                                                                                PD-1039-14
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
  May 6, 2015                                                  Transmitted 5/4/2015 3:07:22 PM
                                                                 Accepted 5/5/2015 9:37:30 AM
                                                                                ABEL ACOSTA
                                NO. PD-1039-14                                          CLERK

                 IN THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

         JOSE GUADALUPE RODRIGUEZ ELIZONDO, APPELLANT

                                      V.

                      THE STATE OF TEXAS, APPELLEE


          ON APPEAL FROM CAUSE NO. 13-12-00028-CR
            IN THE THIRTEENTH COURT OF APPEALS
               TRIAL COURT CASE NO. CR-3485-10-I
              TH
 FROM THE 398 JUDICIAL DISTRICT OF HIDALGO COUNTY, TEXAS
        The Honorable Linda R. Yañez, Presiding by Assignment


                        BRIEF OF STATE/APPELLEE


                                     RICARDO RODRIGUEZ, JR.
                                     CRIMINAL DISTRICT ATTORNEY
                                     HIDALGO COUNTY TEXAS

                                     MICHAEL W. MORRIS, ASSISTANT
                                     State Bar No. 24076880
                                     Lead Counsel for Appellee

                                     Office of Criminal District Attorney
                                     Hidalgo County Courthouse
                                     100 N. Closer Blvd.
                                     Edinburg, Texas 78539
                                     Telephone: (956) 318-2300 ext. 781
                                     Telefax:     (956) 380-0407

                                     ATTORNEYS FOR THE STATE
Oral argument is not requeste


                                      ii
                IDENTITY OF PARTIES AND COUNSEL

      APPELLANT in this case is Jose Guadalupe Rodriguez Elizondo.

      APPELLANT is represented on appeal by Hon. Brandy Wingate, 809A

Savannah Ave, #481, McAllen, Texas 78503.

      APPELLANT was represented at trial by Hon. Santos Maldonado, 209 E.

University Dr., Edinburg, Texas 78539.

      APPELLEE in this case is the State of Texas, by and through her Criminal

District Attorney for Hidalgo County, the Hon. Ricardo Rodriguez, Jr., Office of

Criminal District Attorney, Hidalgo County Courthouse, 100 N. Closner Blvd.,

Edinburg, Texas 78539.

      APPELLEE is represented on appeal by Hon. Michael W. Morris,

Assistant Criminal District Attorney for Hidalgo County, Hidalgo County

Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.

      APPELLEE was represented at trial by Hon. Rolando Cantu, Assistant

District Criminal Attorney for Hidalgo County, and Hon. Criselda Rincon-

Flores, Assistant Criminal District Attorney for Hidalgo County, Hidalgo

County Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.




                                         ii
                                             TABLE OF CONTENTS


Identification of Counsel and Parties ................................................................... ii

Table of Contents ................................................................................................ iii

Index of Authorities .............................................................................................. v

Notation as to Citation ....................................................................................... vii

Statement of the Case ....................................................................................... viii

Issues Presented (Restated) ............................................................................... viii

Statement of Facts ................................................................................................. 1

Summary of the Argument ................................................................................... 1

Argument .............................................................................................................. 1

I.       There was no “Second Provocation”, rather there was a
         continuation of the First and as such the Thirteenth Court of
         Appeals did not error in its provocation analysis.................................. 2

II.      The Thirteenth Court of Appeals correctly held that the Jury
         Charge was either not erroneous, Appellant did not suffer the
         requisite level of harm to warrant reversal or had not
         preserved the error ................................................................................... 4

  A. Second Provocation Instruction .............................................................. 5

  B.     Defensive Instruction Error..................................................................... 7

  C. Harm Analysis Error ............................................................................... 9

  D. Cumulative error ....................................................................................12

Prayer for Relief..................................................................................................13



                                                           iii
Certificate of Compliance ...................................................................................15

Certificate of Delivery ........................................................................................16




                                                        iv
                             INDEX OF AUTHORITIES

                                           Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App 1985) ......................8, 9, 11

Barrera v. State, 982 S.W2d 415 (Tex. Crim. App 1998) .......................8, 9, 11

Elizondo v. State,
2014 Tex. App. LEXIS 462 (Tex. App. Corpus Christi Jan. 16, 2014) ........4, 11

