                                                                                  ACCEPTED
                                                                             13-16-00017-CR
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                       5/13/2016 12:19:10 PM
                                                                            Dorian E. Ramirez
                                                                                       CLERK




                     #13-16-00017-CR                   FILED IN
                                               13th COURT OF APPEALS
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                                               5/13/2016 12:19:10 PM
                                                 DORIAN E. RAMIREZ
     Thirteenth Court of Appeals, Corpus   Christi & Edinburg
                                                        Clerk




                  THE STATE OF TEXAS,
                           Appellant

                              v.

                    KAREN KENNEDY,
                           Appellee



ON STATE’S APPEAL FROM THE COUNTY COURT AT LAW NO. 3
         OF NUECES COUNTY, CAUSE #15-CR-1497-3


               STATE’S REPLY BRIEF
                               A. Cliff Gordon
                               Tex. Bar #00793838
                               Asst. Dist. Atty., Nueces County
                               Nueces County Courthouse
                               901 Leopard St., Rm. 206
                               Corpus Christi, TX 78401
                               361.888.0410 phone
                               361.888.0399 fax
                               cliff.gordon@nuecesco.com
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................. iii
ARGUMENT ............................................................................................................1
     1. Kennedy’s disregard of the Clerk’s Record creates no issue
        about the Complaint and Information that the State filed
        against her ....................................................................................................1
     2. Kennedy admits to the sufficiency of the Complaint and
        Information used filed by the State against her .....................................2
     3. Kennedy’s brief does not dispute the State’s position ..........................4
PRAYER ....................................................................................................................5
CERTIFICATE OF COMPLIANCE ......................................................................6
CERTIFICATE OF SERVICE .................................................................................6




                                                             ii
                                     INDEX OF AUTHORITIES


Rules
Tex. R. App. P. 34.1 .................................................................................................2




                                                          iii
                                    ARGUMENT

      Kennedy’s argument boils down to the following proposition of law:

      If the State serves copies of the Complaint and Information in
      discovery that are unsigned and, thus, could not serve as valid
      charging instruments if they had been filed as such, then the
      valid, signed Complaint and Information filed by the State are
      rendered invalid and should be dismissed.

This is legal and logical nonsense.

1.    Kennedy’s disregard of the Clerk’s Record creates no issue about
      the Complaint and Information that the State filed against her.

      Kennedy casts the “question [as] which charging instruments were

actually filed, at what time, in what manner, and whether the method of

their execution complied with Tex. Crim. Proc. Code.” Appellee’s brief, at

11.   But that question was answered against Kennedy and by proof that

was undisputed.

      Per the Clerk’s Record1, the State filed only one Complaint and

Information against Kennedy, which were fully executed, and did so on

April 27, 2015. CR 4, 5. The Clerk’s Record reveals that the unsigned


1
      “The appellate record consists of the clerk’s record and, if necessary to the
appeal, the reporter’s record.” TEX. R. APP. P. 34.1.
                                            1
copies of the Complaint and Information upon which Kennedy relies were

never filed with the trial court except by Kennedy as attachments to her

motion to dismiss. CR 11, 12 (labeled as “Defendant’s Exhibit” 1 and 2).

     Kennedy speculates that “the point of contention is not a single

complaint, but rather two separate complaints.” Appellee’s brief, at 13.

But that statement omits any citation to the record and is baseless.

Similarly, Kennedy claims that “there is no evidence of when, or if, the

State’s proffered charging documents were filed, only when they were

signed.” Ibid. Again, this baseless statement omits any citation to the

Clerk’s Record. The Clerk’s Record proves plainly that the Complaint and

Information that the State filed against Kennedy were both signed and filed

on April 27, 2015. CR 4, 5.

