                                                                                     PD-0082-14
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 5/28/2015 11:27:22 AM
                                                                    Accepted 5/28/2015 1:12:05 PM
    May 28, 2015                                                                    ABEL ACOSTA
                                                                                            CLERK
                                       NO. PD-0082-14


                       IN THE COURT OF CRIMINAL APPEALS

                                      AUSTIN, TEXAS

ADELFO RAMIREZ CRUZ                            §                   PETITIONER

VS.                                            §

THE STATE OF TEXAS                             §                 RESPONDENT

                          STATE’S MOTION FOR REHEARING



TO THE HONORABLE COURT OF CRIMINAL APPEALS:


         Comes now the State of Texas, by and through the District Attorney for

Travis County, and asks this Court, pursuant to Rule 79.1 of the Texas Rules of

Appellate Procedure, to rehear and reconsider its decision in this case. The State

respectfully asserts in this motion that the Court’s analysis, in fact, supports a

finding that the biographical questions asked of Petitioner by Austin Police

Department Detectives are not rightly characterized as interrogation for purposes

of Miranda.1




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               1
                         PROCEDURAL BACKGROUND
Proceedings in the Trial Court:

       Petitioner was indicted by a Travis County Grand Jury for the offense of

murder alleged to have been committed on or about the 13th Day of December,

2009.2 CR 4. Trial on this cause has not yet taken place. On November 20, 2011,

Petitioner filed a motion to suppress evidence including any tangible evidence

seized in connection with the case. CR 16-20. The motion further requested

suppression of any statements made by Petitioner to, and any samples taken of

Petitioner’s person by, the Austin Police Department and “police from Chicago.”

CR 16-20. After several pre-trial hearings, the trial court issued an order on

October 22, 2012 outlining findings of fact and conclusions of law which

effectively granted Petitioner’s motion to suppress with respect to any statements

made by Petitioner during the interview conducted by the Austin Police

Department in the Berwyn, Illinois Jail on January 6, 2010. Petitioner’s Motion to

Suppress was, in all other respects, denied. Cr 34-43.

Direct Appeal:

       The State filed notice of appeal and, on January 10, 2014, the Third Court of

Appeals reversed the order of the trial court suppressing statements made by

Petitioner during the interview conducted by the Austin Police Department in the

2
 The indictment for Cause No. D1DC 09-302890 is styled: The State of Texas v. Adelfo
Ramirez Cruz; Aliases: Jose Rodriguez, Jorge Negron, Pablo Jaimes.
                                             2
Berwyn, Illinois Jail on January 6, 2010. See State v. Cruz, 03-12-00728-CR, 2014

Tex. App. LEXIS 296, 2014 WL 108353 (Tex. App. Austin, January 10, 2014)

(not designated for publication).

Discretionary Review:

      Petitioner timely filed a petition for discretionary review, which was granted

on May 14, 2014. On May 13, 2015, this Court reversed the judgment of the 3rd

Court of Appeals and affirmed the suppression order issued by the trial court. State

v. Cruz, 2015 Tex. Crim. App. LEXIS 561 (Tex. Crim. App. May 13, 2015). The

instant Motion for Rehearing follows.


                               RELEVANT FACTS
      On December 13, 2009, Mario Carbajal Mata was shot multiple times and

killed at a taco stand he and his wife operated at 5433 South Congress Avenue in

Austin, Texas. 3 RR 13-15. The Homicide Unit of the Austin Police Department

(hereinafter referred to as “APD”) began their investigation into the murder

immediately after the shooting. 3 RR 12-13. During an interview with Irma Lopez-

Benitez, the victim’s wife and an eyewitness to the murder, APD learned that, in

the moments before the murder, Irma had taken an order from, and served a

Jarritos orange soda bottle to, a Hispanic male. 3 RR 13-14. Irma told police that

after handing the bottle to the Hispanic male, she turned around and began

preparing the Hispanic male’s order. Irma stated that as she began cooking, the

                                         3
victim, who had been seated inside the taco stand, stood up and walked toward her

into view of the ordering window. 3 RR 14-15. Irma stated that it was at that time

that she heard multiple gunshots and saw that her husband had been fatally

wounded. 3 RR 15.

