                                                                                            77,036
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 11/9/2015 12:00:00 AM
                                                                Accepted 11/18/2015 12:46:52 PM
                                                                                  ABEL ACOSTA
     IN THE COURT OF CRIMINAL APPEALS OF TEXAS                                            CLERK

                                No. AP-77,036
                                                                        November 18, 2015




JUAN BALDERAS                                    On Direct Appeal from the
       Appellant,                                179th District Court of Harris,
                                                 Texas; Cause No. 1412826.

                                                 ****************
v.                                               THIS IS A DEATH
                                                 PENALTY CASE

THE STATE OF TEXAS
          ___________________________________________________________


          APPELLANT’S POST-SUBMISSION BRIEF
          ___________________________________________________________


ORAL ARGUMENT RECEIVED 10/07/2015


                                                R. Scott Shearer
                                                TBA No. 00786464
                                                917 Franklin, Suite 320
                                                Houston, Texas 77002
                                                (713) 254-5629
                                                (713) 224-2889 FAX
                                                ShearerLegal@Yahoo.com

                                                Attorney for Appellant
                                                (court-appointed)

                                                November 7, 2015
                                      INDEX OF AUTHORITIES

                                                                                                                  Page

CASES
Beall v. Spear, 106 Kan. 690, 189 P. 938 (Kan. 1920)............................................10

Blair v. State, 511 S.W.2d 277 (Tex. Cr. App. 1974)..............................................18

Blake v. State, 365 S.W.2d 795 (Tex. Cr. App.1963) ..............................................18

Coronado v. State, 351 S.W.2d 315, 329 (Tex. Cr. App. 2011) .................... 6, 8, 15

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) .................................5

Diaz v. State, 491 S.W.2d 166 (Tex. Cr. App. 1973) ................................................9

Flores v. State, 509 S.W.2d 580 (Tex. Cr. App. 1974) .............................................9

Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948)..................................15

Hartsock v. State, 322 S.W.3d 775 (Tex. App. - Fort Worth 2010, no pet.) ...........16

Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740 (1934)................................18

Marras v. State, 741 S.W.2d 395 (Tex. Cr. App.1987), overruled on other grounds,

  Garrett v. State, 851 S.W.2d 853 (Tex. Cr. App. 1993) .......................................16

Maryland v. Craig, 497 U.S. 836 (1990) ...............................................................5, 6

Miller v. State, 177 S.W.3d 1 (Tex. App. - Houston [1st Dist.] 2004, no pet.) .........9

People v. Rivera, 15 A.D.3d 859, 788 N.Y.S.2d 802 (N.Y.App.Div.2005), leave to

  appeal denied ........................................................................................................10

Simmons v. State, 622 S.W.2d 111 (Tex. Cr. App. 1981) .......................................16


                                                           1
State v. Faafiti, 54 Haw. 637, 513 P.2d 697 (1973) ................................................11

Thomas v. State, 841 S.W.2d 399 (Tex. Cr. App. 1992) .........................................18

Torres v. State, 116 S.W.3d 208 (Tex. App. - El Paso 2003, no pet.) .....................16

Wood v. State, 486 S.W.2d 771 (Tex. Cr. App. 1972) ............................................17


STATUTES
TEX. CRIM. PROC. CODE ANN. art. 38.30........................................................... 10, 15

OTHER AUTHORITIES
Arthur Train, The Prisoner at the Bar; sidelights on the administration of criminal
 justice 239 (1908) ....................................................................................................8

TREATISES
WIGMORE ON EVIDENCE (Chadbourn Ed. 1970), §812(6), p. 283 ..................17




                                                           2
     IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                                 No. AP-77,036



JUAN BALDERAS                                      On Direct Appeal from the
      Appellant,                                   179th District Court of Harris,
                                                   Texas; Cause No. 1412826.

                                                   ****************
v.                                                 THIS IS A DEATH
                                                   PENALTY CASE

THE STATE OF TEXAS
          ___________________________________________________________


          APPELLANT’S POST-SUBMISSION BRIEF
          ___________________________________________________________


ORAL ARGUMENT RECEIVED 10/07/2015



      JUAN BALDERAS, by and through counsel on appeal, files this his Post-

Submission Brief for Appellant. Appellant seeks to provide further briefing based

upon the questions posed by the Court at oral argument. 1 In support of his prayer

for reversal he would respectfully show the Court the following:



1
 The questions presented are subject to undersigned counsel’s memory of the event
and may be rephrased or paraphrased.
                                        3
              QUESTIONS PRESENTED


QUESTION NUMBER ONE: WHAT ROLE DOES RELIABILITY
PLAY IN A RIGHT TO CONFRONTATION ANALYSIS?

