                                                                                     PD-1391-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 11/11/2015 11:10:37 PM
                                                                   Accepted 11/12/2015 2:23:33 PM
                                                                                    ABEL ACOSTA
                                                                                            CLERK
                              NO. PD-1391-15
                         COA NO. 11-13-00277-CR


                               IN THE
                 COURT OF CRIMINAL APPEALS OF TEXAS
                           AUSTIN, TEXAS


                               STATE OF TEXAS
                                                                        Appellant,

                                        v.

                       MIKENZIE RENEE RODRIGUEZ
                                                                         Appellee.


 On Petition for Discretionary Review from the Eleventh Court of Appeals in Cause
     No. 11-13-00277-CR from the 35th District Court, Brown County, Texas


      REPLY TO STATE’S PETITION FOR DISCRETIONARY REVIEW


                       ORAL ARGUMENT REQUESTED

                               Matthew G. Wright      &       Sharon Diaz
                               State Bar No. 24049956         24050005
                               PO Box 522
                               Rosebud, Texas 76570
November 12, 2015
                               (254) 709-3564 Telephone
                               (877) 455-1229 Fax
                               matthew@dlwhelp.com

                    ATTORNEYS FOR MIKENZIE RENEE RODRIGUEZ




                                        1
             STATEMENT REGARDING ORAL ARGUMENT

      The Appellee requests oral arguments. Although, the Appellee believes oral

arguments are not necessary given the current precedent regarding warrantless

searches of residences without consent or exigent circumstances, the Appellee

requests oral arguments to address the Appellant’s arguments.




                                        i
                   IDENTIFICATION OF THE PARTIES


Appellant:                                    State of Texas

Appellee:                                     Mikenzie Renee Rodriguez

Appellant’s Counsel (Trial and Appeal): Elisha Bird,
                                        Assistant District Attorney
                                        35th Judicial District Attorney’s
                                        Office, 200 S. Broadway
                                        Brownwood, Texas 76801

                                              Michael B. Murray,
                                              District Attorney
                                              35th Judicial District Attorney’s
                                              Office, 200 S. Broadway
                                              Brownwood, Texas 76801

Appellee’s Counsel (Trial and Appeal):        Matthew G. Wright and
                                              Sharon L. Diaz,
                                              PO Box XXXXX
                                              Rosebud, Texas 76570
                                              (254) 583 -0009
                                              matthew@dlwhelp.com

Trial Judge:                                  Honorable Stephen Ellis
                                              District Judge
                                              35th Judicial District




                                         ii
                            TABLE OF CONTENTS

Index of Authorities………………………………………………………………..iv

Statement of the Case……………………………………………………………...vi

Statement of Procedural History of the Case……………………………………...vi

Summary of the Argument…………………………………………………………1

ISSUE 1: The Eleventh Court of Appeals properly applied the Abuse of Discretion
standard of Review and considered the trial court’s findings of fact and
conclusions of law. The State’s contention that the appellate court conduct a trial
de novo is improper. …………………………………………….............................2

      A. The Eleventh Court of Appeals applied the correct standard of
         review…………………………………………………………………….3

      B. The Eleventh Court of Appeals did examine the totality of the
         circumstances and held that the trial court did not abuse discretion
         concerning the issue of consent…………………………………………..6


ISSUE 2: The Court of Appeals properly applied the protections of the Fourth
Amendment when the State Failed to prove consent, existence or a warrant, or the
presence of exigent circumstances…………………………………………………8

ISSUE 3: Petition for Discretionary Review should be refused because there is no
conflict of law or interpretation created by the opinion of the Eleventh Court of
Appeals…...……………………………………………………………………….10

Prayer ……………………………………………………………………………..14




                                        iii
                              INDEX OF AUTHORITIES

Constitutions, Statutes, and Rulings

U.S. Const. amend. IV……………………………………………………... passim

Tex. Const. art. I, § 9……………………………………………………..…passim

TEX. CRIM. PROC. CODE ANN. § 38.23(a) (West 2012)…………..…5, passim

Cases

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)……………………………10

Degrate v. State, 712 S.W.2d 755, 756–57 (Tex. Crim. App. 1986)………….…..13

Grubbs v. State, 177 S.W.3d 313
     (Tex. App. – Houston [1st Dist.] 2005)….......................................5, 10, 11, 12

