                                                                          ACCEPTED
                                                                      08-17-00163-CV
            08-17-00163-CV                                 EIGHTH COURT OF APPEALS
                                                                     EL PASO, TEXAS
                                                                   5/25/2018 12:08 PM
                                                                    DENISE PACHECO
                                                                               CLERK
          IN THE COURT OF APPEALS
          EIGHTH DISTRICT OF TEXAS

                                                       FILED IN
                                                8th COURT OF APPEALS
                                                    EL PASO, TEXAS
               NO. 08-17-00163-CV               5/25/2018 12:08:59 PM
                                                    DENISE PACHECO
                                                         Clerk

             MARTHA A. DELGADO
                        Appellant,

                         v.
              JOSE LUIS DELGADO

                              Appellee



388th Judicial District Court of El Paso County, Texas



                RESPONSE BRIEF



                       MARIO A. GONZALEZ
                       Counsel for Jose Luis Delgado
                       State Bar No. 08130710
                       1522 Montana Avenue
                       El Paso, TX 79902
                       Tel: (915) 543-9802
                       Fax: (915) 533-0588

                       mario@gonzaJezJawfirm. com
                                          TABLE OF CONTENTS

TABLE OF
CONTENTS .......................................................................................................... .i, ii

INDEX OF
AUTHORITIES ................................................................................................. .iii, iv

RESPONSE POINTS ............................................................................................... v

STATEMENT OF FACTS ........................................................................................ 1

ARGUMENT ............................................................................................................. 4

     1. The trial court did not abuse its discretion by dividing the
        community property of the marital estate in the 'just and right"
        manner set forth in the Texas Family Code §7.001 because it had
        sufficient information upon which to exercise its
        discretion ......................................................................................................... 4

    2. The trial court did not abuse its discretion by dividing the
       community property of the marital estate in a way that was
       manifestly unjust .......................................................................................... 10

    3. The Court properly characterized the cars as being a community debt but
       was under no obligation to characterize these gifts to the children of the
       parties as community assets ........................................................ 10

    4. The Court did not abuse its discretion in its division of the
       property since the law allows the trial court great altitude
       in dividing the estate and is not proscribed from granting a money
       judgement secured by an owelty lien .............................................. 12

     5. The Court did not abuse its discretion by rendering a money judgement
        and specifying the method of payment pursuant to its authority under
        Tex. Fam. Code§ 7.001 ............................................................. 13

PRAYER................................................................................................................. 15
CERTIFICATE OF
COMPLIANCE ................................................... .. ........ .......................... ............ 16


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




                                                            11
                                  INDEX OF AUTHORITIES

STATE CASES                                                                                 PAGES




Bell v. Campbell, 328 S.W.3d 618, 620 (Tex. App.-El Paso 2010, no pet.} ..... 5, 6

Burney v. Burney, 225 S.W.3d 208, 215 (Tex.App.-El Paso 2006, no pet.) ........ ..5

Chafino v. Chafino, 228 S.W.3d 467, 473 (Tex. App.-El Paso 2007, no pet.) ...... 5

Cockerham v. Cockerham,_527 S.W.2d 162, 171 (Tex.1975} ......................... 10

Downer v. Aquamarine_Operators, Inc. , 701 S.W.2d 238, 242 (Tex.1985), cert.
denied, 476 U.S. 1159, 106_S.Ct. 2279, 90 L.Ed.2d 721 (1986) ....................... 5

Fiduciary Mortgage Co. v. City Nat'/ Bank, 762 S.W.2d 196, 204 (Tex. App. -
Dallas 1988, writ denied) ................................................................... .4

Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.-El Paso 2005, no pet.) ........ . 5

Handley v. Handley (App. 13_Dist. 2003) 122 S.W.3d 904 ........... ... . .. .. ..... ... 11

Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923) .................................. 5


In Re marriage of Jackson, 506 S.W.2d 261at 266 .................................... 12

Jones v. Jones, 890 S.W.2d 471, 475_(Tex.App.-Corpus Christi 1994, writ
denied) ............................................................................... . ........ 11

Kimsey v. Kimsey, 965 S.W.2d 690, 702 (Tex. App.-El Paso 1998,
pet. denied) ............................. ...................................... .......... ..... 10

Morris v. Morris , 894 S.W.2d 859, 863 (Tex.App.-Fort Worth
1995,nowrit) ....... ... . ... . ................................................. . .. . .. . ... ... . . 10


                                                     lll
Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App.-Fort Worth 1963,
writ dism'd) ................................................................................. 12

Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981) ...... 6
Point Lookout West, Inc. v. Whortonl-742 S.W.2d 277, 278 (Tex.1987) ........... .4

Powell v. Powell:i._(App. 1Dist.1991) 822 S.W.2d 181 ............................... 11

Roberson v. Roberson, 420 S.W.2d 495 (Tex. Civ. App.-Houston
(14th Dist.) 1967, writ refd n. r. e.) ...................................................... 12

Rose v. Rose, 770 S.W.2d 938, 939-40 (Tex. App. 1989) ........................... 13


RULES

TEX. FAM. CODE§ 7.001 ........................................................................ .4, 12, 13

TEX. FAM. CODE§ 3.003 ................................................................................... 10

TEX. FIN. CODE §304.001 ............................................................ .13

TEX. R. CIV. PROC. 296 ........................................................................................ 4

TEX. R. CIV. PROC. 297 ........................................................................................ 4




                                                        IV
                        RESPONSE POINTS

l. The trial court did not abuse its discretion by dividing the community

   property of the marital estate in the 'just and right" manner set forth in the

   Texas Family Code §7.001 because it had sufficient information upon

   which to exercise its discretion.

2. The trial court did not abuse its discretion by dividing the community

   property of the material estate in a way that was manifestly unjust.

3. The Court properly characterized the cars at being a community debt but

   was under no obligation to characterize these gifts to the children as

   community assets.

4. The Court did not abuse its discretion in its division of the property since

   the law allows the trial court great altitude in dividing the state.

5. The Court did not abuse its discretion by specifying a "zero interest" in the

   money judgment awarded to Appellant, since it is presumed the Court

   considered the present value of the payment in exercising its just and right

   powers.




                                       v
                           STATEMENT OF FACTS

      In addition to the facts presented by the Appellant, the following facts were

also adduced at trial:

      The evidence established that there were four children born of the marriage of

Petitioner/Appellee, Jose Delgado and Respondent/Appellant, Martha Delgado, and

they were all adults. 2 RR 6. During the course of the marriage of the parties,

Jose Delgado has always worked and paid all the bills of the marital home and was

still partially supporting the adult children. Jose Delgado was paying the Mercedes

2012 driven by Jose Delgado, Jr. at $412.00 per month and was on the note for the

Hyundai Genesis automobile belonging to his son Brandon Delgado at a rate of

$242.00 per month. It was undisputed that both the vehicles were purchased by the

community and gifted to the children of the marriage. 2RR 8-11, 3 RR 35-36.

      The parties purchased the marital home located at 12303 Carlos Bambach, El

Paso, Texas during the curse of the marriage as well as the furniture in the home -

all paid by Jose Delgado 2 RR. 12-13. It was also undisputed that Martha Delgado

worked, sometimes for cash and sometimes at jobs earning between $10.00 and

$10.38 per hour. 2 RR 17; 3 RR 9-10. In addition, Martha Delgado testified that she

also worked for $1200.00 per month plus room and board for taking care of her

granddaughter. 2 RR 37-38.      Despite earning almost as much money as Jose

Delgado, Martha Delgado never contributed to paying the household expenses. 2


                                          1
RR 33. Testimony also established that during the course of the marriage, Jose

Delgado cleaned the marital home about 40 percent of time, and the adult children

sometimes cleaned their room establishing that the household duties were almost

evenly divided between the parties. 2 RR 35-36.

      The trial testimony established that the marital home was worth between

$80,000.00 and $90,000.00 dollars even though the CAD had it valued at

$94,000.00. 2 RR 12, 29. The testimony of Martha Delgado also established that

the only personal property she wanted from the marriage was a small couch, some

decorations, frames, her clothing and a Christmas tree. 3 RR 18. These items were

awarded to her by the Court. CR 44, 67-68.

      It was also established at trial that the cause of the separation and divorce of

the parties was occasioned by Martha Delgado's infidelity, which she admitted to

her son Jose Delgado Jr. 3 RR 29-31. Martha Delgado left the marital home in 2015

(a period of approximately 2 years by the time the case was heard) and had not

contributed to the family household expenses despite the fact that Brandon Delgado,

her son, was only 17 and living with Jose Delgado, his father, in the marital home.

3 RR 25, 38. Ms. Delgado was asked," Ma'am. It took you almost a year before

you had any contact with the children after you left, correct?" Ms. Delgado replied

that she was unsure of how long she had not had contact with her children after she

left the marital home. 3 RR 26.


