                                                                                      ACCEPTED
                                                                                  05-14-01460-CR
                                                                       FIFTH COURT OF APPEALS
                                                                                  DALLAS, TEXAS
                                                                             6/1/2015 11:17:29 AM
                                                                                       LISA MATZ
                                                                                           CLERK




                                                                                                         5th Court of Appeals
                                                                                                          FILED: 6/4/2015
                                                                                      Lisa Matz, Clerk
                       The State Requests Oral Argument Only If Appellant Argues

                         No. 05-14-01460-CR             FILED IN -
                                              5th COURT OF--APPEALS
                                                                       - ----
                                                  DALLAS,            -
                                                                  ---TEXAS
                   IN THE COURT OF APPEALS                - - ---- MH ------
                                              6/1/2015- 11:17:29
                                                        -      ID        -- AM
                                                  ---- VO ------
                FOR THE FIFTH DISTRICT OF TEXAS LISA----MATZ      -
                                                            -
                                                           -Clerk
                           AT DALLAS                 - - -




                       GUADALUPE MARTINEZ,
                                                               RECEIVED IN
                            Appellant                     5th COURT OF APPEALS
                                                              DALLAS, TEXAS
                                                          6/1/2015 11:17:29 AM
                                    vs.
                                                                LISA MATZ
                                                                  Clerk
                        THE STATE OF TEXAS,
                              Appellee


    On appeal from the 283rd Judicial District Court of Dallas County
                       In Cause No. F06-68467


                            STATE’S BRIEF



                                     Counsel of Record:

SUSAN HAWK                           PATRICIA POPPOFF NOBLE
CRIMINAL DISTRICT ATTORNEY           ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                 STATE BAR NO. 15051250
                                     FRANK CROWLEY COURTS BLDG
                                     133 N. RIVERFRONT BLVD,LB-19
                                     DALLAS, TEXAS 75207-4399
                                     (214) 653-3634
                                     pnoble@dallascounty.org

                    Attorneys for the State of Texas
                           TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT…………………………………………………………1

ARGUMENT…………………………………………………………………………….1

RESPONSE TO POINT ONE…………………………………………………………1
     The trial court did not err by denying the motion to dismiss the
 indictment on the ground that Appellant’s rights under Article III of the
        Interstate Agreement on Detainers Act had been violated.

RESPONSE TO POINT TWO…………………………………………………………1
     The trial court did not err by denying the motion to dismiss the
 indictment on the ground that Appellant’s rights under Article IV of the
        Interstate Agreement on Detainers Act had been violated.

RESPONSE TO POINT THREE…………………………………………………….23
     The evidence is sufficient to sustain Appellant’s conviction.

RESPONSES TO POINT 4…………………………………………………………..32
 Appellant failed to file a plea to jurisdiction in the 283rd Judicial District
                 Court, and he waived Point 4’s complaint.

    The 283rd District Court which tried Appellant’s cases did not lack
          jurisdiction due to an improper transfer to its docket.

PRAYER…………………………………………………………………………………35

CERTIFICATE OF SERVICE AND WORD COUNT…………………………….36




                                       ii
                                   INDEX OF AUTHORITIES

Cases

Alabama v. Bozeman,
  533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed. 2d 188 (2001) ............................. 8

Bell v. State,
  768 S.W.2d 790 (Tex. App. – Houston [14th Dist.] 1989, pet. ref’d) ....... 20

Bourque v. State,
  156 S.W.3d 675 (Tex. App. – Dallas 2005, pet. ref’d) .................................. 35

Bryant v. State,
  819 S.W.2d 927 (Tex. App. – Houston [14th Dist.] 1991, pet. ref’d) ....... 15

Camp v. United States,
 587 F.2d 397 (8th Cir.1978) .................................................................................. 20

Cooney v. Fulcomer,
  886 F.2d 41 (3d Cir. 1989) .................................................................................. 20

Cuyler v. Adams,
 449 U.S. 433, 101 S. Ct. 703, 66 L.Ed.2d 641 (1981) .................................. 8

Dallas County Dist. Attorney v. Doe,
 969 S.W.2d 537 (Tex. App. – Dallas 1998, no pet.) ..................................... 34

Dewberry v. State,
 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 28, 29, 30

Ex parte Edone,
  740 S.W.2d 446 (Tex. Crim. App. 1987) ......................................................... 34

Ex parte Saylor,
  734 S.W.2d 55 (Tex. App. – Houston [1st Dist.] 1987, no pet.) ................ 19

Gray v. Benson,
  608 F.2d 825 (10th Cir. 1979) ............................................................................. 20

Gullatt v. State,
  Nos. 05-13-01515-CR & 05-13-01516-CR, 2014 Tex. App. LEXIS
 13832 (Tex. App. – Dallas Dec. 29, 2014, no pet.) (mem. op., not
 designated for publication) ................................................................................... 33

                                                        iii
Huffines v. State,
 646 S.W.2d 612 (Tex. App. – Dallas 1983, pet. ref’d) .................................. 18

Hultin v. State,
 351 S.W.2d 248 (Tex. Crim. App. 1961) .......................................................... 34

In re Lopez,
  No. 13-11-00110-CR, 2011 Tex. App. LEXIS 1811 (Tex. App. – Corpus
  Christi Mar. 9, 2011, no pet.) (mem. op., not designated for
  publication) ................................................................................................................ 11

Ives v. State,
  Nos. 05-13-00615-CR & 05-13-00616-CR, 2014 Tex. App. LEXIS 3749
  (Tex. App. – Dallas Mar. 31, 2014,no pet.) (mem. op., not designated for
  publication) ................................................................................................................ 33

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ................................. 28

Johnson v. State,
  176 S.W.3d 74 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) ............. 31

Laster v. State,
  275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................................... 28

Lemasurier v. State,
  91 S.W.3d 897 (Tex. App.- Fort Worth 2002, pet. ref’d) ............................. 33

Lindley v. State,
  33 S.W.3d 926 (Tex. App. – Amarillo 2000, pet. ref’d) .................................. 8

Marshall v. State,
 210 S.W.3d 618 (Tex. Crim. App. 2006) .................................................... 29, 30