Harrison v. State, 205 S.W.3d 549 (Tex. Cim. App. 2006) ………………..........….3

Hubert v. State, 286 S.W.3d 484 (2009)…………………………………………….7

Hunter v. State, 954 S.W.2d 767, 768 (Tex. Crim. App. 1995) (en banc)…………13

Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987)………………………...4

Medlock v. Trustees of Indiana Univ., No. 1:11-CR-00977-TWP-DKL, 2011 WL
4068453 (S.D. Ind. 2011)………………………………………………………..8, 10

Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App. 1985)……………………...…...7

Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971)…………………………..……..8

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)……………………………….….7

Spring v. State, 626 S.W.2d 37, 41 (Tex. Crim. App. [Panel Op.] 1981)……………9


                                               iv
State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999)………………………...4

State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006)…………………………..10

State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008)……………......3, 4

State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997)………………………….7

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006)…………………………...3

State v. Rodriguez, 2015 WL 5714548, ___ S.W.3d ____
       (Tex. App. –Eastland 2015) …………………………………………1, passim

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)……………………….…4, 6


United States v. York, 895 F.2d 1026 (5th Cir. 1990)……………………………….7

Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010)…………………..9




                                     v
                         STATEMENT OF THE CASE

Appellee was arrested by Brownwood Police Department for Possession of a

Controlled Substance following a search conducted by members licensed police

officers. The search was conducted inside of the Appellee’s residence, a university

dormitory room.


     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellee was indicted for Possession of a Controlled Substance and filed a

motion to suppress. After hearing, the trial judge granted Appellee’s motion.


      The Eleventh Court of Appeals affirmed the trial court’s ruling on

September 24, 2015. A motion for rehearing was not filed. The State’s Petition

for Discretionary Review was filed on October 26, 2015. The Appellee’s reply is

due on November 12, 2015.




                                         vi
                       SUMMARY OF THE ARGUMENT

      Appellee respectfully requests that this Court deny the State’s Petition for

Discretionary review because the Eleventh Court of Appeals decision is correct and

should be affirmed. See State v. Rodriguez, No. 11-13-00277-CR, 2015 WL

5714548, at *1 (Tex. App.—Eastland Sept. 24, 2015, pet. filed). The Eleventh Court

Of Appeals’ rightfully applied the proper standard of review and concluded that the

trial court did not abuse its discretion and at one point opined that the “State’s

contention…is not logical,” See Rodriguez, 2015 WL 5714548, at *9.

      In the first issue raised, the State argues that the Eleventh Court of Appeals

should consider the totality of the circumstances instead of applying abuse of

discretion as a standard of review.

      Next, the State argues that a test must be created to balance the interest of a

university to provide a safe environment against the interest of the State as the Fourth

Amendment. A sufficient balancing test already exists to address this interest and a

change is not necessary.

      Finally, the State argues that the Court of Appeals erred in categorically ruling

that the plain view doctrine did not apply. We contend, that the State’s own

witnesses testified that the plain view doctrine did not apply and the trial court agreed


                                           1
that the plain view doctrine did not apply; thus the Eleventh Court of Appeals found

no abuse of discretion.

      The State’s three grounds for review are meritless and only function as an

improper means to reargue issues that have already been properly decided.

                                   ARGUMENT

ISSUE 1: THE ELEVENTH COURT OF APPEALS PROPERLY APPLIED
THE ABUSE OF DISCRETION STANDARD OF REVIEW AND
CONSIDERED THE TRIAL COURT’S FINDINGS OF FACT AND
CONCLUSIONS OF LAW. THE STATE’S CONTENTION THAT THE
APPELLATE COURT CONDUCT A TRIAL DE NOVO IS IMPROPER.

      The Eleventh Court of Appeals correctly affirmed the trial court’s grant of

Appellee’s pretrial motion to suppress. Specifically, the Eleventh Court of Appeals

applied the proper standard of review and law to the facts of this case. The State

incorrectly argues that the Eleventh Court of Appeals erred in its decision because

it relied on general principles of privacy, and did not review how the totality of

circumstances may have lessened Appellee’s expectation of privacy. See

Appellant’s Brief, at *10. But, the State’s contentions are incorrect for three

reasons (1) the Eleventh Court of Appeals applied the correct standard of review;

(2) the Eleventh Court of Appeals did examine the totality of the circumstances in

the context of consent, and (3) the State was incorrect in its argument that Eleventh

Court of Appeals’ decision conflicts with decisions from the Court of Criminal

Appeals or the United States Supreme Court.