      While processing the crime scene immediately after the murder, APD crime

scene personnel observed and collected what appeared to be a freshly opened

Jarritos bottle still partially filled with orange soda sitting on the table nearest to

the taco stand. 3 RR 14. When it was later processed for fingerprints, at least one

latent print was successfully lifted from the bottle. 3 RR 15. That print was then

matched to a print stored in AFIS, a nationwide fingerprint database. 3 RR 16. The

stored print was identified, in the AFIS database, as belonging to an individual by

the name of Jose Rodriguez with an FBI number of 76415AB. 3 RR 16. This name

and the corresponding FBI number were then run through the database maintained

by the National Crime Information Center (hereinafter referred to as NCIC), which

revealed that this individual had been arrested and booked for a number of offenses

committed in the Chicago, Illinois area. 3 RR 16-17. NCIC records also revealed

that this individual had used a different alias at the time of each arrest. State’s Ex.

6. Fingerprints collected at the time of those arrests were compared and were found

to match one another as well as the print collected from the Jarritos bottle at the




                                          4
crime scene. 3 RR 18-19. Booking photos taken at the time of each arrest were of

the same individual. State’s Ex. 7, 8, 9, 10.

      APD issued a warrant for the arrest of Jose Rodriguez for the murder of

Mario Carbajal Mata on December 18, 2009. 3 RR 21. At the same time, they

discovered that Rodriguez had an outstanding arrest warrant out of Chicago for the

offense of driving under the influence. 3 RR 20. APD then enlisted the help of the

United States Marshal’s Office Fugitive Task Force in the Chicago area to help

find and arrest the suspect on both warrants. 3 RR 22-23. Petitioner was arrested in

the Chicago area and brought into the Berwyn Police Department on January 6,

2010. 3 RR 26-27. Berwyn Booking Officer Thomas Zitko was given the task of

booking Petitioner into the jail upon his initial arrival at the Berwyn Police

Department. State’s Ex. 16, 17 at pg. 9. Pursuant to the Berwyn Police

Department’s routine practice and procedure, Zitko inventoried all of Petitioner’s

personal property and asked Petitioner a number of questions of a biographical

nature including his name, address and cell phone number. State’s Ex. 16, 17 at

pgs. 16-19, 23. Answers to questions posed by the Berwyn Police Department at

the time of booking are routinely memorialized by hand on an inventory/booking

document maintained by the Berwyn Police Department expressly for that purpose.

State’s Ex. 16, 17 at pg. 20 and 30-31, State’s Ex. 18. Upon arrival at the Berwyn

Police Department, Petitioner identified himself to Officer Zitko as Jorge Negron,

                                           5
provided Zitko with an address on Pershing in the City of Chicago but did not

provide Zitko with a cell phone number. State’s Ex. 16, 17 at pg. 24. The cell

phone number (773) 940-8738 appears on the inventory document but there is no

information in the record with regard to who later acquired this information from

Petitioner nor is there any information in the record regarding when the cell phone

number was added to the document. State’s Ex. 16, 17 at pg. 26, State’s Ex. 18.

      As soon as the U.S. Marshal’s Office placed Petitioner into custody, APD

was notified of his capture. 3 RR 24. APD Detectives Jeff Greenwalt and Frank

Rodriguez arrived at the Berwyn Police Department thirteen or fourteen hours after

Petitioner’s arrest. 3 RR 26-28. Greenwalt and Rodriguez met and interviewed

Petitioner at that time. 3 RR 28-29. That interview was conducted in Spanish

recorded in its entirety. 3 RR 29, State’s Ex. 1 and 2. The following is that portion

of the January 6, 2010 interview that was at issue during the Motion to Suppress

and that the trial court ultimately suppressed:

      Officer Rodriguez:         Hey what’s up man?
      Petitioner:                Here.
      Officer Rodriguez:         How are you?
      Petitioner:                Fine.
      Officer Rodriguez:         You hungry?
      Petitioner:                Yes hungry.
      Officer Rodriguez:         I’m Frank Rodriguez and this is Jeff
                                 Greenwalt.
      Petitioner:                Oh, ok, my pleasure.
      Officer Rodriguez:         You just back from the hospital?
      Petitioner:                Oh, yes. I felt really bad, my heart closed up
                                 really bad.
                                          6
Officer Rodriguez:     Yeah.
Petitioner:            and here.
Officer Rodriguez:     You feel better? Were you given medicine?
                       Or-
Petitioner:            Yes, I got something for the (unintelligible)
                       and a shot.
Officer Rodriguez:     You, uh, you speak English?
Petitioner:            No.
Officer Rodriguez:     Nothing? Ok, he speaks Spanish also.
Officer Greenwalt:     I can speak but it’s really hard sometimes to
                       understand all of the-
Petitioner:            Oh.
Officer Rodriguez:     Hey, as I said I am Frank Rodriguez and he
is Jeff Greenwalt.     We need-keep eating-
Petitioner:            Ok.
Officer Rodriguez:     Go ahead and eat, uh, need little bits [sic] of
                       information from you, the name, uh, things
                       like that because Immigration wants to put a,
                       a, a, uh, a hold against you but the troubles
                       [sic] is that they have, it’s that there are
                       several name for you.
Petitioner:            How many names?
Detective Rodriguez:   Two or three, I don’t know, so, uh, if you
                       would please tell me what your name is.
Petitioner:            Jorge Negron.
Detective Rodriguez:   Jorge?
Petitioner:            Negron
Detective Rodriguez:   Negron?
Petitioner:            Uh huh
Detective Rodriguez:   And do you have identification?
Petitioner:            Yes. It’s just that I have a-yes.
Detective Rodriguez:   Ok-your birth?
Petitioner:            02/14/75
Detective Rodriguez:   7-5?
Petitioner:            Uh huh.
Detective Rodriguez:   And the address where you live?
Petitioner:            It’s that I don’t- That, I almost don’t, like for
                       example since I don’t use it, I don’t even
                       know, not even the telephone number that
                       we have, not even that.
                                7
Detective Rodriguez:     What? What is the street where you live?
Petitioner:              It’s on Pershing.
Detective Rodriguez:     What?
Petitioner:              Pershing.
Detective Rodriguez:     Per-pershing?
Petitioner:              Uh huh.
Detective Rodriguez:     But you don’t know the number?
Petitioner:              No, I don’t know the number.
Detective Rodriguez:     Is it an apartment or a house?
Petitioner:              house.
Detective Rodriguez:     And the telephone?
Petitioner:              The telephone. It’s that I don’t know it. I
                         mean, I don’t remember real well. Seems
                         like it’s, uh, 7-7-3, that I know, the area
                         code is 7-7-3. It’s from Chicago.
Detective Rodriguez:     Uh huh.
Petitioner:              And the number is, uh, I think 6-90.
Detective Rodriguez:     6-90?
Petitioner:              Uh huh.
Detective Rodriguez:     Uh huh?
Petitioner:              87-38, seems that’s it. It’s that I, I don’t
                         haven’t called it.
Detective Rodriguez:     And do you have a cell?
Petitioner:              That one. It’s-
Detective Rodriguez:     That’s the cell number?
Petitioner:              Uh huh. My wife’s.
Detective Rodriguez:     Oh, your wife’s-so then you’re married?
Petitioner:              Just living with her.
Detective Rodriguez:     Oh and what’s her name?
Petitioner:              Henriqueta.
Detective Rodriguez:      What?
Petitioner:              Henriqueta.
Detective Rodriguez:     Henriqueta?
Petitioner:              Uh huh.
Detective Rodriguez:     Negron?
Petitioner: Well yeah.   Well, we’re not married yet so it’s Cardozo.
Detective Rodriguez:     Oh, Cardozo. Henriqueta Cardozo.
Petitioner:              Uh huh.