Mayes v. State,
  Nos. 03-10-00101-CR & 03-10-00102-CR, 2011 Tex. App. LEXIS 2075
 (Tex. App. – Austin Mar. 18, 2011, no pet.)(mem. op., not designated
 for publication) ......................................................................................................... 31

McNulty v. State,
 No. 05-02-00635-CR, 2003 Tex. App. LEXIS 1802 (Tex. App. – Dallas
 Feb. 28, 2003, no pet.) (not designated for publication) ............................ 11

Moreno v. State,
 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) ................................................ 28
                                                               iv
Morganfield v. State,
 919 S.W.2d 731 (Tex. App. – San Antonio 1996, no pet.).......................... 17

New York v. Hill.
  528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ........... 20, 21, 22, 33

Petrick v. State, 832 S.W.2d 767 (Tex. App. – Houston [1st Dist.] 1992,
  pet. ref’d), overruled in part as stated on other ground, Blackshear v.
  State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) .................................... 21

Rexroad v. State,
  Nos. 05-99-01991-CR & 05-99-02004-CR, 2000 Tex. App. LEXIS 7231
  (Tex. App. – Dallas Oct. 26, 2000, pet. ref’d) (not designated for
  publication) ................................................................................................................ 21

Santos v. State,
  116 S.W.3d 447 (Tex. App. – Houston [14th Dist.] 2003, pet. ref’d) ....... 31

Smith v. Hooey,
  393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) ............................ 12, 13

Snyder v. State,
  No. 08-04-00246-CR, 2005 Tex. App. LEXIS 7750 (Tex. App. – El Paso
  Sept. 22, 2005, no pet.) (not designated for publication) ........................... 16

State v. Powell,
   971 S.W.2d 577 (Tex. App. – Dallas 1998, no pet.) .................................... 21

State v. Votta,
   299 S.W.3d 130 (Tex. Crim. App. 2009) ..................................................... 8, 14

United States v. Black,
 609 F.2d 1330 (9th Cir. 1979) .............................................................................. 20

United States v. Olano,
  507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ........................... 20

United States v. Scallion,
 548 F.2d 1168 (5th Cir. 1977) .............................................................................. 20

Statutes

Tex. Code Crim. Proc. Ann. Art. 51.14 (West 2006) ............................ 2, 8, 9, 11

Tex. Code Crim. Proc. Ann. art. 51.14, Art. III(a), (c) ............................... passim
                                                                v
Tex. Code Crim. Proc. Ann. art. 51.14, Art. IV(c) ............................ 17, 18, 21, 23

Tex. Code Crim. Proc. Ann. arts. 20.09, 20.19 (West 2005) ......................... 34

Tex. Code Crim. Proc. Ann., art. 51.14, Art. III(b) ............................................ 15

Tex. Gov’t Code Ann. §74.093 (West 2013) ......................................................... 34




                                                 vi
TO THE HONORABLE COURT OF APPEALS:

     The State of Texas submits this brief in reply to the brief of

Appellant.

                     SUMMARY OF ARGUMENT

     Appellant failed to demonstrate that his rights under Articles

III and IV of the Interstate Agreement on Detainers Act were

violated.    Thus, the trial court did not abuse its discretion by

overruling the motion to dismiss the indictment.     Based on the

eyewitness testimony and other circumstances surrounding the

offense, the jury had sufficient credible evidence to support the

conclusion that Appellant was correctly identified as the person

who committed the offense. The trial court had jurisdiction of the

instant case.

                            ARGUMENT

                   RESPONSE TO POINT ONE
The trial court did not err by denying the motion to dismiss
the indictment on the ground that Appellant’s rights under
Article III of the Interstate Agreement on Detainers Act had
been violated.
                   RESPONSE TO POINT TWO
The trial court did not err by denying the motion to dismiss
the indictment on the ground that Appellant’s rights under
Article IV of the Interstate Agreement on Detainers Act had
been violated.


                                 1
Appellant’s Contentions

     In two related points, Appellant contends that the indictment

in the present case should have been dismissed because of the

State’s failure to follow Articles III and IV of the Interstate

Agreement on Detainers Act (hereinafter IADA) found in Tex. Code

Crim. Proc. Ann. Art. 51.14 (West 2006).        Appellant’s   first point

alleges that upon his mailing a request for a speedy trial, the State

failed to bring him to trial within 180 days, as required under

Article III of the IADA, and, therefore, the trial court erred by failing

to dismiss the indictment. Appellant’s brief at 33-36. In his second

point, Appellant contends that the trial court erred by failing to

dismiss his indictment under Article IV of the IADA upon his

showing that the State failed to bring him to trial within 120 days of

his transfer from Oklahoma to the Dallas County jail. Appellant’s

brief at 36-39.

Pertinent Facts

     On September 12, 2006, Appellant was indicted in Cause

Numbers     F06-68467      and    F06-68468     for   committing     two

aggravated robberies with a deadly weapon against two women in

Dallas County, Texas on July 20, 2006. (CR: 10-11).

                                   2
     On July 22, 2009, Dallas County Sheriff Lupe Valdez informed

a Lawton Oklahoma correctional center that she had been advised

that Appellant was incarcerated there and she requested that a

detainer be placed against Appellant, who had been indicted in two

causes for aggravated robbery with a deadly weapon in Dallas,

Texas. See Defendant’s Exhibit 2 at RR4: 21.

     On April 23, 2013, Appellant, representing himself, mailed a

letter addressed to the “Clerk of the Court” at the Frank Crowley

Courts Building in Dallas, Texas informing the clerk that there was

an outstanding warrant for his arrest for two aggravated robberies

in Dallas County. Three copies of a motion “for a speedy trial/or

dismissal of charges” were attached to his letter.        Appellant

requested that the clerk return to Appellant a stamped copy

showing that his motion was filed in a court. Appellant addressed

the motion to the “District Court of Dallas County State of Texas.”

The motion states that Appellant is incarcerated in a facility in

McAlester, Oklahoma.     It states that he is the subject of an

outstanding arrest warrant in Dallas County.   The motion requests

“a fast and speedy trial in accordance with Article I, Section 10 of

the Texas Constitution,” or in the alternative, to order that the

                                 3
charges pending in the Dallas County cases “be dismissed and the

detainer warrent [sic] be withdrawn,” citing Smith v. Hooey, 393

U.S. 374. See Defendant’s Exhibit 2 at RR4: 21.