Frank v. State, 688 S.W2d 863 (Tex. Crim. App 1985) ...................................... 8

Golston v. State,
2012 Tex. App. LEXIS 5251 (Tex. App. Texarkana June 29, 2012) .................. 8

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) ...................................... 3

Linney v. State, 413 S.W.3d 766 (Tex. Crim. App 2013) .................................13

Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) ..................................7, 8

Reynolds v. State,
371 S.W.3d 511 (Tex. App. -- Houston [1st Dist.] 2012) ...............................7, 8

Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) ..............................2, 3

Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) ....................................13

Tallant v. State, 742 S.W.2d 292, 294 (Tex. Crim. App. 1987) .......................... 3

VanBrackle v. State, 179 S.W.3d 708 (Tex. App. --Austin 2005) ....................10

Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992) ...................................13



                                              v
Westley v. Johnson, 83 F.3d 714, 726 *5th Cir. 1996) .......................................13


                                       Statutes and Rules

TEX. CODE CRIM. PROC. art. 14.01 (2012) ..........................................................11

TEX. PENAL CODE ANN. § 9.04 (2012).................................................................. 7

TEX. PENAL CODE ANN. § 9.31 (2012).................................................................. 2

TEX. PENAL CODE ANN. § 9.32 (2012)................................................................11




                                                  vi
                       NOTATION AS TO CITATION

Citation to the record of the case below will be as follows:

   1. Citation to the twenty-one volume Reporter’s Record (RR) and the one

      volume Supplemental Reporter’ Record (SRR) will be to volume and

      page, e.g., “2 RR 12” refers to page 12 of volume 2 of the Reporter’s

      Record.

         a. Citation to State’s exhibits will be to volume and exhibit, e.g., “21

             RR SX 1” refers to State’s exhibit one found within volume 21 of

             the Reporters Record.

         b. Citation to Defense’s exhibits will be to volume and exhibit, e.g.,

             “21 RR DX 1” refers to Defense’s exhibit one found within volume

             21 of the Reporters Record.

   2. Citation to the single-volume Clerk’s Record (CR) and the single volume

      Supplemental Clerk’s Record (SCR) will be to page only, e.g., “CR 015”

      refers to page 15 of the Clerk’s Record.

   3. Citation to Appellant’s Brief (AB) will be to page only, e.g., “AB 6”

      refers to page 6 of the Appellant’s Brief.




                                        vii
                 STATEMENT OF THE CASE

The State adopts Appellant’s Statement of the Case.



                     ISSUES PRESENTED

The State adopts Appellant’s Issue Presented.




                                viii
                               STATEMENT OF FACTS

       With the exception of parts two and three of the Appellant’s Statement of

Facts, the State adopts for purposes of this brief the Appellant’s facts as laid out

in his Statement of Facts1.



                         SUMMARY OF THE ARGUMENT

        Appellant did not abandon the difficulty as a matter of law, this

determination was a fact issue to be determined by the Jury. The Thirteenth

Court of Appeals properly held that the mere fact that Appellant ran 70 yards

while making threats was not clear communication of an intent to abandon the

difficulty.

       The alleged charge errors were either not error on the part of the trial

court, or the error did not result in the necessary level of harm under Almanza to

demand reversal.




1
 The Statement of Facts is generally a complete recitation of the evidence adduced at trial; the
State would note that Appellant includes both the evidence that supports his assertions as well
as the evidence generally against him. As Appellant has been found guilty, the evidence is
viewed in a light favoring the verdict.


                                               1
                                       ARGUMENT

        I.   There was no “Second Provocation”, rather there was a
             continuation of the First, and as such, the Thirteenth Court of
             Appeals did not error in its provocation analysis.

         In his first briefed issue, Appellant challenges the Court of Appeals

determination that he had not abandoned the initial provocation. Appellant

contends the court of appeals erred by not applying all of the Smith2 factors

when in analyzed the “second provocation”.

         The State contends that the Court of Appeals correctly held that Appellant

did not clearly abandon the initial provocation, and as such, there was not a

“second provocation.” Rather, there was, at most, change in position. The

abandonment must be clearly communicated through either words or actions.