                                 8
Detective Rodriguez:   Um, Immigration wants to put a, a, when
                       you’re detained here, to uh, because they’re
                       going to want to kick you out.
Petitioner:            Yes.
Detective Rodriguez:   So, we were asked to come and talk and to,
                       to lets you know-
Petitioner:            Who (unintelligible)?
Detective Rodriguez:   Immigration.
Petitioner:            Oh.
Detective Greenwalt:   INS. Uh, what part of Mexico are you from?
Petitioner:            From Guanajuato.
Detective Rodriguez:   Guanajuato.
Petitioner:            Well, I was born there but I came here from
                       the State of Mexico.
Detective Rodriguez:   From the State of Mexico. And you were-
                       how long have you been in the U.S.?
Petitioner:            Here, I’ve been here since, since-well it’s
                       that I came-in 2000 I came over here.
Detective Rodriguez:   In 2000?
Petitioner:            Yes.
Detective Rodriguez:   To here?
Petitioner:            Yes. Uh huh.
Detective Rodriguez:   Here to the U.S. or to-?
Petitioner:            Yes, to America.
Detective Rodriguez:   But, to Chicago or to, to-?
Petitioner:            Yes, here to America. I’ve always been here
                       or in the Chicago area.
Detective Rodriguez:   So then you moved here in 2000?
Petitioner:            Uh huh, uh, no. I mean I arrived here in, in
                       2000 but from there, uh, uh, I was supposed
                       to, I don’t know what I was stopped
                       supposedly for a DUI.
Detective Rodriguez:   Yes.
Petitioner:            I, I, I mean I have not been told really well
                       why, since I don’t understand them.
Detective Rodriguez:   Yes.
Petitioner:            But I’m told it’s a DWI.
Detective Rodriguez:   Uh, you had one in the past.
Petitioner:            From, yes, I don’t, I don’t deny that. I, I did
                       have one, but I never got the chance to, I
                                9
                          mean to know, and then since, since I have
                          to, uh, I got a call from Mexico that I have
                          to go and I, I had to go-and then I recently
                          came back again, to here- and
                          (unintelligible).
Detective Rodriguez:      When did you leave?
Petitioner:               I, I don’t remember so well but it was when
                          I got the DUI. I mean that, I really got some,
                          yes they did get me but I didn’t have a
                          wreck. I didn’t hit anyone. I, no one, I just,
                          the police just stopped me and said I was
                          drunk, and I wasn’t, I mean police said I had
                          drunk and yes I had drunk about three
                          because I had gone to fix my car-
Detective Rodriguez:      No. I don’t want to talk about you about
                          what you owe because you have rights and I
                          don’t want to violate your rights nor get into
                          trouble either-until, if I am going to talk to
                          you about those kinds of things, I need to
                          read you your rights.

Detective Rodriguez (in English) to Detective Greenwalt: Do you
need anything else before I go through the-?

Detective Greenwalt (in English) to Detective Rodriguez: I don’t
think so, I want to make sure that I understand him correctly. He said
that’s his wife and that that is her cell phone; that he does not have a
cell phone; that he’s from Guanajuato; and, he’s been in Chicago
since 2004-

Detective Rodriguez (in English): And he went back-

Detective Rodriguez:      You left to Mexico?
Petitioner:               Uh huh.
Detective Rodriguez:      When was it that you went back to Mexico?
                          For a moment, at, at what year did you
                          leave?
Petitioner:               I think 2004.

Detective Rodriguez (in English) to Detective Greenwalt: In 2004.
                                  10
      Detective Greenwalt (in English) to Detective Rodriguez: Where did
      he go back to?

      Detective Rodriguez:     Where did you go?
      Petitioner:              To Mexico.
      Detective Rodriguez:     To-To here, to there? And you came back?
      Petitioner:              Didn’t come back until-until ’98.
      Detective Rodriguez:     Excuse me? 2008?
      Petitioner:              Uh huh. Sorry. 2008.

      Detective Rodriguez (in English) to Detective Greenwalt: He just
      came back in 2008.

      Detective Rodriguez:     Here?
      Petitioner               Uh huh.
      Detective Rodriguez:     The uh-regarding your charges, I cannot talk
                               to you about that until I, I read you your
                               rights.


      At this point in the interview Petitioner was mirandized and immediately

invoked his right to counsel. State’s Ex. 1 & 2, 3 RR 32. Detectives Greenwalt and

Rodriguez terminated the interview and went to Petitioner’s home on Pershing

where they met with Petitioner’s wife, Henriqueta Cardozo. 3 RR 33. Cardozo

consented to a search of the home, which uncovered a birth certificate revealing

Petitioner’s true identity as Adelfo Ramirez Cruz with a date of birth of July 19,

1976. 3 RR 33-34, State’s Ex. 11. During the search of Petitioner’s home, Cardozo

agreed to speak to Detective Rodriguez. 3 RR 33, State’s Ex. 3 & 4. At that time,

Cardozo confirmed that Petitioner had regular use of a cell phone and that the

number for that cell phone was (773) 690-8738. State’s Ex. 13, 3 RR 35. Detective
                                       11
Greenwalt later subpoenaed the records for the cell phone number provided by the

Petitioner and confirmed by Cardozo and discovered that calls made and received

by that cell phone hit cell phone towers close to the scene of the murder at the time

the murder was committed. 3 RR 36-37.




STATE’S SOLE GROUND FOR REVIEW ON MOTION FOR REHEARING

      Based on the Court’s own analysis, Detective Rodriguez’s
      request for Petitioner’s cell phone number did not meet the
      “should know” test and therefore does not constitute
      interrogation for purposes of Miranda.