     On December 3, 2013, Assistant District Attorney Christopher

Pryor, who tried this case, filed a “request for temporary custody”

informing the warden at the Oklahoma correctional facility where

Appellant was incarcerated that he was charged by indictment with

aggravated robbery and requesting that Pryor be given temporary

custody of Appellant under the IADA until he is tried in that cause.

The request is signed by Judge Rick Magnis who presided over the

trial in the 283rd Judicial District Court. See Defendant’s Exhibit 1

at RR4: 20.

     On March 7, 2014, Appellant was transferred to the Dallas

County Jail. See Defendant’s Exhibit 1 at RR4: 20.

     On March 10, 2014, the Honorable Rick Magnis, presiding

judge of the 283rd Judicial District Court having jurisdiction of the

pending aggravated robbery cases for which Appellant was indicted,

appointed Mr. L. Patrick Davis to represent Appellant. See Motion to

Supplement Clerk’s Record.



                                  4
      On March 28, 2014, Mr. Davis signed an agreement to reset

the two aggravated robbery cases to April 4, 2014.        Thereafter,

Davis signed 5 additional reset agreements which pushed back the

final trial date to June 6, 2014. See Defendant’s Exhibit 3 at RR4:

22.

      On June 9, 2014, Judge Rick Magnis appointed Mr. Allan

Fishburn to represent Appellant in the aggravated robbery cases.

See Motion to Supplement Clerk’s Record.

      On June 10, 2014, Mr. Fishburn signed an agreement to reset

the robbery cases for trial on November 3, 2014.       See Motion to

Supplement Clerk’s Record.

      On October 24, 2014, Appellant, through his new attorney

Allan Fishburn, filed a motion to dismiss the indictments, alleging

that “the prosecution has failed to comply with the requirements of

Tex. Code Crim. Proc. Ann. Article 51.14.” (CR: 46).

      On October 31, 2014, the trial court held a hearing on the

motion to dismiss filed by Mr. Fishburn who stated at the

commencement of the hearing: “Today we are asking the Court to

rule on our second motion for speedy trial, having abandoned the

first, the second one being related to the Interstate Agreement on

                                 5
Detainers, Texas Code of Criminal Procedure Article 51.14 and

that’s before the Court.”    (RR4: 4).   Although counsel specifically

stated that Appellant’s earlier pro se motion to dismiss had been

abandoned and was not before the court in the hearing, he

nevertheless relied on the pro se motion to argue that the State

violated Article III of the statute by not trying Appellant within 180

days of his mailing notice of his demand for a speedy trial to the

Clerk of the Court at the Frank Crowley Courts Building in Dallas,

Texas.     Mr. Fishburn further argued that Appellant was not

required    to   comply     with   the   additional     statutory   notice

requirements of Article III, subsection (a) to trigger the running of

the 180-day time limit to bring him to trial.         The State disagreed

and argued to the court that Appellant was entitled to represent

himself, but his pro se motion was insufficient to support the

allegation of an Article III violation. The prosecutor argued that if

Appellant made a request on his own for a speedy trial under Article

III of the IADA, he had to comply with the statutory notice

requirements of Article III, subsection (a). (RR4: 6-10).

     At the hearing, Mr. Fishburn also asserted that the State

violated the IADA by not trying Appellant within 120 days of the

                                    6
date he was brought back to Texas as required by Article IV. He

claimed that the 120 days expired on June 1, 2014.       (RR4: 14).

Counsel introduced and had admitted Defendant’s Exhibits Nos. 1,

2, and 3 to support his claims. (RR4: 4, 22).

     The trial court examined Exhibit 3, and found that Mr. Davis,

Appellant’s first attorney, signed a continuous series of pass slips

agreeing to reset the trial of the cases. Mr. Fishburn was wrong

about the date on which the 120 days expired. Davis’ last agreed

setting for the trial was June 6, 2014. The court also noted that

was about the time that Mr. Fishburn was appointed. (RR4: 16-17).

The trial court was informed that 120 days from Davis’ final agreed

reset date for trial, June 6, 2014, was September 13, 2014. (RR4:

17). It may be assumed that the court was aware of, although it

was not mentioned in the hearing, an additional pass slip signed by

Mr. Fishburn on June 10, 2014, a day after he was appointed to

represent Appellant, agreeing to reset the trial date to November 3,

2014. See Motion to Supplement Clerk’s Record.

     The motion to dismiss the indictments was denied. (RR4: 18).

Principles of Law, Application, and Conclusion

                Article III Claim Properly Overruled

                                  7
     The IADA is a congressionally-sanctioned compact between

the United States and the states. Cuyler v. Adams, 449 U.S. 433,

442, 101 S. Ct. 703, 66 L.Ed.2d 641 (1981). Texas has adopted the

IADA in Tex. Code Crim. Proc. Ann. art. 51.14 (West 2006). The

IADA outlines the cooperative procedure between the states to be

used when one state is seeking to try a prisoner who is currently

imprisoned in a penal or correctional institution of another state.

State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009).

     Courts have strictly applied the provisions of the IADA.

Alabama v. Bozeman, 533 U.S. 146, 153, 121 S.Ct. 2079, 150 L.Ed.

2d 188 (2001). The burden rests on the prisoner to demonstrate

compliance with the procedural requirements of Article III in order

to benefit from its provisions. Lindley v. State, 33 S.W.3d 926, 930

(Tex. App. – Amarillo 2000, pet. ref’d)(finding where defendant knew

of the appointment of an attorney pro tem and still wished to

exercise his rights under the IADA, it became his duty to notify the

appropriate prosecuting officer, and since he failed to send his IADA

request to the appropriate officer, the attorney pro tem instead of

the clerk of the court and the District Attorney’s office, his rights

under the IADA were not violated).