TEX. PENAL CODE ANN. § 9.31(b)(4) (2012). This would necessitate both an

intention of abandonment by Appellant and such action as to allow the other

party to clearly understand that abandonment. While Appellant testified that he

was running to his truck with the sole intention of escaping the altercation, and

that he did not have any thought of getting his firearm, the jury and the Aourt of

Appeals was free to disbelieve this. 16 RR 196. The evidence does not support

Appellant’s contention that he clearly communicated his abandonment of the

difficulty. Although it does show that Appellant ran nearly 70 yards from the


2
    Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998).


                                               2
front of the club to his vehicle, it also shows that he was shouting threats or

words that could be taken as threats, i.e. “van a ver”3, and was running towards

his weapon. 15 RR 234-35. Junior further testified that he took those words to

be a threat. 15 RR 235. The evidence further acknowledges that Appellant was

aware that he was running towards his weapon.                 In his written statement,

Appellant stated “I ran towards my truck where I had my duty-issue H&K. I

usually take my gun with me when I’m off duty. I carry my gun in my truck and

left it in the center console.”4 21 RR DX 21. The jury was free to see this as

evidence that this was Appellant’s intention from the beginning. Further, the

other parties were aware that he might have had a weapon in his vehicle. 16 RR

10.

        Appellant testified that he forgot that his weapon was in his vehicle. 16

RR 196, 199, 241, 17 RR 5. The jury was free to disbelieve this statement in

view of the fact that the first thing Appellant did was grab his firearm upon

reaching his vehicle. 16 RR 200. Appellant’s contention that because these

words were said after he started to flee to his truck and Junior and the others

were already in pursuit at the time, that these words could not be cause for

provoking a second confrontation at the truck is misplaced. Without clear
3
  “Van a ver” was translated as “you will see” at trial. 15 RR 235.
4
  Appellant’s claim that the Court of Appeals used this statement out of context is without
merit. The jury and the Court of Appeals was free to interpret this in the manner they did,
Appellant simple cannot on appeal require a phrase to have a certain meaning as the evidence
is to be viewed in the light most favorable to a jury’s verdict. See


                                             3
abandonment of the initial difficulty there was no need for a “second

provocation.” The “threat” made by Appellant is evidence that Appellant failed

to clearly communicate an abandonment of the first. By yelling “[y]ou’re going

to see” after getting into a fight, Appellant is making a continuing threat, not

communicating an end to the fight. The Court of Appeal correctly held that

Appellant had not communicated an intent to abandon the difficulty and was

therefore also correct when it did not analyze the additional actions by Appellant

under the Smith factors. Without an abandonment, there was not a second

provocation. See Elizondo v. State, 2014 Tex. App. LEXIS 462 at *17 (Tex.

App. Corpus Christi Jan. 16, 2014). Appellant is incorrect in stating that the

Court of Appeals had to determine whether the factors during and after the chase

were sufficient provocation. Because the determination that Appellant did not

abandon is dispositive and precludes the need for a finding of further

provocation, Appellant’s analysis in this first issue is flawed and should be

rejected.

    II.     The Court of Appeals correctly applied this Court’s precedent and
            affirmed the conviction.

      In Appellant’s second briefed issue, he contends the Court of Appeals

erred in its analysis of the jury charge on self defense by way of five topics: (1)

included a provocation instruction over Appellant’s objection; (2) failing to

include an instruction on section 9.04; (3) failing to include any reference to

                                        4
multiple assailants; (4) not including all the presumptions of reasonable use of

force within section 9.32 of the Penal Code; (5) provocation instruction

incorrectly directed the jury to find Appellant guilty of murder upon a finding of

provocation; and (6) cumulative error.

               A. Including a Provocation Instruction

       As to the provocation instruction, Appellant correctly states that it should

only be submitted to the jury when “there is evidence from which a rational jury

could find every element of provocation beyond a reasonable doubt.” AB 45;

Smith, 965 S.W2d 514. The elements are: (1) that the defendant did some act or

used some words which provoked the attack on him, (2) that such act or words

were reasonably calculated to provoke the attack, and (3) that the act was done

or the words were used for the purpose and with the intent that the defendant

would have a pretext for inflicting harm upon the other. Id. at 513.

       Appellant incorrectly states that there was no evidence of provocation 5.

