                                                                       ACCEPTED
                                                                   08-15-00015-CR
                                                       EIGHTH COURT OF APPEALS
             08-15-00015-CR                                       EL PASO, TEXAS
                                                             4/20/2015 12:36:08 PM
                                                                DENISE PACHECO
                                                                            CLERK

             NO. 08-15-00015-CR

                                                  FILED IN
                                           8th COURT OF APPEALS
               IN THE                          EL PASO, TEXAS
         COURT OF APPEALS                  4/20/2015 12:36:08 PM
      EIGHTH DISTRICT OF TEXAS                 DENISE PACHECO
           EL PASO, TEXAS                           Clerk




          TOMMY JAMES LEWIS,
              Appellant,

                      v.

          THE STATE OF TEXAS,
                Appellee.

Appealed from the 109th Judicial District Court
         of Andrews County, Texas
Honorable Martin B. Muncy, Judge Presiding



       BRIEF OF THE APPELLANT

                    FIVECOAT & ROGERS, P.L.L.C.
                    Raymond K. Fivecoat
                    State Bar No. 24010024
                    214 W. Texas Ave., Ste. 811
                    Midland, Texas 79701
                    (432) 620-8774 (Telephone)
                    (432) 620-9945 (Facsimile)
                    ray@fivecoatlaw.com
                    Attorney for Appellant
                    TOMMY JAMES LEWIS


  ORAL ARGUMENT NOT REQUESTED
               IDENTIFY OF THE PARTIES AND COUNSEL

       Pursuant to Tex. R. App. P. 38.1(a), Appellant TOMMY JAMES LEWIS,
certifies that the following is a complete list of the names and addresses of the
parties to the final judgment of the trial and their counsel:

APPELLANT
TOMMY JAMES LEWIS                           RAYMOND K. FIVECOAT
6315 Ladera Dr.                             Fivecoat & Rogers, P.L.L.C.
Houston, Texas 77083                        214 W. Texas Ave., Ste. 811
                                            Midland, Texas 79701
                                                  Appellate Counsel

                                            LANE HAYGOOD
                                            Attorney at Law
                                            522 N. Grant Ave.
                                            Odessa, Texas 79761
                                                  Trial Counsel

APPELLEE
STATE OF TEXAS                              TIM MASON
                                            Andrews County District Attorney
                                            121 NW Ave. A
                                            Andrews, Texas 79714
                                                 Trial/Appellee Counsel


TRIAL COURT JUDGE                           JUDGE MARTIN B. MUNCY
                                            109th Judicial District Court
                                            Andrews County Courthouse
                                            201 N. Main, Rm. 201
                                            Andrews, Texas 79714




                                        i
                                         TABLE OF CONTENTS

LIST OF PARTIES AND THEIR COUNSEL..........................................................i

TABLE OF CONTENTS..........................................................................................ii

INDEX OF AUTHORITIES....................................................................................iii

STATEMENT OF THE CASE..............................................................................1-2

ISSUES PRESENTED ON APPEAL.......................................................................3

STATEMENT OF FACTS...................................................................................4-10

SUMMARY OF THE ARGUMENT......................................................................11

ARGUMENT.....................................................................................................12-14

ISSUE ONE:                  THE TRIAL COURT COMMITTED ERROR IN
                            DENYING APPELLANT THE LESSER-INCLUDED
                            OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.

ISSUE TWO:                  THE EVIDENCE WAS BOTH LEGALLY AND
                            FACTUALLY INSUFFICIENT TO ESTABLISH THAT
                            APPELLANT COMMITTED THE ACT OF BURGLARY
                            OF A BUILDING – ENTRY WITH COMMISSION OF
                            THEFT.