QUESTION NUMBER TWO: DOES THE UNITED STATES
SUPREME COURT ALLOW SOME ELEMENTS OF
CONFRONTATION TO BE DISPENSED WITH AND YET STILL
PASS CONSTITUTIONAL MUSTER?

QUESTION NUMBER THREE: WHAT IS THE STANDARD TO
DETERMINE WHETHER AN INTERPRETER SHOULD BE
APPOINTED FOR A WITNESS?

QUESTION NUMBER FOUR: HOW FLUENT IN ENGLISH MUST
A WITNESS BE BEFORE AN INTERPRETER IS DEEMED
UNNECESSARY?

QUESTION NUMBER FIVE: A WITNESS’ ABILITY TO SPEAK
ENGLISH IS NOT THE SAME AS SAYING AN INTERPRETER IS
UNNECESSARY, IS IT?

QUESTION NUMBER SIX: WOULD ALLOWING A WITNESS TO
SPEAK IN THE LANGAUGE OF THEIR PREFERENCE ALLOW
THEM TO “GAME THE SYSTEM” AND THEREBY IMPEDE THE
DUE ADMINISTRATION OF JUSTICE?

QUESTION NUMBER SEVEN: WHO IS IN THE BEST POSITION
TO DETERMINE WHETHER AN INTERPRETER SHOULD BE
APPOINTED?

QUESTION NUMBER EIGHT: SHOULD THE AUDIOTAPE OF
WENDY BARDALES’ POLICE INTERVIEW HAVE BEEN
ADMITTED AS DEMONSTRATIVE EVIDENCE?

QUESTION NUMBER NINE: DOES AN AUDIOTAPE EXIST OF
THE ENTIRE TRIAL?

                         4
      QUESTION NUMBER ONE RESTATED: WHAT ROLE DOES
      RELIABILITY PLAY IN A RIGHT TO CONFRONTATION
      ANALYSIS?


      In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) the Supreme

Court stated that, “the [Confrontation] Clause’s ultimate goal is to ensure reliability

of evidence.” Crawford, 541 U.S. at 61. According to the Supreme Court, “The

Clause’s central purpose, to ensure the reliability of the evidence against a defendant

by subjecting it to rigorous testing in an adversary proceeding before the trier of fact,

is served by the combined effects of the elements of confrontation: physical

presence, oath, cross-examination, and observation of demeanor by the trier of fact.”

Maryland v. Craig, 497 U.S. 836, 846 (1990). The Confrontation Clause does not

demand that a particular piece of evidence be reliable. Rather, it demands a

particular trial mechanism [cross-examination] be employed to try and assure such

reliability. “[I]t is a procedural rather than a substantive guarantee. It commands,

not that evidence be reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination. . . .” Crawford, 541 U.S. 36, 61-62.




                                           5
      QUESTION NUMBER TWO RESTATED: DOES THE UNITED
      STATES SUPREME COURT ALLOW SOME ELEMENTS OF
      CONFRONTATION TO BE DISPENSED WITH AND YET STILL
      PASS CONSTITUTIONAL MUSTER?


      In Maryland v. Craig, 497 U.S. 836, 846 (1990) the Supreme Court held that

a special closed circuit television procedure used to protect a vulnerable child

witness in a sexual abuse case satisfied the requirements of the Confrontation

Clause. Maryland’s statutory procedure prevents a child witness from seeing the

defendant as he or she testifies against the defendant at trial. The Supreme Court

found it significant, however, that Maryland’s procedure preserved all of the other

elements of the confrontation right besides actual face-to-face confrontation.