                                  8
      Under the IADA, a prisoner may make a request for final

disposition of a pending case in another jurisdiction. If the

defendant properly makes the request for final disposition, he must

be tried for the offense within 180 days or the charge must be

dismissed with prejudice. Tex. Code Crim. Proc. Ann. art. 51.14,

Art. III(a), (c).   To request final disposition under Article III, the

defendant must cause to be delivered to the prosecuting officer and

the appropriate court of the prosecuting officer’s jurisdiction written

notice of the place of his imprisonment and his request for a final

disposition to be made of the indictment. Id. Article III(a). Appellant

contends that the only issue concerning the alleged violation of

Article III is whether his mailing his request for a speedy trial

means he “caused to be delivered” his request as the statute

requires. But that is not the only issue in determining the alleged

violation.   Under Article III, a properly delivered request must be

accompanied by a certificate of the appropriate official having

custody of the prisoner stating the following: (1) the term of

commitment under which the prisoner is being held; (2) the time

already served; (3) the time remaining to be served on the sentence;

(4) the amount of good time earned; (5) the time of parole eligibility

                                    9
of the prisoner; and (6) any decision of the state parole agency

relating to the prisoner. Id.

     Appellant argues that the 180-day time limit of Article III

began to run when he mailed his letter and motion to the clerk of

the court in Dallas County because he did everything he must do

to satisfy the IADA requirement that he “caused to be delivered” his

request for transfer under Article III. Appellant’s brief at 35. But,

Appellant would have the court assume that the sufficiency of his

act of delivery equates with the sufficiency of the form of the request

under Article III. It does not.

     The statute provides that the defendant can satisfy the

requirement for “sending” the written notice and request for final

disposition under Article III by giving it to the official having custody

of him, who must then forward it to the appropriate prosecuting

official and court via registered or certified mail. Id. Article III(b).

However, the defendant may send the request to the court and

prosecutor of the other jurisdiction himself, but if he does so, he is

responsible for seeing that the notice is sent in the form required by

the statute. See McNulty v. State, No. 05-02-00635-CR, 2003 Tex.

App. LEXIS 1802, at *5 (Tex. App. – Dallas Feb. 28, 2003, no pet.)

                                   10
(not designated for publication)(Defendant argued that this letter to

the district attorney triggered the IADA, but the appellate court

found that although his letter specifically mentioned Article 51.14,

defendant failed to comply with the provisions of the IADA because

his letter was not mailed via registered or certified mail, return

receipt requested, defendant only sent his letter to the county

district attorney; thus, the letter was not delivered to the

prosecuting officer and the appropriate court of the prosecuting

officer’s jurisdiction, the letter was not accompanied by a certificate

from the appropriate officer having custody of defendant, the letter

failed to disclose information as required by subsection (a) of Article

III); In re Lopez, No. 13-11-00110-CR, 2011 Tex. App. LEXIS 1811,

at *8-9 (Tex. App. – Corpus Christi Mar. 9, 2011, no pet.) (mem. op.,

not   designated   for   publication)   (inmate   who   was   presently

incarcerated in federal prison in South Carolina and had an

outstanding detainer from Texas claimed that he had filed a speedy

trial motion, which was not ruled on, and that the county district

attorney’s failure to comply with the IADA denied him the right to a

speedy trial, but the court denied mandamus relief as it could not

determine from the record whether the required procedure was

                                   11
followed in transmitting the inmate’s documents to the trial court

and   whether    the   trial   court    received   all   of   the   required

documentation under the statute, and under those circumstances,

the court could not conclude that the trial court abused its

discretion in failing to rule on the speedy trial motion).

      In the hearing on defense counsel’s motion to dismiss,

counsel stated that the defense had abandoned Appellant’s earlier

pro se motion to dismiss, but he used the fact that Appellant had

made this request for a speedy trial to argue that this triggered the

time limitations of Article III.   He asserts this position again on

appeal.

      However, Appellant’s pro se motion does not refer to the IADA,

and it does not in any other way invoke his rights under the IADA.

The motion relies on the right to a speedy trial provided by the

Texas Constitution. In the alternative, Appellant requested that he

be relieved of a “detainer warrant.” Appellant cited Smith v. Hooey,

393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) for additional

authority to support his request. In Smith v. Hooey, a prisoner was

indicted in Texas on state charges while serving a sentence at a

federal penitentiary. For the next six years, the defendant made

                                   12
repeated requests for a speedy trial but the Texas authorities did

nothing to advance the matter (even though they knew the

prisoner’s whereabouts). When the petitioner sought a dismissal,

the State asserted that it had no obligation to gain custody of the

defendant while he was imprisoned by another sovereign. The

Supreme Court disagreed. The Court held that when a defendant

demands a speedy trial, the Sixth Amendment right to a speedy

trial required the State to make a diligent, good faith effort to bring

him before a state court for trial even if another sovereign ultimately

might decline to grant such custody.       Id. at 383.   The Interstate

Agreement on Detainers, which obligates its signatories, upon

formal request, to release an inmate to stand trial in another

jurisdiction, did not enter into this decision. The federal government

did not become a party to that compact until after Smith v. Hooey

was decided.   See 18 U.S.C., App. §2.      Thus, neither Appellant’s

letter nor his motion requests a disposition of the indictments in

compliance with Article III of the IADA.

     Even if Appellant’s motion could be understood to be a request

brought under the IADA provisions, Appellant was not entitled to a

dismissal of his cases for failure to comply with Article III because

                                  13
he did not comply with the mandates of the IADA. At the hearing,

the State specifically contended that the provisions of Article III

were not triggered by the pro se request for a speedy trial because

Appellant failed to do the following, as required by the IADA: (1)

attach the statutorily mandated “certificate,” which must contain

Appellant’s term of commitment, time served, time remaining to be

served, good time earned, date of parole eligibility, and any decision

of the state parole agency; and (2) forward the certificate to the

proper prosecuting authority and the court by registered or certified

mail, return receipt requested. (RR4: 9). Tex. Code Crim. Proc. Ann.

art. 51.14, Art. III(a), (b); Votta, 299 S.W.3d at 135.   Rather, the

motion   merely    contains    information    regarding   Appellant’s

incarceration in Oklahoma and the cause numbers of the pending

Texas cases. At the hearing, and again on appeal, Appellant seems

to contend his compliance failures are merely technical, and his

failures should not preclude a dismissal.     Appellant’s brief at 36

(stating Article III should be interpreted to mean that when the

prisoner’s act of transmission of the request is complete the 180

days begins to run). There’s no merit to this argument. See Bryant

v. State, 819 S.W.2d 927, 930-31 (Tex. App. – Houston [14th Dist.]