CONCLUSION.......................................................................................................15

PRAYER.................................................................................................................15

CERTIFICATE OF SERVICE................................................................................16

CERTIFICATE OF COMPLIANCE.......................................................................16




                                                            ii
                                     INDEX OF AUTHORITIES

Cases:

Brooks v. State,
     323 S.W.3d 893 894-894, 899 (Tex. Crim. App. 2010)................................13

Day v. State,
      532 S.W.2d 302, 306
      (Tex. Crim. App. 1975, overruled on other grounds by Hall v. State)............9

Hall v. State,
      225 S.W.3d 524,535-36 (Tex. Crim. App. 2007)………………....................8

Jackson v. Virginia,
      443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)..............13

King v. State,
      29 S.W.3d 556, 562 (Tex. Crim. App. 2000)………………………............13

King v. State,
      895 S.W.2d 701, 703 (Tex. Crim. App. 1995)……………………..............13

Rules and Statutes:

Tex. Crim. Proc. Ann. Art. 37.09...............................................................................9

Tex. Crim. Proc. Ann. Art. §2.05.............................................................................15

Tex. Pen. Code. §30.02........................................................................................8, 14

Tex. Pen. Code. §30.05..............................................................................................9




                                                         iii
                                NO. 08-15-00015-CR

                            TOMMY JAMES LEWIS,
                                Appellant,

                                          v.

                                STATE OF TEXAS,
                                    Appellee.


                                Brief of the Appellant

      Appellant, TOMMY JAMES LEWIS, submits his brief. Appellants will be

referred to as “Appellant”, and “Appellee” will be referred to as “State”.

                 Statement of the Case and Procedural History

      On June 5, 2011, Appellant was indicted for the state jail felony offense of

burglary of a building – entry with commission of theft. (CR, Pg. 5). Appellant’s

case was called for trial on the merits before a jury in the 109th Judicial District

Court of Andrews County, Texas on or about January 13, 2015. (RR 2, Pg. 5-6).

      On January 13, 2015, after the close of evidence and argument, the jury

returned a guilty verdict, as indicated by the signature of the presiding juror on the

jury charge. (CR, Pg. 21-28).

      The punishment phase of this case immediately proceeded before the Trial

Court. (RR 2, Pg. 222). The Trial Court sentenced Appellant to serve two (2) years

in the T.D.C.J. – State Jail Division. (RR 2, Pg. 224). (CR, Pg. 53-56). Appellant

filed his Notice of Appeal in this case. (CR, Pg. 58-59).

                                          1
                    Issues Presented on Appeal

ISSUE ONE:   THE TRIAL COURT COMMITTED ERROR IN
             DENYING APPELLANT THE LESSER-INCLUDED
             OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.

ISSUE TWO:   THE EVIDENCE WAS BOTH LEGALLY AND
             FACTUALLY INSUFFICIENT TO ESTABLISH THAT
             APPELLANT COMMITTED THE ACT OF BURGLARY
             OF A BUILDING – ENTRY WITH COMMISSION OF
             THEFT.




                             2
                               Statement of Facts

      Appellant's case was called for trial on January 13, 2015. (RR 2, Pg. 5-6).

Upon the reading of the indictment, Appellant entered a plea of not guilty. (RR 2,

Pg. 100-101).

      As its first witness, the State called Jacqueline Neighbors. (RR 2, Pg. 112).

Ms. Neighbors testified that on the morning of May 11, at approximately 4:00

a.m., she was awake, unable to sleep at her residence in Andrews County, Texas.

(RR 2, Pg. 112-113.)

      Ms. Neighbors testified that her dog suddenly began barking so she woke up

her husband to investigate. (RR 2, Pg. 113-114).       Ms. Neighbors called the

Sheriff's Department to report a break in (RR 2, Pg. 114). Mrs. Neighbors testified

that she did not see the Appellant, except after he was speaking with her husband.

(RR 2, Pg. 121). Additionally, Mrs. Neighbors did not see the Appellant inside of

the building constituting their game room, nor did she see him step outside of the

door. (RR 2, Pg. 122).

      Wayne Waldrop, a patrolman with the City of Andrews Police Department,

testified next in regards to responding to the emergency call at the Neighbor's

residence. (RR 2, Pg. 123-124). Waldrop testified that upon arrival he attempted

to go into the backyard because a woman was shouting about a man pinned under

the air conditioner, but the officer did not locate anyone there. (RR 2, Pg. 125).



                                        3
Waldrop testified that based upon the information he was given by Mr. Neighbors,

he located the Appellant at the Appellant's trailer next door. (RR 2, Pg. 127-128).

Waldrop testified that upon encountering the Appellant, who indicated that he had

been on the Neighbor's property as part of the Neighborhood Watch, and had seen

lights inside of the building prompting him to investigate what was going on. (RR

2, Pg. 132). Waldrop testified that Appellant admitted to being inside of the

building. (RR 2, Pg. 132). Waldrop further testified that he did not find any signs

of foul play on the door, did not dust for fingerprints, or photograph any of the

scene, including the open door to the game room. (RR 2, Pg. 138).