                                           2
   A. The Eleventh Court of Appeals applied the correct standard of review.

      The Eleventh Court of Appeals properly applied the abuse of discretion

standard of review to the trial court’s decision. It would have been improper to apply

a trial court’s totality of the circumstances test, as suggested by the State, in an

appeal. See Appellant’s Brief, at *10, 14. The State is claiming the Court of Appeals

erred by not conducting a trial de novo.

      It is significant to point out to this Court that the trial court made explicit

findings of fact and conclusions of law with respect to its grant of Appellee’s motion

to suppress. Whenever the trial court's ruling on a motion to suppress is supported

by findings of fact, the appellate court properly reviews the evidence in a light most

favorable to the trial court's ruling to determine whether the evidence supports the

fact findings, then conducts a review of the trial court's legal rulings. State v. Kelly,

204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the voluntariness of the consent is

challenged at trial, the State has the burden to prove by clear and convincing

evidence that any consent to search was given freely and voluntarily. Harrison v.

State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006). These points are vital to this

Court's review of the State's petition for discretionary review.

      In reviewing a trial court's ruling on a motion to suppress, appellate courts

must view all of the evidence in the light most favorable to the trial court's ruling.

See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial


                                           3
court is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999). Accordingly, the judge may believe or disbelieve all or any part

of a witness's testimony, even if that testimony is not controverted. See Mattias v.

State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). This same highly deferential

standard applies regardless of whether the trial court has granted or denied a motion

to suppress evidence. State v. Ross, 32 S.W.3d 853, 854–55 (Tex. Crim. App. 2000).

(applying “almost total deference” to trial court's implied factual findings and

assessment of credibility and demeanor when it granted the motion to suppress).

Thus, the party who prevailed in the trial court is afforded the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from that

evidence. Garcia-Cantu, 253 S.W.3d at 241.

      The State's argument distorts the appropriate standards of review, and actually

ignores much of the Eleventh Court of Appeals analysis. The State seems to want

this Court to grant a petition for discretionary review based upon conjecture and

implication of consent through a contract that allows for administrative inspections.

The legal standard to establish consent under these circumstances is by clear and

convincing evidence and this burden is on the State. In other words, if there is a close

call regarding whether consent was or was not voluntarily given, appellate courts are

required to resolve this issue in favor of the Defendant. The State failed to meet their


                                           4
burden of proving consent and the evidence introduced by the State demonstrates

that consent was physically impossible.          A search for criminal investigative

purposes by any other name is still circumscribed by the Fourth Amendment. Such

a search, as in the instant case, which seeks to gather evidence for purposes of

prosecution, falls squarely within the purview of the Constitutional protection and

must be subject to the exclusionary rule. Tex. Criminal Proc. Code Ann. §§38.23(a).

      A university official—under a valid and consensual contract signed by the

student—may rightfully enter and search a dorm room in order to maintain school

policy. See generally Grubbs v. State, 177 S.W.3d 313, 319–20 (Tex. App.- Houston

[1st Dist.] 2005) (explaining that a college student’s dorm contract gave “ample

authority for the Resident Assistant's entry” in order to “fulfill [his] daily duties. . .

or in cases of reasonable suspicion of activity endangering the individual or the

community.”). The policies must be for health and safety purposes and will only be

upheld as to the enforcement of specific campus rules by university officials. The

policies cannot be used for law enforcement purposes.               Grubbs thoroughly

discusses that campus police may conduct university health and safety checks, but

if their checks appear to have a law enforcement purpose and go further than

enforcement of the terms of the residence contract, Texas courts will require them

to obtain a valid search warrant, have exigent circumstances, or have the express

consent of the targeted student at the time of the search. See generally Grubbs, 177


                                            5
S.W.3d 313. This point seems lost on the State in its petition. Significantly, the trial

court found that there was no consent to enter Appellee’s dorm room nor were there

any exigent circumstances. Absent one or the other, the Court rightly concluded that

all evidence was obtained illegally.