                                  14
1991, pet. ref’d), where the court specifically held letters to the

court and prosecutor stating the prisoner’s desire for a speedy trial,

a final disposition, and dismissal were insufficient under the IADA,

and, therefore, the prisoner was not entitled to a dismissal because

the prisoner failed to include the statutorily required certificate or

the information that should have been included.         By this point,

Appellant advocates the kind of exception the Bozeman Court

refused to accept in some form of less than absolute compliance

with the statute’s mandatory language.        Article III(b) specifically

states the 180-day deadline applies only when the prisoner shall

have caused to be delivered to the prosecutor and the court his

request for final disposition, which shall include the certificate

described in Article III(a) and shall be sent by registered or certified

mail, return receipt requested.     Tex. Code Crim. Proc. Ann. art.

51.14, Art. III(a), (b) (emphasis added). The use of “shall” is exactly

what the Supreme Court held militated against an implicit

exception to the IADA.

     Because Appellant did not comply with the statutorily

mandated requirements of the IADA, the 180-day deadline never

commenced. Accordingly, because Appellant did not comply with

                                   15
the IADA, the trial court did not err in denying his motion to

dismiss, and this Court should overrule Point One. See Snyder v.

State, No. 08-04-00246-CR, 2005 Tex. App. LEXIS 7750, at *1, 4

(Tex. App. – El Paso Sept. 22, 2005, no pet.) (not designated for

publication)(finding a prisoner may deliver his request directly to

the court and the prosecuting attorney, rather than to the warden;

however, when a prisoner takes it upon himself to deliver the

request for final disposition to the prosecutor and the court, he

must do so in the proper form and include the statutorily required

information, and overruling the complaint about the violation of the

statute).

                 Article IV Claim Properly Overruled

     Article IV(c) of the IADA provides: In respect of any proceeding

made possible by this article, trial shall be commenced within 120

days of the arrival of the prisoner in the receiving state, but for good

cause shown in open court, the prisoner or his counsel being

present, the court having jurisdiction of the matter may grant any

necessary or reasonable continuance. Article V(c) provides that if a

person is not brought to trial within 120 days, the indictment must

be dismissed with prejudice. However, tolling of the 120-day period

                                   16
occurs if the trial court grants a necessary or reasonable

continuance after a showing of good cause is made in open court,

with the defendant or his attorney present. Tex. Code Crim. Proc.

Ann. art. 51.14, Art. IV(c); Morganfield v. State, 919 S.W.2d 731,

733 (Tex. App. – San Antonio 1996, no pet.). In Morganfield, the

court concluded the length of the continuance can be subtracted

from the total number of days between the book-in date and the

first day of trial. Id. at 735.

     Appellant makes the following argument that the continuances

reflected in this record do not toll the 120-day statutory period:

           Appellant was booked into the Dallas County jail on
     March 7, 2014. At the hearing on the motion the [S]tate
     pointed out that several pass slips had been filed by Appellant
     after March 7, 2014. Appellant argued that none of those were
     executed by present counsel who did not pass the case but did
     set it for trial so as not to further delay disposition in the event
     the motion was denied. The State argues the passes tolled the
     statute, including the trial setting. Appellant is correct.
           The [t]rial setting was not a continuance under article
     54.14[sic] article IV (c). The right to assert the deadline for trial
     can only be forfeited by the defendant “explicitly or by
     affirmative request for treatment that is contrary to or
     inconsistent with [those deadlines]”. Walker v. State, 201
     S.W.3rd 841 (Tex. App. – Waco 2006).

Appellant’s brief at 37-38.




                                   17
     As an initial response to this claim, it is clear that Appellant

wishes to win a dismissal by characterizing his newly-appointed

counsel’s agreement on the day after he was appointed to represent

Appellant to reset the trial date from June 6, 2014 to November 3,

2014 as a “trial setting” rather than a “continuance.” But that is

not what the record reflects.     Newly-appointed counsel signed a

form addressed to the trial court with jurisdiction of the cases

which stated that he and the attorney for the State “request a

continuance of this case(s)” to November 3, 2014. Moreover, any

distinction between “setting” the trial for a later date and asking for

a “continuance” is one without any significance under the statute

and the pertinent caselaw. The fact that newly-appointed counsel

was granted an agreed postponement of the trial date in order to

prepare to go to trial, rather than for some other reason, such as a

need to delay the trial due to the attorney’s heavy caseload or

personal problems, does not matter for purposes of the IADA. All

“necessary or reasonable” continuances are treated the same under

Article IV; they toll the 120-day deadline.    Tex. Code Crim. Proc.

Ann. art. 51.14, Art. IV(c); see Huffines v. State, 646 S.W.2d 612,

613 (Tex. App. – Dallas 1983, pet. ref’d) (“agreed resettings,” even

                                  18
without an explanation therefor provided by the record, constituted

“necessary and reasonable” continuances for purposes of tolling

IAD deadline); Ex parte Saylor, 734 S.W.2d 55, 57 (Tex. App. –

Houston [1st Dist.] 1987, no pet.)(same). Appellant has no authority

to show that the final continuance given to Mr. Fishburn upon his

appointment to represent Appellant does not toll the 120-day time

period.

     Appellant also argues that the deadline was not tolled by the

continuances in the record because          he did not personally

participate in obtaining them. It should be noted that Appellant

relies on a Waco Court opinion in Walker for the proposition that a

defendant must personally agree to a trial date outside the 120-day

period to toll the requirements of Article IV of the IADA. However,

Walker is distinguishable on this point. Walker contended that the

court erred by failing to dismiss the indictment with prejudice

because he was not tried within 180 days after requesting a transfer

to Texas under Article III, not Article IV, of the IADA. Opinions from

the Waco Court of Appeals are not binding on this Court.

     What suffices for waiver depends on the nature of the right at

issue.    New York v. Hill. 528 U.S. 110, 114, 120 S.Ct. 659, 145

                                  19
L.Ed.2d 560 (2000).    “[W]hether the defendant must participate

personally in the waiver; whether certain procedures are required

for waiver; and whether the defendant’s choice must be particularly

informed or voluntary, all depend on the right at stake.”    United

States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d

508 (1993). There is no requirement that a waiver of rights under

the IADA be made “knowingly or intelligently” because the Act’s

protections are not founded on constitutional rights. See Cooney v.

