.




30
   Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Bradley v. State,
564 S.W.2d 727 (Tex.Cr.App.1978); Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975).
31
   Long v. State, 590 S.W.2d 138, 139 (Tex. Crim. App. 1979)
                                                                                               18
Issue No. 2 Restated: The trial court erred when it admitted state’s Exhibit #2
over defense objection because the exhibit is inadmissible hearsay evidence.


                                     Standard of Review

A trial court’s ruling concerning the admissibility of evidence is reviewed under an

abuse of discretion standard.32 Under that standard, the trial court’s ruling must

have been within the zone of reasonable disagreement.33

a. Error Was Preserved

       The state called its investigator, Alex Davidson, for the purpose of

introducing the Montogmery County Sheriff’s Office inmate booking sheet. When

the state offered this exhibit into evidence during Mr. Davidson’s testimony the

defense objected on the basis of hearsay, lack of proper foundation, and

relevancy.34 The exhibit was admitted over the defense objections.35

b. The document is inadmissible hearsay

       Mr. Davidson testified that he had contacted the Montgomery County

Sheriff’s Office and asked them for any book-in records they had for McGonigal.

The sheriff’s office faxed him the document admitted as Exhibit #2.36

       This document is a written statement made by a person not testifying in

court and admitted for the purpose of proving that McGonigal had committed the
32
   Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991)
33
   Id.
34
   RR pg. 14
35
   RR pg. 14
36
   RR pgs. 13-14
                                                                                     19
offense of Driving Under the Influence of Drugs or Alcohol. Accordingly, it is

hearsay.37

       i. It is excluded under Tex. R. Evid. 803(6)

       The only possible exception to the hearsay rule which this document might

fall under is the exception for public records and reports.38 However, this

document fails under this exception for several reasons.

       First, in criminal cases, matters observed by law enforcement personnel are

not admissible under this exception.39 The notation of “Driving under the

influence of alcohol or drugs” could have only come from a police officer’s

observation.

       ii. It was not authenticated by a witness

       Second, no foundation was laid regarding whether this report contained

“matters observed pursuant to duty imposed by law as to which matters there was a

duty to report”.40 No one from the Montgomery County, Kansas Sheriff’s Office

was called to testify regarding how these booking sheets are compiled and whether

they have a duty under Kansas law to report the information contained in them.

Nor did the trial court take judicial notice of any Kansas law imposing such a duty.




37
   Tex. R. Evid. 801, 802
38
   Tex. R. Evid. 803(8)
39
   Tex. R. Evid. 803(6)(B)
40
   Id.
                                                                                   20
       iii. It was not authenticated by seal or certification

       Third, the document was not a self-authenticating document. There is no

seal, signature, or other certification which might make this document a self-

authenticated public record.41

       The Court of Criminal Appeals has held that booking sheets are inadmissible

hearsay unless properly authenticated.42 In Long v. State, the defendant was placed

on probation for aggravated assault. The state later sought to revoke his probation

based on an allegation that he had committed theft. One of the pieces of evidence

presented at his revocation hearing was a Sheriff’s Office booking sheet. Long

objected to its admission on the basis of hearsay. The booking sheet was admitted

over Long’s objection.43

       The Court of Criminal appeals held that the trial court erred in admitting the

booking sheet. The court said, “The booking sheet contained no certification that it

was a true and correct copy, it bore no signature, and [the witness] testified that he

did not have anything to do with the preparation of that document, nor was he

present when it was prepared.44

       The exact same facts are present in our case. The Montgomery County

booking sheet, contained no certification that it was a true and correct copy, it bore

41
   Tex. R. Evid. 902; see also RR Ex. #1
42
   Long v. State, 590 S.W.2d 138
43
   Long at 139-140
44
   Long at 140
                                                                                     21
no signature, and the witness testified that he had only received it by fax from the

Sheriff’s office and knew no other information about the case.