      Furthermore, the State has failed to form its arguments under the appropriate

standard of review, and is asking the Court of Criminal Appeals to require appellate

courts to conduct trial de novo on appeals. The trial court's findings of fact and

conclusions on mixed questions of law and fact depending on witness demeanor and

credibility are to be given deference on appeal. See Ross, 32 S.W.3d at 854–55.

Moreover, the State failed to explain the application of that standard to expressly

made findings of fact. Therefore, this Court should refuse the State’s first issue for

review.

   B. The Eleventh Court of Appeals did examine the totality of the
      circumstances and held that the trial court did not abuse discretion
      concerning the issue of consent.

      Contrary to the State’s argument, the Eleventh Court of Appeals did evaluate

the apparent consent issue under the totality of the circumstances. See Rodriguez,

2015 WL 5714548, at *11. Specifically, the Eleventh Court of Appeals reasoned that

the totality of the circumstances should be examined in a determination of

reasonableness for an officer to rely on the consent of another individual. Id.



                                           6
       An exception to the warrant requirement is a search conducted pursuant to

consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Under the Texas

Constitution, the State must prove by clear and convincing evidence that the consent

to search was freely given. See State v. Ibarra, 953 S.W.2d 242, 244–45 n.1 (Tex.

Crim. App. 1997) (en banc). Whether the consent to search was in fact voluntary is

to be determined from the “totality of the circumstances.” Meeks v. State, 692

S.W.2d 504, 510 (Tex. Crim. App. 1985) (en banc)). Furthermore, a third party may

consent to a search of another’s property if the third party has actual authority over

the thing being searched. See Rodriguez, 2015 WL 5714548, at *11 (citing Hubert

v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 1985)).


      Here, the Eleventh Court of Appeals did “examine the totality of the

circumstances to determine whether it is reasonable under the Fourth Amendment

for an officer to rely on the consent of another person to justify a warrantless search.”

Id. On the contrary, the State incorrectly relies on United States v. York, contending,

“Activities or circumstances within a dwelling may lessen an owner’s reasonable

expectation of privacy by creating a risk of intrusion which is ‘reasonably

foreseeable’.” See Appellant’s Brief, at *10 (citing United States v. York, 895 F.2d

1026, 1029 (5th Cir. 1990). But, this reliance is misguided because a warrant was

obtained in York. See York, 895 F.2d at 1027–29. Emphasis added


      Finally, the State argues that a determination of whether any Fourth
                                           7
Amendment protection exists must first be made before concluding that a search

occurred. Regardless of order, the Eleventh Court of Appeals found that a search did

occur and that “a student who occupies a college dormitory room enjoys the

protection of the Fourth Amendment.” Rodriguez, 2015 WL 5714548, at *11–12

(citing Piazzola v. Watkins, 442 F.2d 284, 289–90 (5th Cir. 1971)). Also, the

Eleventh Court of Appeals correctly distinguished the decision in Medlock v.

Trustees of Indiana University from this Case. See Rodriguez, 2015 WL 5714548,

at *9–10 (citing Medlock, No.1:11-CV-00977-TWP-DKL, 2011 WL 4068453, at

*1–5 (S.D. Ind. Sept. 13, 2011). The Eleventh Court of Appeals correctly reasoned

that Medlock was unlike this Case because it involved an administrative proceeding

where the officer obtained a warrant after observing criminal activity in plain view.

Id. Emphasis added.


      Therefore, this Court should refuse the State’s first issue for review because

the Eleventh Court of Appeals applied the correct standard of review as well as

relevant law in its decision.

ISSUE 2: THE COURT OF APPEALS PROPERLY APPLIED THE
PROTECTIONS OF THE FOURTH AMENDMENT WHEN THE STATE
FAILED TO PROVE CONSENT, EXISTANCE OF A WARRANT, OR THE
PRESENCE OF EXIGENT CIRCUMSTANCES.