Fulcomer, 886 F.2d 41, 46 (3d Cir. 1989) (holding violation of IADA

is not an infringement of a constitutional right); United States v.

Black, 609 F.2d 1330, 1334 (9th Cir. 1979) (same); Camp v. United

States, 587 F.2d 397, 400 (8th Cir.1978) (same); see also Gray v.

Benson, 608 F.2d 825, 826-27 (10th Cir. 1979) (finding defendant

waived IADA rights by requesting transfer to obtain medical

treatment); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.

1977) (finding defendant estopped from raising Article IV(e) claim

where he requested return for parole hearing).    Appellant’s claim

should be rejected.    The signatures of his attorneys alone are

sufficient. See Bell v. State, 768 S.W.2d 790, 801 (Tex. App. –

Houston [14th Dist.] 1989, pet. ref’d); Petrick v. State, 832 S.W.2d

                                 20
767, 772 (Tex. App. – Houston [1st Dist.] 1992, pet. ref’d), overruled

in part as stated on other ground, Blackshear v. State, 385 S.W.3d

589, 591 (Tex. Crim. App. 2012) (holding that where the State and

the accused agree to a continuance in the record, as provided by

Article IV(c), the accused’s personal consent is not required;

counsel’s signature is sufficient); Tex. Code Crim. Proc. Ann. art.

51.14, Art. IV (c)(stating that either the prisoner or his counsel

must be present when a continuance is granted).

     Although Appellant would have it otherwise, postponements or

continuances of the case agreed to by defense counsel toll the time

period required for bringing the accused to trial. See State v. Powell,

971 S.W.2d 577, 581 (Tex. App. – Dallas 1998, no pet.); Rexroad v.

State, Nos. 05-99-01991-CR & 05-99-02004-CR, 2000 Tex. App.

LEXIS 7231, at *4 (Tex. App. – Dallas Oct. 26, 2000, pet. ref’d) (not

designated for publication). Moreover, the Supreme Court expressly

rejected the proposition that the forfeiture of the Interstate

Agreement on Detainers’ deadlines may only be accomplished

“explicitly or by an affirmative request for treatment that is contrary

to or inconsistent with [those deadlines].” Hill, 528 U.S. at 118. As

the Court explained, such an approach would enable defendants to

                                  21
escape justice by willingly accepting treatment inconsistent with the

act’s time limits, and then recanting later on. Id. The Court in Hill

ultimately held that defense counsel’s agreement to a trial date

outside the act’s time period waived Hill’s later complaint.   Id. at

118.

       This is the evidence in the record of the present case.

Appellant was incarcerated in Oklahoma when he was indicted in

Dallas County in the instant aggravated robbery. He was booked

into the Dallas County jail on March 7, 2014, which the parties

represented to be his arrival date under the statute. (RR4: 14, 16).

On March 28, 2014, Appellant, through his appointed attorney

Davis, agreed to continue the case to April 4, 2014. Then by an

uninterrupted series of requested continuances, Appellant agreed to

continue his trial to June 6, 2014.    On June 9, 2014, Appellant

received new counsel Mr. Allan Fishburn who also serves as

appellate counsel in this case. The next day, on June 10, 2014,

Appellant, through newly-appointed counsel, agreed to “request a

continuance” until November 3, 2014. Thus, the statutory period

was tolled during the period between March 28, 2014 to June 6,

2014 and June 10, 2014 to November 3, 2014. Only 25 days of the

                                 22
120-day period would have expired on November 3, 2014, the date

Appellant went to trial in the instant case. Thus, because Appellant

assented to the trial date, he was precluded from complaining that

the trial date was outside the 120-day period.        The delays in

bringing Appellant to trial were not due to prosecutorial delay; thus,

the IADA provides no remedy for Appellant.       Therefore, the trial

court did not err by denying the motion to dismiss the indictments

on the ground that the State had violated Appellant’s rights under

Article IV of the IADA. Point Two should be overruled.

                 RESPONSE TO POINT THREE
  The evidence is sufficient to sustain Appellant’s conviction.

Appellant’s Contention

     Appellant asserts that the eyewitness testimony is insufficient

to prove the element of identity beyond a reasonable doubt.

Appellant’s brief at 42.

Pertinent Facts

     Amanda Edmiston testified that about 3:30 p.m. on July 20,

2006, she and Alyssa Acosta had something to eat at a Dallas

County Wendy’s restaurant. When they returned to her baby blue

Pontiac Bonneville in the parking lot, a man approached her and


                                  23
asked her the time of day. As she answered the man, he pulled out

a black gun and told her to get into the driver’s seat. She identified

Appellant in the courtroom as that man.        She remembered him

because of the star tattoo on his neck. (RR6: 13-15, 17).

     Appellant got into the middle of the back seat and he told

Amanda that they were going to Kansas.       Appellant took her cell

phone. Amanda was terrified even though Appellant said he was

not going to hurt anyone. She felt threatened by his having a gun.

(RR6: 16). Alyssa told Appellant that they were not going to Kansas

with him and he needed to let them go. Amanda drove around for

15 to 20 minutes until Appellant allowed the women to get out of

the car at an elementary school. He drove away as they ran toward

a building. (RR6: 17). She reported the license plate number of her

stolen car to the police. (RR6: 33).

     The next day, Amanda viewed a photographic lineup.           See

State’s Exhibit 5. She made a positive identification of Appellant by

his photograph. (RR6: 18). On cross-examination, Amanda stated

that she would have identified Appellant in the courtroom even if

she had not viewed a lineup. She remembered the star tattoo on

his neck, his dark features, and his hair. (RR6: 32, 34).

                                  24
        Alyssa Acosta testified to the same essential facts as did

Amanda. Alyssa recalled that it was about 3:30 p.m. on the day of

the offense when she was sitting in Amanda’s Bonneville parked in

a Wendy’s parking lot.    Alyssa was sitting in the front passenger

seat.    A man approached the car and asked Amanda the time of

day. (RR6: 37-38). The man pulled a gun. It was an automatic

weapon, not a revolver.    He told Amanda to get into the driver’s

seat, he got into the back seat, and he told Amanda to drive away.

(RR6: 40-41).