2.   Kennedy admits to the sufficiency of the Complaint and
     Information filed by the State against her.

     In her response brief, Kennedy concedes that she attacked the file

copies of the Complaint and Information provided to her through

discovery, not the Complaint and Information filed by the State—




                                     2
       The Complaint and Information produced by the State
       pursuant to Defendant-Appellee’s discovery request are
       unsigned, and the Complaint bears an official stamp from the
       Clerk of the Court showing that said Complaint was filed on
       April 27th, 2015.

Appellee’s brief, at 8; see also id. at 9 (“The State provided no explanation as

to how or why its file copies are unexecuted, why unexecuted copies were

produced pursuant to Kennedy’s discovery request and the executed

copies were not, nor why said unexecuted file copies bear an official stamp

of the Clerk of the Court indicating they were filed.”). While conceding her

burden of proof, Kennedy offers no reason why the State must justify

documents it did not file to avoid dismissal of the Complaint and

Information that it did file.2

       Moreover, as to the Complaint and Information filed by the State (CR

4, 5), Kennedy admits to their sufficiency—




2
        The file copies contain a stamp of the District Clerk but no initials from any clerk
showing that they were actually accepted for filing. CR 11, 12. An examination of the
Clerk’s Record shows that the documents actually filed with the District Clerk contain
the initials of the deputy clerks that accepted them for filing. Not serving in discovery a
photocopy of the signed Complaint and Information saves the State time and resources.
                                             3
      Defendant-Appellee does not dispute that the charging
      documents first presented3 by the State at hearing on January 6,
      2016 are facially valid.

Appellee’s brief at 10.

      The Complaint and Information on which the State is relying
      are valid on their faces and Appellant-Defendant has made no
      argument otherwise.

Appellee’s brief at 13.

3.    Kennedy’s brief does not dispute the State’s position.

      In its principal brief, the State argued that the Complaint and

Information filed by the State are facially valid, and that Kennedy could

not meet her burden to invalidate them by reference to different

documents—unsigned file copies Complaint and Information served in

discovery.    Kennedy’s response?        Deflection:    “The State makes every

attempt to point out the differences between the two Complaints, but to

say they are different does nothing to shed light on the conflict.”

Appellee’s brief at 13. Kennedy utterly fails to explain how documents



3
      By “presented,” Kennedy must mean first when she first saw the official
Complaint and Information. But they had been on file since the inception of the case.
CR 4, 5. Kennedy’s implicit distinction has no bearing of the sufficiency of the
Complaint and Information filed by the State. CR 4, 5.
                                         4
served in discovery—which are not the Complaint and Information filed

by the State—could show that the Complaint and Information are

somehow invalid. She could not because they cannot.

      Further, supposing arguendo that Kennedy’s baseless theory were

true—that the State tried to charge Kennedy by defective, unsigned

complaint and information—it would provide no basis to dismiss the

signed Complaint and Information filed by the State, which Kennedy

admits are facially valid.

                                  PRAYER

      For these reasons, the State requests that the Court reverse the trial

court’s order that dismissed the Information, remand for further

proceedings, and grant the State all other proper relief.




                                      5
                                      Respectfully Submitted,

                                      /s/ A. Cliff Gordon
                                      A. Cliff Gordon
                                      Tex. Bar #00793838
                                      Asst. Dist. Atty., Nueces County
                                      Nueces County Courthouse
                                      901 Leopard St., Rm. 206
                                      Corpus Christi, TX 78401
                                      361.888.0410 phone
                                      361.888.0399 fax
                                      cliff.gordon@nuecesco.com



                   CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 1,155 total words.

                      CERTIFICATE OF SERVICE

      On May 13, 2016, a true copy of the foregoing was served via eServe
on the following:

     Mr. Heath Lauseng
     The Office of Heath O. Lauseng
     919 State Hwy. 361, Ste. 201
     Port Aransas, TX 78373
     361.749.1858 phone
     361.749.0889 fax
     heath@moneyandthelaw.com
     Appellate Counsel for Appellee

                                 /s/ A. Cliff Gordon_______________
                                 A. Cliff Gordon
                                    6