      The Eleventh Court of Appeals correctly affirmed the trial court’s grant of

Appellee’s pretrial motion to suppress, because Appellee’s dorm room is protected


                                         8
under the Fourth Amendment and exigent circumstances did not exist to justify the

warrantless search of Appellee’s dorm room. The State incorrectly attempts to

characterize the warrantless search of Appellee’s dorm room as a “minimal

intrusion” that should be balanced against Appellee’s Fourth Amendment rights

when determining the reasonableness of a search. See Appellant’s Brief, at *7.


      We agree with the State’s contention “the application of the Fourth

Amendment to searches of dormitories is an important question of both state and

federal law,” but we disagree with the State’s argument that this question has not

been settled by this Court. See Appellant’s Brief, at *15. The Eleventh Court of

Appeals correctly reasoned that the entry into a residence by police officers is a

search for purposes of the Fourth Amendment. See Rodriguez, 2015 WL 5714548,

at *8 (citing Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010).

Furthermore, the Eleventh Court of Appeals correctly relied on this Court’s opinion

in Spring v. State, which notes that tenants’ homes should not be secure under the

Fourth Amendment only under the discretion of their landlord. Id. (citing 626

S.W.2d 37, 41 (Tex. Crim. App. [Panel Op.] 1981).

      Furthermore, the State conceded the issue of whether the Fourth Amendment

protected Appellee’s dorm room. See Appellant’s Brief at*9, Rodriguez, 2015 WL

5714548 (“When analyzing the issue of whether a college student has a legitimate

expectation of privacy in a dorm room, clearly the answer is generally yes.”). The

                                         9
State argues that this is a unique ruling. It is not. It is significant to point out that

the State relies on Medlock, which like Grubbs, actually supports the Appellee’s

argument that the university has a right to conduct health and safety checks but a search

with prosecutorial intent still invokes Fourth Amendment protections. Grubbs, 177

S.W.3d 313. Furthermore, the line between Administrative searches and Law

Enforcement Searches has long been established, whether in a dorm, a home, a

business, or in other properties. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.

App. 2006); Crain v. State, 315 S.W.3d 43, 48–49 (Tex. Crim. App. 2010).

      Neither the Appellee, the trial court, Eleventh Court of Appeals, nor case law

disagrees with the balancing test. The precedent and agreement of the various courts,

hold that the balance is achieved by ensuring law enforcement obtains consent,

obtains or a warrant, or can articulate the presence of exigent circumstances. During

the suppression hearing, the State failed to produce testimony or evidence that

voluntary consent by Appellee or the roommate was obtained in any form: verbal or

written. (R.R. Vol. p. 43, 53). The trial court heard testimony from the State’s own

witnesses stating that there were no exigent circumstances and the items were not in

plain view. (R.R. VOL. 2, p. 43, 54-55) Neither the trial court, nor the Eleventh

Court of Appeals erred when applying the Fourth Amendment, therefore, this Court

should refuse the State’s second issue for review.

ISSUE 3: PETITION FOR DISCRETIONARY REVIEW SHOULD BE
REFUSED BECAUSE THERE IS NO CONFLICT OF LAW OR
                                           10
INTERPRETATION CREATED BY THE OPINION OF THE ELVENTH
COURT OF APPEALS.

      The State postulates that this Court should grant its petition for Discretionary

review because of a perceived conflict between the Eleventh Court of Appeals

decision and the Grubbs decision from the First Court of Appeals. This Court should

reject the States argument for three reasons: (1) the Eleventh Court of Appeals

decision does not conflict with Grubbs; (2) the State incorrectly requests this Court

to substitute its judgment for the Eleventh Court of Appeals; (3) the Courts of

Appeals are free to adopt their own interpretation of relevant statutory and case law.


      First, the Eleventh Court of Appeals decision does not conflict with the

decision in Grubbs. The Eleventh Court of Appeals decision and the decision in

Grubbs agree on the important principle “that a student had an expectation of privacy

in his dorm room and is thus afforded Fourth Amendment protection. Compare

Grubbs, 177 S.W.3d at 318, with Rodriguez, 2015 WL 5714548, at *8. The Eleventh

Court of Appeals correctly distinguished the present case from the facts of Grubbs

v. State, noting that Grubbs did not explore the concept of a resident assistant or

administrative personal giving consent to officers to search a dormitory room. See

Rodriguez, 2015 WL 5714548, at *11–12. Rather, the residents themselves gave

officers consent to search in Grubbs. See Rodriguez, 2015 WL 5714548, at *11

(citing Grubbs v. State, 177 S.W.3d 313, 321 n.1 (Tex. App.—Houston [1st Dist.]