Maryland v. Craig, 497 U.S. at 851. The Court held that the Maryland procedure

was “functionally equivalent to that accorded live, in-person testimony.” Id. While

holding that some component of confrontation might be dispensed with in special

circumstances, the Court cautioned that these circumstances would be rare: “That

the face-to-face confrontation requirement is not absolute does not, of course, mean

that it may easily be dispensed with.” Maryland v. Craig, 497 U.S. at 850. 2 Even a




2
 According to this Court’s opinion in Coronado v. State, 351 S.W.2d 315, 321 (Tex.
Cr. App. 2011) the Supreme Court has nibbled Maryland v. Craig “into Swiss
cheese” by repeating the categorical nature of the right to confrontation in its more
recent cases.
                                         6
partial denial of confrontation must have a compelling government interest to pass

constitutional muster. See Maryland v. Craig, 497 U.S. 836, 846 (1990).

        In the present case, the trial court dispensed with the trier of fact’s ability to

observe the demeanor of Wendy Bardales by allowing Wendy Bardales to testify

through an interpreter, though she spoke English. The district attorney, while

acknowledging that Wendy Bardales spoke English with sufficient comprehension,

asked the trial court to allow her to testify in Spanish because she was more

comfortable speaking Spanish:


        In this particular case, the witness has already indicated that although
        she does understand the English language and can read it and can speak
        it, she is more comfortable and more certain about what her
        understanding of everything is in the Spanish language. And that’s the
        reason that the State is requesting an interpreter in this case.

(RR XXVI at 5-10).


        A witness giving testimony has no right to speak in the language of their

preference or to be comfortable. In fact, cross-examination is supposed to be

uncomfortable. “The word ‘confront,’ after all, also means a clashing of forces or

ideas, thus carrying with it the notion of adversariness.” Maryland v. Craig, 497

U.S. at 845. While the comfort of a witness is a valid concern for trial courts, 3 this

concern does not rise to the level of a constitutional amendment. “There is no


3
    As a matter of decorum and simple politeness.
                                            7
‘balancing’ the defendant’s constitutional right of confrontation and cross-

examination against other social policies, even compelling ones.” Coronado v.

State, 351 S.W.2d 315, 329 (Tex. Cr. App. 2011). Whatever sympathies members

of this Court might have for a witness asked to testify in a non-native language, the

comfort of a witness must always give way to the constitutional mandate that there

be as full and complete a confrontation as possible. Wendy Bardales was a testifying

adult and not a vulnerable victim as was the witness in Maryland v. Craig. Because

no compelling government interest presented itself in this case, the trial court erred

by diminishing Appellant’s right to confrontation. 4




4
  In his book The Prisoner at the Bar, lawyer and author Arthur Train wrote that, “It
is also practically impossible to cross-examine through an interpreter, for the whole
psychological significance of the answer is destroyed. Ample opportunity being
given for the witness to collect his wits and carefully frame his reply.” Arthur Train,
The Prisoner at the Bar; sidelights on the administration of criminal justice 239
(1908).
                                          8
      QUESTION NUMBER THREE RESTATED: WHAT IS THE
      STANDARD TO DETERMINE WHETHER AN INTERPRETER
      SHOULD BE APPOINTED FOR A WITNESS?

      QUESTION NUMBER FOUR RESTATED: HOW FLUENT IN
      ENGLISH MUST A WITNESS BE BEFORE AN INTERPRETER IS
      DEEMED UNNECESSARY?


      In past cases this Court has set out the standards for determining whether an

interpreter is necessary. In Diaz v. State, the Court found no reversible error in

failing to appoint interpreter because there was ample evidence that the defendant

understood and communicated in the English language reasonably well. Diaz v.

State, 491 S.W.2d 166, 168 (Tex. Cr. App. 1973) (emphasis added); Compare Miller

v. State, 177 S.W.3d 1, 5 (Tex. App. - Houston [1st Dist.] 2004, no pet.), wherein

the defendant “could not speak English well enough to be reliable” and “could not

be effectively cross-examined [as] he could neither understand the questions, nor

repeat many answers that [had] been attributed to him by the investigating officer.”

      In Flores v. State, this Court held that: “[t]he mere fact that an accused may

be more fluent in speaking Spanish does not, in and of itself, make it incumbent upon

a trial court to appoint an interpreter for an accused who speaks and understands

the English language.” Flores v. State, 509 S.W.2d 580, 581 (Tex. Cr. App. 1974)

(emphasis added); Baltierra v. State, 586 S.W.2d 556, 559 (Tex. Cr. App. 1979) (“.