      On petition for discretionary review, this Court took up the question of

whether the exception to Miranda that allows routine inquiries normally attendant

to arrest and custody extends to questions of a biographical nature asked by law

enforcement of a person who has already been in custody for hours but has not yet

been informed of his rights under the Fifth Amendment of the United States

Constitution, Miranda v. Arizona and TEX. CODE. CRIM. PROC. art. 38.22.

      In its holding on discretionary review, the Court summarized the exceptions

to interrogation under Miranda thusly:

      [A] question that seeks to elicit biographical data may be deemed “not
      interrogation” under either of two theories. First, such a question may
      be deemed “not interrogation” because it does not meet the general
      test for interrogation, i.e. it does not meet the “should know” test. That
      is, a court could decide that a particular question about biographical
      data was so innocuous that its tendency to produce an incriminating
                                         12
      response was not something the police officer should have known.
      Second a biographical question may be deemed “not interrogation”
      under the “booking” (or “administrative”) exception. That is, a court
      could decide that a particular question about biographical data was a
      routine administrative inquiry.

      State v. Cruz, 2015 Tex. Crim. App. LEXIS 561, *9 (Tex. Crim. App.
      May 13, 2015).

      This Court then went on to hold that the facts of the instant case supported a

finding that the cell phone question posed by Detective Rodriguez lacked a

legitimate administrative purpose. Id. at *17. At the same time, this Court also held

that the evidence supported a finding that Detectives Rodriguez and Greenwalt

knew or should have known that the answer to their questions would produce an

incriminating response. Id. at 13. It is this particular holding that the State would

ask the court to revisit as the facts of this case do not reflect that Rodriguez and

Greenwalt knew or should have known that their biographical questions, and in

particular their question regarding Petitioner’s cell phone number, would produce

a response that would incriminate Petitioner in the offense with which he is

charged.

      This Court expressly held that “biographical data does not become

interrogation simply because the identifying information may later aid law

enforcement in conducting a criminal investigation.” Id. at 12. As to the instant

case, the Court further agreed that “questioning [Petitioner] about his address and

phone number did not become interrogation simply because the answers enabled
                                         13
police to locate and search his home or obtain his cell-phone records.” Id. What

this Court took issue with, apparently, was the fact that Petitioner’s name and

phone number had “incriminating value in themselves and did not simply lead to

other incriminating evidence,” specifically noting that asking for Petitioner’s name

“would have shown that he had previously given a false name,” which, by itself, is

a criminal offense. Id. See TEX. PENAL CODE §38.02.3

       The State would respectfully suggest that in determining whether a question

is directly incriminating, the analysis should logically turn on whether the response

is likely to incriminate the suspect in the offense actually being investigated.

       To begin with, APD detectives were not in Berwyn investigating Petitioner

for giving a false name. Petitioner was not being held in the Berwyn Jail for that

offense nor is he now, based on the information he provided to Rodriguez and

Greenwalt, currently facing a charge, either in Illinois or in Texas, for the offense

of failure to identify.4 If the Court’s analysis is meant to prohibit use of Petitioner’s

statement to incriminate him for the offense of failure to identify, then so be it. The
3
  The Court’s opinion does not specifically address how the asking the Petitioner for his cell
phone number was directly incriminating to him.
4
  In this way, the instant case is highly distinguishable from a number of the other cases the
Court cites to support its ultimate holding. An inquiry into defendant’s true identity did meet the
“should know” test in Thomas v. United States because, unlike Petitioner, defendant’s true
identity directly corroborated information the police already had about the suspect in their case.
731 A.2d 415 (D.C. 1999). Likewise, the defendant’s true identity was directly incriminating in
United States v. Parra, because it immediately identified him as an alien in possession of
firearms. 2 F.3d 1058 (10th Cir.), cert. denied, 510 U.S. 1026, 126 L. Ed. 2d 597, 114 S. Ct. 639
(1993). Moreover, in Timbers v. Commonwealth, once the defendant identified herself to the
police by her true name, she was charged with forgery for previously providing a false name in
relation to her fingerprint records. 28 Va. App. 187, 503 S.E.2d 233 (Va. App. 1998).
                                                14
issue here, however, is whether or not Petitioner is properly implicated in a murder

and the “holy grail” in this case begins and ends with the cell phone number. The

cell phone number itself does not directly incriminate Petitioner in any offense. In

fact, Petitioner’s cell phone number falls directly into that category of information

described by this Court as information “may later aid law enforcement in

conducting a criminal investigation.” Id. at 12. Under this Court’s own analysis,

the question that elicited the cell phone number is not rightly characterized as

interrogation under Miranda. As this Court expressly noted, “the Miranda rule is

concerned with the incriminating nature of the responses to questions, not with

what evidence those responses might lead to, and the rule does not bar the

admission of other evidence that is later obtained as a result of a suspect’s

statements.” Id. at 11.