                                         11
2005, pet. ref’d)). The Eleventh Court of Appeals correctly reasoned “[d]espite the

authority given to the dorm personnel to enter the dorm room themselves, they

simply did not have authority to give police officers consent to enter Appellee’s

dorm room.” See Rodriguez, 2015 WL 5714548, at *11. It is significant to note,

that not only did they lack the authority to give consent to search but the State never

provided evidence or testimony that the dorm personnel gave consent. The State’s

own witness testified that they never asked for consent from the dorm personnel, the

roommate, nor the Appellee. (R.R. VOL. 2, 71)


      Second the State erroneously requests this Court to substitute its judgment for

that of the Eleventh Court of Appeals because it believes that the Eleventh Court of

Appeals' decision in this case will leave the bench and bar in a state of bewilderment

and confusion. As stated above, the First and Eleventh are in agreement that a

University has the right to conduct health and safety inspections, and that law

enforcement must obtain consent, obtain a warrant, or articulate the presence of

exigent circumstances. See Grubbs, 177 S.W.3d at 318, and Rodriguez, 2015 WL

5714548, at *8 There is no confusion because the law is well settled that there are

specific exceptions to the warrant requirement and none of those exceptions existed

in the instant case. The State seeks to create new law rather than follow the

established principles already in place.


      Moreover, the State’s request should be denied because a Petition for
                                           12
Discretionary Review should not be granted merely because a party disagrees with

the holding of an appeals court. See Degrate v. State, 712 S.W.2d 755, 756–57 (Tex.

Crim. App. 1986). The Court in Degrate established that it should reserve its

discretionary prerogative for the most part, to dispel confusion generated in the past

by its own case law; to reconcile settled differences between the various courts of

appeals; and to promote the fair administration of justice by trial and appellate courts

throughout the state. Id.


      Second, the State’s argument ignores the fact that each of the Courts of

Appeals of Texas are free to adopt their own interpretation of the relevant statutory

and case law. In cases where the lower court has applied the correct standard and

made proper analysis, the Court of Criminal Appeals has been loath to accept

Petition for Discretionary Review to substitute its judgment for that of the appeals

courts. Hunter v. State, 954 S.W.2d 767, 768 (Tex. Crim. App. 1995) (en banc).

      Because there is little confusion as to the difference between administrative

health and safety searches compared to searches by law enforcement and the

requirement of law enforcement to obtain consent, a warrant, or articulate the

presence of exigent circumstances, this Court should refuse the State’s third issue

for review.




                                          13
                                  PRAYER

      Appellee requests that the State’s Petition for Discretionary Review be

refused, or, that on hearing, the decision of the Eleventh Court of Appeals be

affirmed.



      Respectfully Submitted,



                                                ________________________
                                                Matthew G. Wright
                                                State Bar No. 24049956
                                                Sharon L. Diaz
                                                State Bar No. 24050005
                                                PO Box 522
                                                Rosebud, Texas 76570
                                                (254) 583-0009 Telephone
                                                (877) 455-1229
                                                matthew@diazwright.com




                                      14
                      CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 3,220 words, based upon the representation provided by the word

processing program that was used to create the document.


                                                    ________________________
                                                    Matthew G. Wright
                                                    Attorney for the Appellee



                         CERTIFICATE OF SERVICE

      The undersigned certifies that a true and correct copy of the foregoing Reply

to the State’s Petition for Discretionary Review as mailed by U.S. Mail to the State

Prosecuting Attorney, Lisa McMinn, P.O. Box 12405, Austin, Texas 78711, on the

12th day of November 2015.


      The undersigned certifies that a true and correct copy of the foregoing Reply

to the State’s Petition for Discretionary Review as mailed by U.S. Mail to Michael

B. Murray, 35th District Attorney, 200 S. Broadway, Suite 323, Brownwood, Texas

76801 on the 12th day of November 2015.



                                                    ________________________
                                                    Matthew G. Wright
                                                    Attorney for the Appellee

                                         15