. . we hold that when it is made known to the trial court that an accused does not

speak and understand the English language an interpreter must be furnished to

                                         9
translate to the accused the trial proceedings . . .”) (emphasis added); Accord Beall

v. Spear, 106 Kan. 690, 189 P. 938 (Kan. 1920) (“The request was refused, the judge

saying that he had reliable information that the witness could speak and understand

the English language. The statute authorizes the use of an interpreter ‘whenever

necessary.’ (citation omitted). No showing was made that such a situation had

arisen.”).

       In terms of Texas statutes, Article 38.30 of the Code of Criminal Procedure

provides for an “understand and speak” standard:

       When a motion for appointment of an interpreter is filed by any party
       or on motion of the court, in any criminal proceeding, it is determined
       that a person charged or a witness does not understand and speak the
       English language, an interpreter must be sworn to interpret for the
       person charged or the witness.

TEX. CRIM. PROC. CODE ANN. art. 38.30. (emphasis added).


       Other states have similar standards to that of Texas. The New York Appellate

Division has stated that, “there is no need to appoint an interpreter merely because

English is not defendant’s first language. Only when a defendant exhibits an

inability to understand the proceedings or to communicate with counsel must a court

inquire whether an interpreter is needed.” People v. Rivera, 15 A.D.3d 859, 788

N.Y.S.2d 802, 803 (N.Y.App.Div.2005), leave to appeal denied. The Hawaii

Supreme Court has held that where the record demonstrates that the defendant had

a sufficient command of English to understand the questions asked and answers

                                         10
given, the court’s failure to appoint an interpreter is not error. State v. Faafiti, 54

Haw. 637, 513 P.2d 697, 699 (1973).

        In the case at bar it matters not whether the benchmark is the “reasonably

well” standard of Diaz or the “understand and speak” standard of Article 38.20 and

Flores - Wendy Bardales’ English skills satisfied them both. The State conceded as

much:


        In this particular case, the witness has already indicated that although
        she does understand the English language and can read it and can
        speak it, she is more comfortable and more certain about what her
        understanding of everything is in the Spanish language.


(RR XXVI at 5-10)(emphasis added).




                                          11
      QUESTION NUMBER FIVE RESTATED: A WITNESS’ ABILITY
      TO SPEAK ENGLISH IS NOT THE SAME AS SAYING AN
      INTERPRETER IS UNNECESSARY, IS IT?


      The answer to the questions depends on the speaking abilities of the witness.

A witness who only has a limited ability to speak English may very well need and

require the assistance of an interpreter. However, for a witness who can speak in

English “reasonably well” or “speaks and understands” English or speaks “fluently,”

their ability to speak English equates to an interpreter being unnecessary. They have

demonstrated an ability that exceeds the standard that the law requires. See Flores;

Baltierra; Diaz, supra. A witness has no right to testify in the language of their

choosing or in a language in which they feel more comfortable. In the present case

the State conceded that the witness could speak and understand English at the time

her testimony was given. A witness that does speak English should be required to

speak English.




                                         12
        QUESTION NUMBER SIX RESTATED: WOULD ALLOWING A
        WITNESS TO SPEAK IN THE LANGAUGE OF THEIR
        PREFERENCE ALLOW THEM TO “GAME THE SYSTEM” AND
        THEREBY IMPEDE THE DUE ADMINISTRATION OF JUSTICE?


        Allowing a defendant or witness to testify in the language of their choosing

would cause absurd results.       If comfort, preference, or being better able to

communicate in a different language is the standard, chaos would surely ensue.

There      are    approximately     7,102      known     living     languages.     See

http://www.ethnologue.com/. Are the courts of this State going to be required to

provide 7,102 different interpreters for every language spoken on earth? Flying in

interpreters from all over the United States and the nether regions of the world upon

simple request of a witness would bankrupt most counties. Should the courts be

required to pay the expense of flying in interpreters from Tahiti, for instance, if the

defendant speaks fluent English but prefers Tahitian? What if the witness prefers to

speak in one of the 38 forms of the Uralic language family; one of the 1257

languages of Austronesian; or because they prefer to speak in the Mapudungu

language?

        Allowing a defendant or witness to testify in the language of their choosing

would also give such persons the ability to unnecessarily postpone or delay the trial.

A witness who has previously spoken to all parties in English [like Ms. Balderas]

might show up for Court and thereby claim the right to speak in a foreign language


                                          13
through an interpreter. One can imagine the utter chaos that such a rule would cause

if it were adopted.