                                          2
      The evidence regarding Jose Delgado's 40lk account established the it was

worth between $9,000.00 - $10,000.00 but had a loan taken against it in the amount

of $7,000.00 to pay for household expenses and expenses associated with the costs

of the divorce. 2 RR 30-31; 3 RR 36. Therefore, the net value of the 40 lk was

between $2,000.00 and $3,000.00 at the time of the divorce.

      The parties disputed what the credit cards which Martha Delgado took out

were used for, but it was undisputed that none of those debts had been paid for at

least two years and Martha Delgado had no intention of paying them and were

probably in collections. 2 RR 41-42; 3 RR 14.

      The trial court awarded each of the parties their own debts and further awarded

Mr. Delgado the $17,000.00 debt on his son's 2012 Mercedes automobile and the

debt on his sons 2014 Hyundai Genesis. He was also awarded the marital home but

was ordered to pay Martha Delgado $34,000.00 as her share in 136 equal monthly

payments of$250.00 CR44, 70-71.




                                          3
                                   ARGUMENT

   1. The trial court did not abuse its discretion by dividing the community
      property of the marital estate in the 'just and right" manner set forth in
      the Texas Family Code §7.001 because it had sufficient information upon
      which to exercise its discretion.

      a. Applicable Law

      When a party appeals from a nonjury trial, it must complain of specific

findings and conclusions of the trial court, because a general complaint against the

trial court's judgment does not present a justiciable question. Fiduciary Mortgage

Co. v. City Nat'l Bank, 762 S.W.2d 196, 204 (Tex. App.-Dallas 1988, writ denied).

Accordingly, findings of fact and conclusions of law are mandatory for a party to

file to avoid the onerous presumptions that apply in an appeal from a nonjury trial.

When an appellant does not request or file findings and conclusions by the trial court,

the appellate court presumes the trial court found all fact questions in support of its

judgment, and the reviewing court must affirm that judgment on any legal theory

finding support in the pleadings and evidence. Point Lookout West, Inc. v. Whorton:.

742 S.W.2d 277, 278 (Tex.1987). Tex. R. Civ. Proc. 296, 297.

      The Court's authority to decide the division of the marital estate is derived

from TEX. FAM. CODE ANN. §7.001, which establishes that, "In a decree of

divorce or annulment, the court shall order a division of the estate of the parties in a

manner that the court deems just and right, having due regard for the rights of each

party and any children of the marriage." The trial court has wide discretion in
                                           4
dividing the estate of the parties and that division should be corrected on appeal only

when an abuse of discretion has been shown. Hedtke v. Hedtke, 112 Tex. 404, 248

S.W. 21 (1923). A reviewing court's duty is to presume that the trial court properly

exercised its discretion in dividing the estate. Burney v. Burney, 225 S.W.3d 208,

215 (Tex.App.-El Paso 2006, no pet.). Therefore, the burden of demonstrating that

the trial court's division was an abuse of discretion belongs to the party challenging

the division. Chafino v. Chafino, 228 S.W.3d 467, 473 (Tex. App.-El Paso 2007, no

pet.)

        "Most of the appealable issues in a family law case are evaluated against an

abuse of discretion standard, be it the issue of property division incident to divorce

or partition, conservatorship, visitation, or child support." Garcia v. Garcia, 170

S.W.3d 644, 648 (Tex. App.-El Paso 2005, no pet.). An abuse of discretion is not

determined according to whether the reviewing court would have decided the issues

in the same way as the trial court, but whether the trial court acted without reference

to any guiding rules and principles. Id. at 649 (citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106

S.Ct. 2279, 90 L.Ed.2d 721 (1986)).        "If some evidence of a substantive and

probative character exists to support the trial court's decision, no abuse of discretion

has occurred." Bell v. Campbell, 328 S.W.3d 618, 620 (Tex. App.- El Paso 2010,

no pet.}


                                           5
      The trial court in a divorce case has the opportunity to observe the parties on

the witness stand, determine their credibility, evaluate their needs and potentials,

both social and economic. As the trier of fact, the court is empowered to use its legal

knowledge and its human understanding and experience. Although many divorce

cases have similarities, no two of them are exactly alike. Mathematical precision in

dividing property in a divorce is usually not possible. Wide latitude and discretion

rests in these trial courts and that discretion should only be disturbed in the case of

clear abuse. Murff v. Murff, 615 S. W.2d 696, 700 (Tex. 1981 ). The trial court is

always in the best position to observe the demeanor and personalities of the witness

and able to "'feel' the forces, powers, and influences that cannot be discerned by

merely reading the record." Bell, 328 S.W.3rd at 620.

      b. Legal Analysis

      The trial court properly evaluated the value of the parties' property and

liabilities with the evidence that was before the court. The undisputed evidence

provided to the court was that the marital home located at 12303 Carlos Bombach,

El Paso, Texas had a fair market value of between $80,000.00 to $90,000.00 even

though the tax appraisal district had it listed at $94,000.00. Based on the evidence

provided, the court could have found that this particular asset was worth $80,000.00.