      The State then called Andrews County Deputy Sheriff Aaron Villalobos.

(RR 2, Pg. 141). When Villalobos arrived on scene, Villalobos testified he made

contact with the Appellant, who indicated that he had gone across the street

because he had saw some lights in the storage building and thought someone

needed help. (RR 2, Pg. 144). Villalobos further testified that he did not observe

the Appellant on the Neighbor's property, did not dust for fingerprints, photograph

any of the scene, did not observe any damage to any type of lock on the game

room door or conduct any type of investigation other than driving out the scene

(RR 2, Pg. 152).

      The State's last witness was Mr. Boyd Neighbors. (RR 2, Pg. 154). Mr.

Neighbors testified that his wife woke him early one morning due to the belief that



                                        4
someone was in their game room and the dog was going ballistic. (RR 2, Pg. 156).

Mr. Neighbors went outside and headed to the game room, assuming someone was

in the building. (RR 2, Pg. 157). As Mr. Neighbors reached for the game room

door, he observed somebody on the patio, who had been crouched down to avoid

the dog. (RR 2, Pg. 157). Upon encountering Appellant, Mr. Neighbors called off

the dog and began to ask Appellant questions. (RR 2, Pg. 158) Appellant told

Neighbors that someone was in his building smoking and indicated he had been in

there inside of the building himself. (RR 2, Pg. 159) When Mr. Neighbors

specifically asked Appellant why he was in the building, Appellant responded that

he saw lights in inside the building and then came up to investigate. (RR 2, Pg.

159). Neighbors further testified earlier in the evening there had been a gathering

of people at his game room consuming alcohol, but he could not recall if he drank

any alcohol at that party that night before he went to bed. (RR 2, Pg. 175). Lastly,

Neighbors testified that nothing had been taken from the game. (RR 2, Pg. 177).

      With that, the State rest. (RR 2, Pg. 178). After making a Motion For

Instructed Verdict outside the presence of the jury, which was denied by the Trial

Court, the defense rest. (RR 2, Pg. 187, 194).

      After hearing the argument of counsel, the jury went back to deliberate

regarding guilt and innocence. (RR 2, Pg. 216). The jury returned a guilty verdict

against Appellant. (Clerk's Record Pg. 23 24) (RR 2, Pg. 222). After hearing



                                         5
arguments of counsel, the Trial Court sentenced appellant to serve 2 years in the

State Jail Division of the Texas Department of Criminal Justice, probated for 2

years, with a $2,500.00 fine. (RR 2, Pg. 224).




                                         6
                            Summary of the Argument

      Appellant asserts that the Trial Court committed reversible error in its

refusal to grant Appellant’s request for the inclusion of a lesser-included offense

instruction for the offense of criminal trespass in the jury charge.

      Further, Appellant asserts that the evidence presented by the State of Texas

was insufficient to support a finding of guilt for the felony offense of burglary of a

building.




                                           7
                           Arguments and Authorities

ISSUE ONE:         THE TRIAL COURT COMMITTED ERROR IN
                   DENYING APPELLANT THE LESSER-INCLUDED
                   OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.

      1.    Standard of Review

      The relevant standard for determining whether or not a lesser-included

offense instruction should be included within a jury charge is the two-part

“cognate-pleadings” approach outlined in Hall. Hall v. State, 225 S.W.3d 524,

535-36 (Tex. Crim. App. 2007).

      2.    First Step of Hall Analysis

      Under Hall, the first step is to compare the elements of the offense as alleged

in the charging instrument with the elements of the potential lesser-included

offense, and apply the provisions of Tex. Crim. Proc. Ann. art. 37.09.

      The elements of burglary of a building, as alleged in the indictment, are: (1)

the defendant; (2) on or about May 11, 2014; (3) with the intent to commit theft;

(4) enter a building or a portion of a building; (5) not open to the public; (6)

without the effective consent of the owner. Tex. Pen. Code §30.02.

      The Appellant requested a lesser-included offense of criminal trespass. (CR,

Pg. 31-36; RR 2, Pg. 179-192). The elements of criminal trespass are: (1) the

defendant; (2) without the effective consent of the owner; (3) enters or remains on

the property or in the building of another; (4) intentionally, knowingly, or



                                          8
4




    recklessly; (5) with notice that entry was forbidden. Tex. Pen. Code §30.05.