                                        14
      QUESTION NUMBER SEVEN RESTATED: WHO IS IN THE BEST
      POSITION TO DETERMINE WHETHER AN INTERPRETER
      SHOULD BE APPOINTED?


      Article 38.30 of the Code of Criminal Procedure references a “determination”

being made to decide whether or not a witness, “does not understand and speak the

English language. . . ” TEX. CRIM. PROC. CODE ANN. art. 38.30.        A trial court’s

decision whether or not to allow testimony through an interpreter is reviewed for an

abuse of discretion. See Baltierra v. State, 586 S.W.2d 556, 557 (Tex. Cr. App.

1979) (The determination of whether an interpreter is necessary rests largely in the

discretion of the trial court); Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574,

579 (1948) (the generally accepted rule concerning whether an interpreter is

necessary rests largely in the discretion of the trial court).

      While discretion properly rests in the trial court, that discretion is not

unfettered. It can be abused, as it was in the present case. Faced with overwhelming

evidence that the witness was fluent in English, coupled with the State’s concession,

the trial judge simply made the wrong call. The trial judge did not weight the

competing interests correctly. The trial court admitted that Appellant’s interests

were more important, but overruled his objection, nevertheless. (RR XXVI at 5-10).

This was error. “There is no ‘balancing’ the defendant’s constitutional right of

confrontation and cross-examination against other social policies, even compelling

ones.” Coronado v. State, 351 S.W.2d 315, 329 (Tex. Cr. App. 2011).

                                           15
      QUESTION NUMBER EIGHT RESTATED: SHOULD THE
      AUDIOTAPE OF WENDY BARDALES’ POLICE INTERVIEW
      HAVE BEEN ADMITTED AS DEMONSTRATIVE EVIDENCE?


      According to this Court, “Visual, real, or demonstrative evidence, regardless

of which term is applied, is admissible upon the trial of a criminal case if it tends to

solve some issue in the case and is relevant to the cause that is, if it has evidentiary

value, i.e., if it sheds light on the subject at hand.” Simmons v. State, 622 S.W.2d

111, 113 (Tex. Cr. App. 1981). “Demonstrative evidence has no independent

relevance to the case but is offered to help explain or summarize the witness’s

testimony or to put events and conditions into a better perspective.”

      “Demonstrative evidence” is “evidence admitted to serve as a visual aid or

illustration that meets the tests of relevancy and materiality, as well as the limitations

imposed by Texas Rule of Evidence 403.” Hartsock v. State, 322 S.W.3d 775, 779

(Tex. App. - Fort Worth 2010, no pet.).             “Demonstrative evidence has no

independent relevance to the case but is offered to help explain or summarize the

witness’s testimony or to put events and conditions into a better perspective.” Torres

v. State, 116 S.W.3d 208, 213 (Tex. App. - El Paso 2003, no pet.).

      A trial court’s discretion to permit the use of visual aids, charts, and video

recordings during trial is well established. Marras v. State, 741 S.W.2d 395, 404-

05 (Tex. Cr. App.1987), overruled on other grounds, Garrett v. State, 851 S.W.2d

853, 860 (Tex. Cr. App. 1993) (holding that a videotaped re-enactment of the

                                           16
defendant’s flight from the crime scene was admissible); See Wood v. State, 486

S.W.2d 771, 774 (Tex. Cr. App. 1972) (arm and hand signals described as

demonstrative evidence).

      To establish the relevancy of demonstrative evidence, the proponent must first

authenticate it. Torres, 116 S.W.3d at 213. The proponent is then required to

establish that the evidence is “fair and accurate” and that it helps the witness to

demonstrate or illustrate his testimony. Id.

      In the present case, Appellant offered into evidence the audio recording of

Wendy Bardales’ interview with Sgt. Ruland. (RR XXIX at 62-63). The purpose

in offering the recording into evidence was to show the jury that Ms. Bardales spoke

in English to Sergeant Ruland eight [8] years before the trial and that, therefore, her

need of an interpreter was a ruse to explain her inconsistencies and to avoid cross-

examination. 5 The audio recording was, therefore, demonstrative evidence of her

speaking and auditory abilities both at the time of the offense and during the trial.

The audio recording would have aided the jury in understanding to what extent


5
 Concerning the situation in which a witness falsely claims to need an interpreter,
Dean Wigmore states the following:

      “A witness who demands an interpreter on the ground of inability to
      speak English is discredited as a falsifier if it is shown that he is in fact
      able to speak it.” (emphasis in original).