The testimony also established that between $8,000.00 and $9,000.00 dollars were

still owed on the principal of the mortgage loan for the home. It is common


                                           6
knowledge and a generally accepted rule of thumb that in selling a home

approximately 10 percent of the sales price will be spent on real estate commissions

and closing costs. Therefore, the Court could have properly calculated that the net

value of the marital home was $72,000.00 minus $9,000.00 owed on the mortgage

or $63,000.00. The Court properly awarded the house to Appellee while providing

for payment of $34,000.00 to Appellant secured by a lien on the realty.

      Evidence adduced at trial further established that there were 3 motor vehicles

which are properly characterized as liabilities of the community estate. It was also

established that there was a $17,000.00 debt on the car that was gifted to the older

son Jose Delgado Jr., and undetermined recurring debt in the amount of $242.00 per

month for the vehicle gifted to the youngest son Brandon. The third vehicle was a

2012 Honda Pilot which Martha Delgado purchased and drove. There was testimony

that Jose Delgado drove a 2009 Honda Accord that was paid for. It is common

knowledge that motor vehicles are depreciating assets and that the rate of

depreciation quickly outstrips the amount owed under conventional financing.

Therefore, the Court could have properly concluded that the two motor vehicles that

belonged to the marital estate were not assets.

             In this property division the Court awarded the debt of both the 2012

Mercedes which was at about $17,000.00 and of the 2014 Honda Genesis to Jose

Delgado while awarding both the 2012 Honda Pilot and the debt to Martha Delgado.


                                          7
Appellant seems to complain that the Court abused its discretion by awarding the

debt on the cars gifted to the children of the marriage to Jose Delgado. The Court

certainly had a basis for awarding the debt since it was uncontroverted that Jose

Delgado had made himself liable on the debt by co-signing the loans. The Court

certainly understood that the monthly payment on the Mercedes Loan as $412 per

month and the payment forthe Genesis was $242.00 per month. While Mrs. Delgado

failed to testify as to what debt or payments were owed on the 2012 Honda Pilot she

possessed. The Court could reasonably concluded that there was no debt owed on

the 2012 Honda Pilot or that it was certainly far less than the vehicle debts awarded

to Jose Delgado.

      The amount owed on the Credit Card accounts which Martha Delgad testified

about was only known to her, the account holder, and she failed to put any evidence

regarding same. What is relevant, is that she testified that she had not made any

payments on such credit card accounts for at least two years and they were already

in collection. Therefore, the Court could have properly made a determination that

the amounts owed would remain unpaid and awarded the debts to the person who

incurred such debt. The Court certainly is not charged with divining the motives of

individuals to determine which debt will or will not be paid, it merely needs to divide

the assets and liabilities based on the evidence presented.

      Finally, the Court could have properly concluded that the present value of the


                                           8
40lk was $2,000.00 when dividing the marital estate. The Court's award of the 40lk

and the house to Appellee in light of the debt awarded to him, actually works out in

Martha Delgado's favor.

      It is not up to the Court to force parties to present evidence, this responsibility

falls squarely on the litigants, but Appellant seems to complain about her own failure

to present evidence.

      Appellant argues that the Court did not have sufficient information to divide

the assets and liabilities of the community estate and therefore is an abuse of

discretion. Because the appellant didn't obtain any findings of fact and conclusions

of law, Appellant's argument should more properly be characterized as a "no

evidence" point." Here there is an abundance of evidence from which the court

could have made the division it did. For example, taking the Appellant's argument

that the present value of the $34,000.00 judgment awarded to appellant in the

partition of the marital home is $25,893.79, one can also conclude that based on the

net equity value of the home of $63,000.00, that Appellee received $37,106.21 , an

$11 ,212.42 difference. However, when we add to Appellee the $2,000.00 value of

the 40lk but subtract the $17,000.00 Mercedes debt, his award of marital assets is

$22, 106.21. This represents a division of assets 54% to 46% in favor of appellant.