      A detective leaving no stone unturned in the hopes that a solid clue can be

found is not someone who knows or should know that his inquiry will unlock a

mystery.    Those two individuals occupy two very different locations on a

continuum. When they asked Petitioner for his cell phone number, Rodriguez and

Greenwalt were doing what any competent homicide investigator does: following

all possible leads and investigating any reasonable hunches. Some leads and

hunches bear fruit. Some do not. With respect to this particular hunch, the

detectives could not have known, at the time they made the inquiry that the cell

                                         15
phone would, in fact, inculpate Petitioner in the murder because information

showing that calls made and received by that cell phone hit cell phone towers close

to the scene of the murder at the time the murder was committed only became

available to them after the cell phone records were subpoenaed, which was well

after Petitioner’s interview at the Berwyn Police Department. 3 RR 36-37. At the

point when Petitioner was asked by Detective Rodriguez for his cell phone

number, there was just as much of a possibility that the answer to the question

would have led to evidence exculpating Petitioner as inculpating him. 3 RR 36, 41.

The Third Court of Appeals rightly adopted this reasoning in its holding below:

      In this case, Detective Rodriguez’s initial questions were purely
      biographical; he asked only [Petitioner’s] name, address, phone
      number, whether he lived with anyone, and when he moved to the
      United States. None of these questions relate to an element of murder
      and there is nothing in the record to indicate that Detective Rodriguez
      should have known that these questions were likely to illicit an
      incriminating response. The fact that Detective Rodriguez
      subjectively hoped that [Petitioner’s] phone number or address
      might lead to relevant evidence does not transform this otherwise
      routine inquiry into an interrogation.

      State v. Cruz, 03-12-00728-CR, 2014 Tex. App. LEXIS 296, 2014
      WL 108353, at *16 (Tex. App. Austin, January 10, 2014) (not
      designated for publication) (emphasis added).




                                        16
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED the State respectfully prays that

the Court of Criminal Appeals grant this motion for rehearing, overrule petitioner’s

sole ground for review and affirm the judgment of the Third Court of Appeals.

                                                  Respectfully submitted,

                                                  ROSEMARY LEHMBERG
                                                  District Attorney
                                                  Travis County, Texas

                                                  /s/ Kathryn A. Scales
                                                  Kathryn A. Scales
                                                  Assistant District Attorney
                                                  State Bar No. 06022700
                                                  P.O. Box 1748
                                                  Austin, Texas 78767
                                                  (512) 854-9400
                                                  Fax No. 854-4810
                                                  Kathryn.Scales@traviscountytx.gov
                                                  AppellateTCDA@traviscountytx.gov




                                        17
                      CERTIFICATE OF COMPLIANCE


      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based

upon the computer program used to generate this motion, that this motion contains

3,942 words, excluding words contained in those parts of the motion that Rule

9.4(i) exempts from inclusion in the word count. I certify, further, that this motion

is printed in a conventional, 14-point typeface.



                                              /s/ Kathryn A. Scales
                                              Kathryn A. Scales
                                              Assistant District Attorney



                         CERTIFICATE OF SERVICE


      This is to certify that the above State's Motion for Rehearing was served on

Petitioner by U.S. mail, electronic mail, facsimile, or electronically through the

electronic filing manager, to the Petitioner’s attorneys, Michael Mowla, at 445 E.

FM 1382, #3-718, Cedar Hill, Texas 75104 and Leonard Martinez, at 812 San

Antonio, Suite 101, Austin, Texas 78701, and to the State’s Prosecuting Attorney,

Lisa McMinn, at P.O. Box 13046, Capitol Station, Austin, Texas 78711, on this

28th day of May, 2015.

                                                    /s/ Kathryn A. Scales
                                                    Kathryn A. Scales
                                                    Assistant District Attorney
                                         18