WIGMORE ON EVIDENCE (Chadbourn Ed. 1970), §812(6), p. 283.

                                           17
Wendy Bardales spoke English so that the jury might compare her claims of a

language barrier with her inconsistent statements.

      The audiotape can also be fairly described as impeachment evidence.

Impeachment evidence is that which disputes or contradicts other evidence. Thomas

v. State, 841 S.W.2d 399, 404 (Tex. Cr. App. 1992) (“Impeachment evidence is that

which is offered ‘... to dispute, disparage, deny, or contradict....’ ”). Admission of

impeachment evidence is particularly admissible where the witness is the sole or

chief witness of the State. Blake v. State, 365 S.W.2d 795, 796 (Tex. Cr. App.1963);

Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740, 742 (1934). Admission of

impeachment evidence is particularly required where the question before the jury

comes down to an issue of whether to believe the witness’ version of the events or

that of the accused. Blair v. State, 511 S.W.2d 277, 279 (Tex. Cr. App. 1974).

      In the case at bar, admission of the audio tape would have impeached and

contradicted Wendy Bardales’ claim that her inconsistent answers were the result of

a language barrier. Wendy Bardales’ English language conversation with Sergeant

Ruland occurred just after the murder. The audio tape would have discredited her

completely. Had the jury been allowed to hear the taped conversation, the jury

would have been made aware that the State’s use of an interpreter was a mere

subterfuge and that Wendy Bardales was lying about her alleged lack of proficiency

in English. The audiotaped directly impeached her claim that she could not speak


                                         18
English proficiently. The State’s attempt to explain away the inconsistencies in

Wendy Bardales’ story as a “lack of communication” would have been exposed.

Wendy Bardales was the State’s only eyewitness to the murder and her credibility

carried particular weight with the jury. We know this from two of their jury notes.

(CR at 3295, 3297). Had the audio tape been allowed into evidence, it would have

made the difference between conviction and acquittal.




                                        19
      QUESTION NUMBER NINE RESTATED: DOES AN AUDIOTAPE
      EXIST OF THE ENTIRE TRIAL?


      Undersigned counsel posed this question to the official court reporter.

According to her, an audio tape of the trial does exist with the exception of a few

days where the recording device malfunctioned.




                                        20
                            PRAYER FOR RELIEF


       FOR THESE REASONS, the Appellant prays the Honorable Court of
Criminal Appeals will reverse his conviction and render a verdict of not guilty, or
remand the case for a new trial and grant him such further relief to which he may be
entitled.



                                                   Respectfully submitted,


                                             By:   /s/ R. SCOTT SHEARER
                                                   R. Scott Shearer
                                                   TBA No. 00786464
                                                   917 Franiklin, Suite 320
                                                   Houston, Texas 77002
                                                   (713) 254-5629
                                                   (713) 224-2889 FAX
                                                   ShearerLegal@Yahoo.com

                                                   Attorney for Appellant
                                                   (court-appointed)




                                        21
        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

           Certificate of Compliance with Type-Volume Limitations
                          and Typeface Requirements.


1.   This brief complies with the type-volume limitation of TEX. R. APP. PROC.
     9.4(i)(2)(A) and (3) because:


     This brief contains 3,266 words, excluding the parts of the brief
     exempted by TEX. R. APP. PROC. 9.4(i)(1).



2.   This brief complies with the typeface requirements of TEX. R. APP. PROC.
     9.4(e) because:


     this brief has been prepared in a conventional proportionally spaced
     typeface using Microsoft WORD 97 version 7.0 in Times New Roman
     14 point type.




                                                 /s/ R. SCOTT SHEARER
                                                 R. Scott Shearer




                                      22
                         CERTIFICATE OF SERVICE


       I certify that a copy of this Post-Submission Brief for Appellant has been
served upon the State of Texas by e-mailing a copy of same to the following parties
at their respective addresses on this the 7th day of November, 2015:


A.D.A. CLINTON A. MORGAN
DISTRICT ATTORNEY’S OFFICE
APPELLATE DIVISION
1201 FRANKLIN, SUITE 600
HOUSTON, TX 77002
Morgan_Clionton@dao.hctx.net


                                                   /s/ R. SCOTT SHEARER
                                                   R. Scott Shearer




                                        23