AB 45. The evidence shows that that Appellant was in an altercation with the

bouncers of Punto 3 nightclub and there was testimony that Appellant started

this altercation striking Mr. Fermin Limon. 14 RR 98-99, 15 RR 36-37, 15 RR

228-230. Further, that this lead the bouncers to attack Appellant. 14 RR 99, 15
5
  For this proposition, Appellant contends there was no provocation at the second altercation
However, the State contends that there was no separate altercation but merely a continuation
of the first. Additionally, Appellant’s attack on the provocation instruction is predicated on a
finding of abandonment. He does not actually challenge the elements of provocation for what
he terms the “first altercation.”


                                               5
RR 230-232. Appellant then ran to his truck and retrieved his firearm. 16 RR

195-200. It is not necessary that the evidence establish a conclusive motive for

murder. Smith, 965 S.W.2d 519. It merely must give some basis for a rational

jury to find that that Appellant’s act or words were made with the intent that

Appellant would have a pretext for inflicting harm on another. Id. Because of

the heated argument and Appellant’s retrieval of a firearm, it was reasonable to

believe that there was some evidence from which a jury could find such intent.

Provocation is ultimately a question of fact rather than law; and if there is

sufficient evidence from which a rational jury could have found provocation

beyond a reasonable doubt, when viewed in favor of the provocation charge, the

charge is properly given. Id. Appellant fails to view the evidence in the light

most favorable to giving the charge.

      Appellant’s error is in viewing his belief that his claimed abandonment

required the issue of provocation to be resolved.    Merely because Appellant

might have had a viable theory of abandonment does not preclude the

provocation instruction. Abandonment is a fact issue that needs to go before the

ultimate fact finder, the jury, for determination. Provocation was a central

portion of the State’s case. The Court of Appeals was correct in holding the




                                       6
evidence supported the inclusion of a provocation instruction; any issue was a

fact issue for the jury to decide6.

               B. Defensive instruction error

       In Appellant’s second and third alleged errors, he contends that the Court

of Appeals erred by failing to conduct analysis of his complaints that the jury

charge failed to give a 9.047 instruction or a multiple assailants instruction. AB

46. The Court of Appeals held that as each of these instructions is a defensive

issue, failure to request the instruction or object to the lack of the instruction

waived any error under Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998). The State contends this is the correct analysis as without a request, these

instructions were not preserved.

       Appellant’s reliance on Reynolds v. State, 371 S.W.3d 511 (Tex. App. --

Houston [1st Dist.] 2012), is misplaced. In Reynolds, the defendant requested

the 9.04 instruction and was denied. Id. at 522. In this case, Appellant failed to

make such a request.          Under Posey, a defendant is required to request a

defensive instruction or it is deemed waived. 966 S.W.2d at 62. Additionally,


6
  Appellant again asserts that by running some 70 yards he clearly abandoned the difficulty.
As such in the State’s response this is not the case. It was a fact issue that should have gone
and did go to the jury. Appellant would have this Court hold that running to his vehicle while
shouting threats is abandonment as a matter of law. Provocation and abandonment are fact
intensive issues that should go to a jury as long as there is some evidence to support the
inclusion of the instruction. Smith, 965 S.W.2d 519
7
  This references to the “Threats as Justifiable Force” provision in the Texas Penal Code.
TEX. PENAL CODE ANN. § 9.04 (2012).


                                              7
Appellant would fail under harm analysis as in Reynolds, the Court held that

even though the instruction was requested, the defendant failed to prove harm.

Reynolds, 371 S.W.3d at 524-25. In Reynolds, the harm was analyzed under the

harmless error doctrine. Id. at 522. In this case, because the instruction was not

requested, Appellant would have to show egregious harm. Almanza 686 S.W.2d

at 171. Given that the Reynolds Court held that the error was harmless the State

does not see how Appellant can meet the egregious harm standard on similar

facts.

         Likewise, the multiple assailants instruction is a defensive issue that must

be raised by a defendant or it is deemed waived. Posey, 966 S.W.2d at 62.

Appellant cites to Frank v. State, 688 S.W2d 863, 868 ((Tex. Crim. App 1985),

for support of this instruction. This reliance is again misplaced; in Franks, the

instruction at issue was requested. Id. In the case at bar, Appellant did not

request this defensive instruction and has therefore waived it8. Posey, 966

S.W.2d at 62.