        Alyssa recalled that the gunman was Hispanic. He had dark

features and a star tattooed on his neck. He said they were going to

Kansas. (RR6: 41). Amanda drove around for about 10 minutes

during which time Alyssa told the gunman that she was not going

to Kansas with him.     He took their cell phones, but he returned

Alyssa’s cell phone to her. He asked for their wallets, but Alyssa

refused to relinquish her wallet.     (RR6: 42).    When the gunman

released the women at a nearby school, they called the police to

report the offense. Alyssa told the police that the gunman was on

his way to Kansas in a stolen car. (RR6: 41, 43).



                                 25
     The next day, Alyssa viewed a photographic lineup.           See

State’s Exhibit 6. (RR6: 43-44). She made a positive identification

of one photograph. (RR6: 44). She testified that she was certain in

her identification even though no tattoo was showing in the

photograph because she remembered the gunman’s eyes. (RR6: 58-

59). Alyssa identified Appellant in the courtroom as the gunman

who committed the offense. (RR6: 45).

     There   was   additional   evidence   which   corroborated   the

eyewitnesses’ identifications and connected Appellant to the offense.

Kingfisher County, Oklahoma Deputy Sheriff David Lanman

testified that between 7:45 and 8:00 p.m. on the day of the offense,

he stopped and arrested Appellant in Oklahoma.        Appellant was

driving a 1993 blue Pontiac with Texas license plates.       He was

traveling north on I-35.   Lanman stopped Appellant at a location

which is about 3 ½ to 4 hours driving distance from Dallas. The

vehicle he was driving matched the description of the one stolen

that day at 3:30 p.m. in a Dallas County aggravated robbery. After

searching the vehicle, Lanman found a black 380 semi-automatic

weapon on the driver’s side. (RR6: 63-66). In Lanman’s opinion,



                                 26
the best way to travel from Dallas to Kansas is “straight up I-35,”

which goes directly into Kansas City. (RR6: 66-67).

     After Appellant was taken into custody by Officer Lanman in

Oklahoma, former Dallas County Police Department Detective

Martha Sanders created lineups including Appellant’s photograph.

Sanders then showed lineups to Amanda and Alyssa at separate

times in different locations.   (RR6: 69, 71, 72, 76-77).      Both

Amanda and Alyssa made positive identifications of Appellant’s

photograph as that of the gunman who committed the aggravated

robbery. (RR6: 18, 43-44).

Principles of Law Applied to Facts and Conclusions

     Appellant contends “[i]t is absurd to conclude that anyone

could identify” him as the perpetrator of the offense based on these

circumstances: (1) he was identified by two eyewitnesses to whom

he was a stranger, (2) the eyewitness viewed him only for a brief

time during the offense, (3) the eyewitnesses’ ability to form a

memory of his face was impaired by the trauma of the event, and (4)

eight years had elapsed from the time of the event to the day of

trial. Appellant’s brief at 42. Obviously, Appellant is asking this



                                 27
Court to reassess the weight and the credibility of the eyewitness

testimony upon which the jury relied to convict him.

     The reviewing court applies the Jackson v. Virginia sufficiency

standard of review to sufficiency challenges concerning the

elements of a criminal offense. Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323

S.W.3d 893, 898-913 (Tex. Crim. App. 2010). Under the Jackson

standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the

verdict, no rational fact-finder could have found that each essential

element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009).

     The reviewing court’s role is that of a due-process safeguard,

ensuring only the rationality of the trier of fact’s finding of the

essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). It is

the function of the trier of fact to weigh any evidence, and to

evaluate the credibility of any witnesses. See Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999).           Reviewing courts,

                                   28
therefore, defer to the jury’s credibility and weight determinations.

See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Under the Jackson standard, any conflicts or inconsistencies in the

witness’s testimony, including any conflicts regarding the weight of

the evidence, are exclusively within the jury’s province to resolve.

See Dewberry, 4 S.W.3d at 740; Marshall, 210 S.W.3d at 625

(requiring appellate courts to resolve any inconsistencies in

evidence in favor of verdict and “defer to the jury’s credibility and

weight determinations”).

     At the closing of the trial on the merits, defense counsel

argued to the jury that identity of the perpetrator was at issue. He

hoped to persuade the jury that the victims were too upset and too

startled by the gunman’s actions during the fleeting offense

committed eight years ago to have presented reliable testimony

identifying Appellant as the man who committed the offense. (RR6:

112-13).      He challenged the lineup procedure as being unduly

suggestive.     (RR6: 113-18). As the fact-finder, the jury was

responsible for resolving all of the issues that Appellant had raised

at trial with respect to the testimony of these two witnesses (i.e.,

weight of the evidence and credibility of the witnesses).        See

                                 29
Dewberry, 4 S.W.3d at 740; Marshall, 210 S.W.3d at 625. The jury

was well-within its province to believe Amanda and Alyssa when

they testified that Appellant is the Hispanic man with the tattooed

neck, distinctive eyes and hair, and dark features they remembered

from having seen him during the commission of the aggravated

robbery, and to disbelieve and reject any suggestions from the

defense to the contrary. See Dewberry, 4 S.W.3d at 740; Marshall,

210 S.W.3d at 625.        These eyewitnesses appeared to be credible

because their in-court identifications of Appellant were consistent

with the identifications from the lineups they made only one day

after the offense had occurred.

     In     addition,   Appellant   was   linked   to   the   offense   by

circumstantial evidence.      He was found in possession of the car

stolen during the aggravated robbery only four hours after it had

occurred.     He was driving on a highway best suited to take him

directly from Dallas to Kansas City, the location he told the

eyewitnesses he wanted to go to before he took the car. Inside the

car was a weapon which matched the descriptions of the weapon

the eyewitnesses had seen during the offense.



                                    30
     Viewing the evidence in the light most favorable to the verdict,

and deferring to the jury’s credibility and weight determinations,

this Court should conclude that a rational fact-finder could have

found, beyond a reasonable doubt, that Appellant committed the

offense, as charged.      Therefore, this Court should overrule this

point and hold that the evidence is legally sufficient to support

Appellant’s conviction.    See Johnson v. State, 176 S.W.3d 74, 78

(Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) (reasoning that the

testimony of a single eyewitness identifying the accused is sufficient

to support a felony conviction for aggravated robbery); Santos v.