          Article 37.09 provides that an offense is a lesser-included offense if: (1) it is

    established by proof of the same or less than all the facts required to establish

    commission of the offense charged or (2) it consists of an attempt to commit the

    offense charged or an otherwise included offense. Tex. Crim. Proc. Ann. Art.

    37.09. In this case, there is only one element that is different between the indicted

    offense, and the requested lesser-included offense of criminal trespass.          The

    different element is the requirement of proof of “intent to commit theft” as required

    in the burglary of a building statute.

          In Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975, overruled on

    other grounds by Hall), the Court of Criminal Appeals held that criminal trespass

    was a lesser-included offense of burglary of a building. Although Hall otherwise

    modified the type of test used to determine whether an offense is a lesser-included

    offense, it did not overrule the prior holding of Day, such that criminal trespass

    still remains a lesser-included offense of burglary of a building.

          3.     Second Step of Hall Analysis

          The second part of the cognate-pleadings approach requires this Court to

    determine whether there is evidence that supports giving the instruction to the jury.

    It is undisputed in the evidence presented by the State’s own witnesses that

    Appellant entered into the game room belonging to victim without permission. A



                                              9
police officer, Sheriff’s Deputy and the victim each testified that the Appellant

admitted to being in the game room. The victim testified as well that Appellant did

not have permission to enter the game room. However, each of these witnesses

further testified as to the Appellant’s stated intent when he entered the game room.

Both officers and the victim testified that, while the Appellant admitted entering

the building, that he did so because he had saw a light and had concerns that

someone was inside the building. There is no testimony given at trial to the

contrary. Instead, the testimony at trial is that the Appellant was “real friendly and

cordial,” and had expressed concerns about his neighbor’s property being tampered

with. (RR 2, Pg. 132, 144, 159, 163). Additionally, the investigation established

that there were no signs of forced entry, burglary tools, fingerprints, or DNA. (RR

2, Pg. 138, 152, 163).

      Therefore, there was sufficient evidence that Appellant may have only been

guilty of the lesser charge of criminal trespass. While the Appellant may be

"guilty" of entering into the building without permission, if he had a meritorious

reason for being there, and did not have the intent to commit a theft as alleged,

then he would be guilty only of the lesser charge of criminal trespass. Therefore, it

would be proper under the Hall analysis for the Trial Court to grant the requested

lesser-included instruction.

      4.     Argument and Analysis



                                         10
      First, the evidence in this case clearly supports a possible finding of the

Appellant’s guilt as only to the requested lesser-included offense of criminal

trespass. The evidence sufficiently meets the requirements of the Hall analysis.

Therefore, the trial court erred in denying the requested instruction and this case

should be reversed and remanded for a new trial.

      Second, the harm of the denial of this request is clear on the record in this

case. Not only was the evidence insufficient, as well as non-existent, as to the

Appellant’s alleged intent to commit a theft, the jury in this case clearly had

questions and concerns about the Appellant’s culpability for the indicted offense.

Otherwise, there would be no reason for a jury to request statutes on trespass.

(Jury Note: CR, Pg. 44).

      The jury had to make an assumption that the Appellant intended to commit

theft in order to convict the Appellant of this charge, since there was no evidence

of such intent to commit a theft, only conjecture and speculation. To the contrary,

the uncontroverted evidence is that the Appellant entered in an effort to investigate

a perceived wrong doing that Appellant thought he observed occurring in the

victim’s game room.

      In the event that the jury felt the Appellant had committed wrong doing by

entering the premises without permission, but did not find that Appellant had any

intent to commit theft, the jury could not hold the Appellant responsible for the



                                         11
alleged criminal trespass due to the Trial Court’s denial of the requested instruction

on the lesser included offense. The intent of the jury to find the Appellant guilty of

only the lesser-included offense is best evidenced by the jury’s note when the jury

requested the “relevant statutes of trespassing”.       (Jury Note: CR, Pg. 44).

Specifically, the jury felt the Appellant was on the premises without permission,

but questioned the intent element, as shown through their note. Therefore, to hold

the Appellant responsible for the trespass, they had to assume an element not

proven by the State.