         Appellant alleges that by charging on self defense the Trial Court had a

duty to state the law correctly. Appellant cites Barrera v. State, 982 S.W.2d

415, 416 (Tex. Crim. App. 1998) for this proposition. However, Barrerra is
8
 As an illustration, the Sixth Court of Appeals in Texarkana has held that failure to request
this instruction waived this instruction as the trial court had no duty to sua sponte include the
instruction and therefore “did not err in failing to instruct the jury on this defensive issue.”
Golston v. State, 2012 Tex. App. LEXIS 5251 (Tex. App. Texarkana June 29, 2012).


                                                8
distinguishable as it deals primarily with the Court’s duty to correctly state the

law when giving an instruction sua sponte. Id. It does not state that when giving

a self-defense instruction, any other potentially applicable additional defensive

instructions must be included, even without a defendant’s request. Id. Appellant

would have this Court hold that by charging on the defensive issue of self-

defense the Court gains a duty to determine all additional charges that the

defendant might be entitled to or suffer reversal. This cannot be balanced

against the dictates of Posey; that failure to request a specific instruction waives

the issue. The Court of Appeals correctly held that these instructions were

waived under Posey.

             C. Harm Analysis error

      In his fourth and fifth claims, Appellant alleges that the Court of Appeals

failed to conduct a proper harm analysis of the charge errors contained in the

presumptions charge and the provocations charge. AB 49.

      Appellant also contends that the Court of Appeals erred in holding that the

provocation instruction directed the jury to find him guilty as the charge stated,

“if you find there was such a design, then you will find defendant guilty of

murder,” at the end of the provocation instruction was harmless. AB 45. The

Court of Appeals was correct in holding that the charge was erroneous when it

directed the jury to find Appellant guilty if it found provocation. The Court of



                                         9
Appeals was likewise correct in holding that the charge nevertheless did not

warrant reversal under the appropriate harm analysis. Because Appellant did not

object to the charge, the appropriate harm standard is egregious harm. Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App 1985)

         The State would first note that by its nature, a finding against Appellant

on the provocation issue is a finding against him as to self-defense. Given that

Appellant testified himself that he intentionally fired his weapon at Mr. Limon9,

and the testimony that Mr. Limon died as a result of those gunshots10, his

complicity in the death of Mr. Limon can hardly be called a contested issue.

Rather, the issue was whether he was justified in taking Mr. Limon’s life.

Further, in a claim of self-defense the defendant must admit to the crime at

issue. VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.--Austin 2005).

Given the state of the evidence, a finding against Appellant on provocation

necessarily leads to a finding of guilt in the murder of Mr. Limon.

         Appellant also complains that the Court of Appeals holding that the

incomplete charge as to the presumption of reasonableness was harmless was

error. AB 49-50. Specifically, the Court of Appeals held that the charge failed

to instruct that the presumption of reasonableness also arises from the actor’s

reasonable belief that the person against whom he used force was: (1)

9
    14 RR 213-15
10
     16 RR 103-04


                                         10
“unlawfully and with force entered, or attempting to enter unlawfully and with

force, the actor’s occupied habitation, vehicle, or place of business or

employment”; or (2) was “unlawfully and with force remove, or attempting to

remove unlawfully and with force, the actor from the actor’s habitation, vehicle,

or place of business or employment.” Elizondo, 2014 Tex. App. LEXIS 462 at

*23; TEX. PENAL CODE 9.32(b)(1)(A)-(B). As Appellant did not object to this

“error” at trial, it is subject to egregious harm analysis. Barrera, 982 S.W2d at

417; Almanza, 686 S.W.2d at 171.

      Appellant contends that the evidence supports the presumption because

the evidence shows Appellant “knew or had reason to believe that Junior either

unlawfully, and with force, entered [Appellant]’s vehicle or removed him from

the vehicle was attempting to do so. AB 49; 15 RR 80; 15 RR 237. However,

merely banging on a truck window and telling an individual to “get off asshole”

does not constitute either the actual or attempted forceful entry or removal of

Appellant by Junior. It also does not necessarily mean it was unlawful; Rodrigo

testified that the reason they gave chase was to detain Appellant. 15 RR 39. As

the testimony was that Appellant struck Mr. Limon, under section 14.01 of the

Texas Code of Criminal Procedure, the security personnel would have been

authorized to make a citizen’s arrest for breach of peace. See TEX. CODE CRIM.