       Even documentary evidence of an out-of-state conviction must be

authenticated before it may be admitted. In Banks v. State, the prosecution offered

a “pen packet” from Illinois as proof of the defendant’s prior conviction.45 The

packet contained a court order, a fingerprint card, and a report. However, the

packet was not certified nor did it bear any kind of seal.46 The court held that the

pen packet was inadmissible hearsay because it had not been properly

authenticated and reversed the judgment of the trial court.47 In our case, the

booking sheet was also not authenticated and, therefore, should not have been

admitted.

c. Admission of the Document Resulted in Harm to Appellant

       The Inmate Booking Sheet was the only evidence introduced in the hearing

tending to show that McGonigal had “committed the offense of Driving under

Influence of Alcohol or Drugs on or about May 9, 2014 in Montgomery County,

KS”. Exhibit #1 shows only that McGonigal intended to enter some kind of plea to

“DUI; 1st” and “Driving Left of Center”. It does not state when those alleged

offenses occurred. Although the styling of that document indicates it was filed in

45
   Banks v. State, 158 S.W.3d 649, 651 (Tex. App. – Houston [14th Dist.] 2005), pet. ref’d; see
also Cortez v. State, 571 S.W.2d 308 (Tex. Crim. App. 1978).
46
   Id. at 653
47
   Id. at 652
                                                                                                  22
the “District Court of Montgomery & Chautaugqua Counties”, it does not state

where the alleged offense occurred. Further, that document does not state that

McGonigal was suspected of the offense of “Driving Under the Influence of Drugs

or Alcohol” but simply states, “I understand from discussion with my attorney that

I am pleading to the following crimes which have the following range of penalties:

“DUI, 1st”.

       The Red River County probation officer, Miranda Dean, testified that she

had no personal knowledge of the alleged offense.48 She even testified that she

was not familiar with Exhibit #1, which she was being asked to indentify.49

       The District Attorney’s own investigator, Alex Davidson, testified that he

had no knowledge concerning the alleged offense other than the booking sheet.50

d. Conclusion

       Exhibit #2 is inadmissible hearsay. The trial court erred when it admitted

the document over defense objection. This error harmed McGonigal because this

exhibit is the only scintilla of evidence which might show that McGonigal

committed the offense alleged in the state’s motion to adjudicate guilt.




48
   RR pg. 9
49
   RR pg. 7
50
   RR pg. 15
                                                                                    23
                                   CONCLUSION

The evidence is insufficient to support the trial court’s judgment revoking

Appellant’s deferred adjudication community supervision. The state failed to meet

its burden of proof to show that Appellant had committed the offense of Driving

While Under the Influence of Drugs or Alcohol in Montgomery County, Kansas on

May 9, 2014. Further, the trial court erred when it admitted hearsay evidence of

Appellant’s arrest in Kansas. This error resulted in substantial harm to Appellant

because it contained the only evidence that Appellant may have committed the

offense alleged in the state’s motion to revoke.

                                      PRAYER


Appellant requests this court to reverse the judgment rendered below and reinstate

Appellant’s deferred adjudication community supervision



                                              Respectfully Submitted,


                                              /s/ Don Biard_________________
                                              Don Biard
                                              State Bar No. 24047755
                                              McLaughlin, Hutchison & Biard, LLP
                                              38 First Northwest
                                              Paris, Texas 75460
                                              Tel: (903)785-1606
                                              Fax: (903)785-7580
                                              Counsel for Appellant

                                                                                     24
                        CERTIFICATE OF SERVICE

I certify that on December 31, 2014 a copy of the foregoing Appellant’s Brief was
served to the following parties by the method indicated below.



                                                  /s/ Don Biard            //
                                                  Don Biard


Via Email and Regular Mail
Hon. Val Varley
Red River County District Attorney’s Office
400 N. Walnut
Clarksville, Texas 75426
Tel: (903)427-2009
Fax: (903)427-5316




                                                                                25
  CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF
                 APPELLATE PROCEDURE 9.4(i)(3)
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 4,155 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                /s/ Don Biard                 //
                                Don Biard
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Attorney for Appellant




                                                                                  26