      For the jury to make such an assumption that is to be upheld on appeal, the

jury charge would need to have included language about presumed facts in

accordance with Tex. Crim. Proc. Ann. Art. §2.05. There is no such language

about presumed facts in the jury charge in this case. As it is improper for the jury

to assume facts not in evidence, the Appellant in this case was convicted on

unsubstantiated evidence, which falls short of the required proof beyond a

reasonable doubt for the element of “with the intent to commit a felony, theft or

assault”.

      Therefore, Appellant was convicted of a greater offense solely due to the

Trial Court’s denial of the requested lesser-included offense. Not only did the Trial

Court commit error in its denial of the requested instruction, but the Appellant was

clearly harmed by this error.



                                         12
ISSUE TWO:              THE EVIDENCE WAS BOTH LEGALLY AND
                        FACTUALLY INSUFFICIENT TO ESTABLISH THAT
                        APPELLANT COMMITTED THE ACT OF BURGLARY
                        OF A BUILDING – ENTRY WIH COMMISSION OF
                        THEFT.

         1.      Standard of Review

         The relevant standard for judging the sufficiency of the evidence is outlined

by the Texas Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893 (Tex.

Crim. App. 2010). The Brooks Court adopts the approach outlined in Jackson v.

Virginia1. Specifically, the standard of review requires the appellate court to

review all of the evidence in the light most favorable to the verdict, and then

determine whether or not any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. (Jackson, 443 U.S. 307, 319;

Brooks, 323 S.W. 3d at 899).

         Under this standard of review, the jury is the sole judge of the weight and

credibility of the witness testimony. Brooks, 323 S.W.3d at 894-895. As such, an

appellate court must review the evidence at trial to be certain that the jury reached

a rational verdict, without substituting their own judgment for that of the fact

finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This is the

same standard, whether the evidence is direct or circumstantial evidence. King v.

State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).


1
    Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).

                                                 13
      Appellant asserts, under this standard, that the evidence presented by the

State of Texas at trial was insufficient to establish that he committed the offense of

Burglary of a Building – Entry with the Commission of Theft.

      A person commits the offense of burglary of a building with the intent to

commit theft when someone, with the intent to commit theft, enters a building not

open to the public, without the consent of the owner. Tex. Pen. Code. Ann. §30.02.

      2.     The State’s Evidence Was Insufficient to Prove Appellant
             Committed the Act of Burglary of a Building – Entry with
             Commission of Theft.

      Based upon the evidence presented by the State and the defense in this case,

the evidence is clearly insufficient to support a verdict in this case. The evidence

presented by the State lacks the proof beyond a reasonable doubt necessary to

establish that Appellant committed any theft, or intended to commit a theft. The

only evidence beyond a reasonable doubt regarding the theft element is the

testimony of the victim that nothing was stolen. (RR 2, Pg. 177).

      As far as the intent to commit theft, there is absolutely no evidence that the

Appellant intended to commit theft. Both officers and the victim testified that,

while the Appellant admitted entering the building, that he did so because he had

saw a light and had concerns that someone was inside the building. There is no

testimony given at trial to the contrary. Instead, the testimony at trial is that the

Appellant was “real friendly and cordial,” and had expressed concerns about his



                                         14
neighbor’s property being tampered with.        (RR 2, Pg. 132, 144, 159, 163).

Additionally, the investigation established that there were no signs of forced entry,

burglary tools, fingerprints, or DNA. (RR 2, Pg. 138, 152, 163). Further, the

Appellant was not arrested for being intoxicated or impaired, nor was there any

testimony to that extent by law enforcement.

      There is no evidence that the Appellant is ever observed in the building.

There is no evidence of any theft. The only evidence of any intent to commit theft

is that the Appellant was present at night, in a building, without permission.

However, the Jury Charge in this case did not include an instruction about any

presumed fact in accordance with Tex. Crim. Proc. Ann. Art. §2.05, that would

allow for the jury to assume that nighttime entry without permission is done with

the intent to commit theft. Tex. Crim. Proc. Ann. Art. §2.05. In fact, the Jury

Charge defines “With Intent to Commit a Felony, Theft or an Assault” as “[a]

person intends to commit a felony, theft or an assault when the person has the

conscious objective or desire to commit the felony, theft or assault.” (CR, Pg. 49).