PROC. art. 14.01 (2012). Additionally, even without the presumptions at issue,



                                       11
the jury was free to conclude that Appellant’s actions were reasonable based on

the charge a person is justified in using force against another when and to the

degree they reasonably believe the force is immediately necessary to protect

themselves against the other person's use or attempted use of unlawful force.

CR 003.    Further, the State would note that the only evidence that could

reasonably support the presumption is Appellant’s testimony that he was

forcible removed from his vehicle.         16 RR 202-03.     This evidence was

contradicted by several witnesses who all stated that Appellant exited his vehicle

only after Appellant’s brother grabbed Junior. 14 RR 105-06; 15 RR 238. As

Appellant did not object and the evidence does not support this presumption, the

State contends that he was not egregiously harmed. Further, given the analysis

as to the provocation and that a finding of provocation removes the issue of self-

defense, the State contends the Court of Appeals was correct in holding that

Appellant did not suffer egregious harm.

             D. Cumulative error

      Finally Appellant claims that the charge as a whole was a garbled mess.

The State would construe this to be a claim that the errors contained in the

charge are cumulative error, in that even if each individual error did not rise to

the level warranting reversal, the charge as a whole does. AB . However,

Appellant did not raise cumulative error before the Thirteenth Court of Appeals.



                                       12
As cumulative error is a a independent ground for relief that must be raised

separately from the underlying instances of error. See Linney v. State, 413

S.W.3d 766, 767 (Tex. Crim. App 2013)(Cochran J., concurring); Westley v.

Johnson, 83 F.3d 714, 726 *5th Cir. 1996). Failure to brief and raise an issue in

the lower court waives the error. See Tallant v. State, 742 S.W.2d 292, 294

(Tex. Crim. App. 1987); Ward v. State, 829 S.W.2d 787, 795 (Tex. Crim. App.

1992)( overrruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex.

Crim. App. 2000)).

      The State submits that the charge errors complained of either were not

harmful to the degree necessary under the appropriate Almanza standard or were

not trial court error. As such, this Court should affirm this conviction.




                                        13
                           PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court affirm the opinion of the Court of Appeals.


                               Respectfully submitted,

                               RICARDO RODRIGUEZ, JR.
                               CRIMINAL DISTRICT ATTORNEY
                               HIDALGO COUNTY TEXAS


                                /s/ Michael W. Morris
                               ___________________________
                               Michael W. Morris, Assistant
                               Criminal District Attorney

                               State Bar No. 24076880

                               Office of Criminal District Attorney
                               Hidalgo County Courthouse
                               100 N. Closner Blvd.
                               Edinburg, Texas 78539
                               Telephone: (956) 318-2300 ext. 781
                               Telefax:     (956) 380-0407
                               Michael.Morris@da.co.hidalgo.tx.us

                               ATTORNEYS FOR THE STATE




                                       14
                          Certificate of Compliance

This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than

14-point for text and 12-point for footnotes. This document also complies with

the word-count limitations of Tex. R. App. P. 9.4(i), because it contains 3,318

words, excluding the parts exempted by Rule 9.4



                               Respectfully submitted,


                               /s/ Michael W. Morris
                               _____________________________
                               Michael W. Morris, Assistant
                               Criminal District Attorney

                               State Bar No. 24076880

                               Office of Criminal District Attorney
                               Hidalgo County Courthouse
                               100 N. Closner Blvd.
                               Edinburg, Texas 78539
                               Telephone: (956) 318-2300 ext. 781
                               Telefax:     (956) 380-0407
                               Michael.Morris@da.co.hidalgo.tx.us




                                      15
                      CERTIFICATE OF DELIVERY

      This is to certify that a true and correct copy of the foregoing Brief of

State/Appellee was sent to Appellant’s attorney of record, Brandy M. Wingate

at, The Smith Law Group, by e-service, on this the 4th day of May, 2015.




                                            /s/ Michael W. Morris
                                            ______________________
                                            Michael W. Morris




                                      16