State, 116 S.W.3d 447, 457-59 (Tex. App. – Houston [14th Dist.]

2003, pet. ref’d) (concluding evidence sufficient when eyewitnesses

identified   defendant    as   a   participant   in   a   robbery   and

circumstantial evidence relating to the firearm used in the robbery

corroborated witness identification and showed defendant’s guilt

even though defendant testified he was not involved in the robbery);

Mayes v. State, Nos. 03-10-00101-CR & 03-10-00102-CR, 2011

Tex. App. LEXIS 2075, at *26 (Tex. App. – Austin Mar. 18, 2011, no

pet.)(mem. op., not designated for publication) (finding evidence

sufficient to sustain a robbery conviction because both victims

                                   31
identified defendant, neither victim expressed any uncertainty in

their identifications, defendant was found driving the vehicle used

in the robberies, and officers found a black BB gun like the one

used to commit the robberies).

                     RESPONSES TO POINT 4

   Appellant failed to file a plea to jurisdiction in the 283rd
  Judicial District Court, and he waived Point 4’s complaint.

 The 283rd District Court which tried Appellant’s cases did not
  lack jurisdiction due to an improper transfer to its docket.

Appellant’s Contention

     Appellant contends that the court which tried his cases (which

he incorrectly identifies as the 291st Judicial District Court instead

of the 283rd Judicial District Court), never acquired jurisdiction of

his case and the judgment of conviction out of that court is void.

This claim is based on an assertion that Appellant’s indictment was

presented to the 204th Judicial District Court of Dallas County, and

his case was never properly transferred out of that court to the

court which heard his cases because the record does not contain

the 204th Judicial District Court’s transfer order. Appellant’s brief

at 44.

Principles of Law Applied to Facts and Conclusions

                                  32
     Appellant   failed   to   file   a    formal   plea   challenging   the

jurisdiction of the trial court. Thus, he failed to preserve this issue

for appellate review. Lemasurier v. State, 91 S.W.3d 897, 899-900

(Tex. App.- Fort Worth 2002, pet. ref’d) (fact that no transfer order

contained in record is procedural matter, not jurisdictional;

defendant who fails to file plea to jurisdiction waives complaint);

Gullatt v. State, Nos. 05-13-01515-CR & 05-13-01516-CR, 2014

Tex. App. LEXIS 13832, at *3 (Tex. App. – Dallas Dec. 29, 2014, no

pet.) (mem. op., not designated for publication).

     If this Court decides to address this unpreserved point, it

should overrule it because this Court has previously met and

rejected this same argument.          Hill v. State, No. 05-09-00078-CR,

2010 Tex. App. LEXIS 1486, at *3 (Tex. App. – Dallas Mar. 3, 2010,

no pet.) (not designated for publication); Ives v. State, Nos. 05-13-

00615-CR & 05-13-00616-CR, 2014 Tex. App. LEXIS 3749, at *3

(Tex. App. – Dallas Mar. 31, 2014,no pet.) (mem. op., not designated

for publication). A grand jury formed and impaneled by a district

judge inquires “into all offenses liable to indictment” and hears all

the testimony available before voting on whether to indict an

accused.   Tex. Code Crim. Proc. Ann. arts. 20.09, 20.19 (West

                                      33
2005); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987).

A grand jury is “often characterized as an arm of the court by which

it is appointed rather than an autonomous entity.”         After the

conclusion of testimony, a grand jury votes “as to the presentment

of an indictment.” Dallas County Dist. Attorney v. Doe, 969 S.W.2d

537, 542 (Tex. App. – Dallas 1998, no pet.). Following presentment,

an indictment is filed in a court with competent jurisdiction, i.e.,

jurisdiction to hear the case. Hultin v. State, 351 S.W.2d 248, 255

(Tex. Crim. App. 1961).

     In counties having two or more district courts (such as Dallas

County), the judges of the courts may adopt rules governing the

filing, numbering, and assignment of cases for trial and the

distribution of the courts’ work they consider necessary or desirable

to conduct the business of the courts.       Tex. Gov’t Code Ann.

§74.093 (West 2013) (addressing adoption of local rules of

administration to provide, in part, for assignment, docketing,

transfer, and hearing of all cases). Thus, a specific district court

may impanel a grand jury; however, it does not necessarily follow

that all cases returned by the grand jury are assigned to that court.



                                 34
Bourque v. State, 156 S.W.3d 675, 678 (Tex. App. – Dallas 2005,

pet. ref’d).

      In the present case, the indictment reflects that a grand jury

was impaneled by the 204th Judicial District Court of Dallas

County. (CR: 10). Following the return of Appellant’s indictment,

this case was filed in the 283rd Judicial District Court of Dallas

County. The Clerk’s Record reflects the statement of the Honorable

Rick Magnis, presiding judge of the 283rd Judicial Court, that his

court received “instruments and papers” associated with this case.

(CR: 4). The 283rd Judicial Court’s docket sheet reflects the filing of

the indictment in that court.     (CR: 5-9).   Nothing in this record

indicates that this case was originally filed in, or appeared on the

trial docket of the 204th Judicial District Court.   Because the 283rd

Judicial District Court had jurisdiction to hear and render

judgment in Appellant’s case, Appellant’s Point 4 should be

overruled.

                               PRAYER

      The State prays that this Honorable Court will affirm the

judgment of the trial court in the present case.          Respectfully

submitted,

                                  35
                                      /s/Patricia Poppoff Noble

SUSAN HAWK                            PATRICIAPOPPOFFNOBLE
District Attorney                     Assistant District Attorney
Dallas County, Texas                  State Bar No. 15051250
                                      Frank Crowley Courts Building
                                      133 N. Riverfront Blvd., LB-19
                                      Dallas, Texas 75207-4399
                                      (214) 653-3634
                                      pnoble@dallascounty.org

         CERTIFICATE OF SERVICE AND WORD COUNT

     I hereby certify that a true copy of the foregoing brief was
served on, Allan Fishburn, attorney for Appellant by efiletexas.gov
and by United States mail, on June 1, 2015.
     I hereby further certify that the length of this brief is 8,132
words using Microsoft Word 2010.

                                      /s/Patricia Poppoff Noble
                                      PATRICIA POPPOFF NOBLE




                                 36