Absent this instruction, the jury cannot find Appellant intended to commit a theft

based upon the evidence presented, absent making an assumption, which is not

allowed under the charge.

      Clearly, the jury had to make an assumption that the Appellant intended to

commit theft in order to convict the Appellant of this charge, since there was no



                                         15
evidence of such intent to commit, only conjecture and speculation. Also, if the

jury felt the Appellant had committed wrong doing by entering a premises without

permission, but without an intent to commit theft, the jury could not hold the

Appellant responsible for the alleged wrong-doing in any other manner, as the

Court did not provide a lesser-included offense of trespassing in the jury charge.

The intent of the jury is best evidenced by the jury’s note when the jury requested

the “relevant statutes of trespassing”. (Jury Note: CR, Pg. 44). Specifically, the

jury felt the Appellant was on the premises without permission, but questioned the

intent element, as shown through their note. Therefore, to hold the Appellant

responsible for the trespass, they had to assume an element not proven by the State.

      Therefore, the evidence presented by the State is wholly insufficient to

support a finding of guilt of the greater offense in this case. No evidence is

provided about the Appellant’s intent to commit a theft, specifically, there is no

evidence outlining or identifying the Appellant’s conscious objectives or desire to

commit a felony or theft or assault. Quite to the contrary, the only evidence as to

his intent is from the State’s witnesses testifying that the Appellant specifically

expressed that his intent was to investigate perceived problems at the victim’s

game room. Absent an instruction in accordance with Tex. Crim. Proc. Ann. Art.

§2.05 that the jury may presume certain facts to be true (i.e. nighttime entry into a

building without permission is per se intent to commit theft absent other evidence),



                                         16
the evidence actually presented by the State at this trial is wholly insufficient to

support a legal verdict of guilt in this case.

      The job of the reviewing court is to determine whether or not the jury

reached a rational verdict based upon the evidence it received and the instructions

it was given in the jury charge. Under these circumstances, the verdict is not

reasonable, nor rational, and is clearly against the weight of the actual evidence

presented at trial, especially in light of the jury charge given to the jury in this case.

                                      Conclusion

      As set forth above, Appellant was convicted by a jury on evidence legally

insufficient to support any conviction in this case. The net result is that the

Appellant now has been convicted of a felony and has been sentenced to serve two

(2) years in the Texas Department of Criminal Justice – State Jail Division, all

based upon insufficient evidence. Additionally, as a result of this insufficient

verdict, Appellant is subjected to two years of monitoring and compliance with the

terms and conditions of community supervision.

      This case should be reversed and rendered due to a lack of evidence to

substantiate guilt in this case as outlined above. In the alternative, this case should

be reversed, and a new trial granted, due to the Trial Court’s failure to properly

instruct the jury in the jury charge about the requested lesser-included offense of

criminal trespass.



                                            17
                                      Prayer

      WHEREFORE, PREMISES CONSIDERED, Appellant requests that this

Appellate Court reverse the jury’s verdict, and remand this case to the Trial Court.

                                       Respectfully submitted,

                                       FIVECOAT & ROGERS, P.L.L.C.
                                       214 W. Texas Ave., Ste. 811
                                       Midland, Texas 79701
                                       (432) 620-8774 (Telephone)
                                       (432) 620-9945 (Facsimile)
                                       ray@fivecoatlaw.com




                                       Raymond K. Fivecoat
                                       State Bar No. 24010024
                                       Attorney for Appellant,
                                       TOMMY JAMES LEWIS

ORAL ARGUMENT NOT REQUESTED

                         CERTIFICATE OF SERVICE

      I hereby certify that, on this the 20th day of April, 2015, a true and correct
copy of the foregoing Brief of the Appellant was forwarded, by first class mail,
postage prepaid, to counsel of record, as follows:

Tim Mason
Andrews County District Attorney
121 NW Ave. A
Andrews, Texas 79714




                                       Raymond K. Fivecoat

                                         18
                     CERTIFICATE OF COMPLIANCE

      I certify that this document was prepared using MS Word and contains 4130
words (counting all parts of the document). The body text of the entire document is
in 14 point font, Times New Roman, and the footnote text is in 12 point font,
Times New Roman. Said document was converted to pdf format for filing using
MS Word.




                                      Raymond K. Fivecoat




                                        19