While it is true that Martha Delgado did not testify as to what amount was owed on

the 2012 Honda Pilot that she bought, drove and kept, and the only evidence


                                           9
regarding the Hyundai Genesis that was gifted to Brandon Delgado was that the

monthly payment was $242.00, the court could have properly concluded that Ms.

Delgado owed a de minimus amount on the automobile or would have otherwise said

so. The Court could have also concluded that Mr. Delgado wished to assume the

liability on the Hyundai Genesis based on the testimony presnted.

      Appellants real complain is that she failed to obtain findings of fact and

conclusions of law and now wants to force this Court to second guess the trial court.

   2. The trial court did not abuse its discretion by dividing the community
      property of the marital estate in a way that was manifestly unjust.

      For the foregoing reasons stated in point one, it is clear that the division of the
      marital estate was not manifestly unjust.

   3. The Court properly characterized the cars as being a community debt
      but was under no obligation to characterize these gifts to the children of
      the parties, as community assets.

   The well-settled law in Texas is that all property on hand at the dissolution of

marriage is presumed to be community property. Tex. Fam. Code Ann. §

3.003(a)(Vemon 1998); Kimsey v. Kimsey, 965 S.W.2d 690, 702 (Tex. App.-El

Paso 1998, pet. denied}. It is well established that debts contracted during the

marriage are presumed to be on the credit of the community and thus are community

obligations, unless it is shown that the creditor agreed to look solely to the separate

estate of the contracting spouse for satisfaction. Id., citing Cockerham v. CockerhamL

527 S.W.2d 162, 171 (Tex.1975}; Morris v. Morris, 894 S.W.2d 859, 863


                                           10
(Tex.App.-Fort Worth 1995, no writ); and Jones v. Jones, 890 S.W.2d 471, 475

(Tex.App.-Corpus Christi 1994, writ denied).         In the instant case, the parties

testified as to the purchase of the three motor vehicles in question occurring during

the marriage and are properly characterized as community debts.           It was also

undisputed the 2012 Mercedes was gifted to the oldest son Jose Delgado, Jr. and that

the 2014 Hyundai Genesis was gifted to the second son, Brandon Delgado. The

remaining 2012 Honda Pilot was driven, kept and paid for by Martha Delgado.

   "Gift" is transfer of property made voluntarily and gratuitously. Powell v. Powellj_

(App. 1 Dist. 1991) 822 S.W.2d 181, writ denied, rehearing of writ of error

overruled.   Even though the liability on the motor vehicles belonged to the

community, the motor vehicles gifted to the children did not. Once the gift was

made to the adult children it became their separate property. Trial court's exclusion

of value of vehicle in division of community property was not an abuse of discretion

in divorce proceeding; although former wife testified that they sold vehicle to wife's

daughter for $1,000 before parties' separation, husband testified that he was not sure

if vehicle was sold, and court may have believed wife's testimony and properly

excluded value of vehicle from community estate. Handley v. Handley (App. 13

Dist. 2003) 122 S.W.3d 904.

   Therefore, the Court divided the two motor vehicles remaining in the community

estate by awarding the 2009 Honda Accord to Jose Delgado and the 2012 Honda


                                          11
Pilot, to Martha Delgado.



   4. The Court did not abuse its discretion in its division of the property since
      the law allows the trial court great latitude in dividing the estate and is
      not proscribed from granting a money judgement secured by an owelty
      lien.

   TEX. FAM. CODE ANN. §7.001, establishes that, "In a decree of divorce or

annulment, the court shall order a division of the estate of the parties in a manner

that the court deems just and right, having due regard for the rights of each party and

any children of the marriage." The rest of the Texas Family Code is devoid of any

section ordering that the marital home be sold in order to effectuate a division of

community property. This is summed up in the case In Re marriage ofJackson, 506

S.W.2d 261at 266 where the court writes, "We find no requirement that in divorce

cases the court is obligated to divide the property 'in kind,' the only requirement

being a division in such a way as may seem just and right, and the court may be

justified in dividing property in a manner other than 'in kind' when due

consideration is given to such matters as the nature and type of particular property

involved and the relative conditions, circumstances, capabilities and experience of

the parties. See Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App.-Houston

(14th Dist.) 1967, writ refd n. r. e.); Mozisek v. Mozisek, 365 S.W.2d 669

(Tex.Civ.App.-Fort Worth 1963, writ dism'd). Since there is only one piece of

reality that was divided in this divorce, the Court could have either had it sold to
                                          12
third parties or award one party the property and the other a money judgment -

clearly the Court's decision avoided fractionalizing an item of the estate.


   5. The Court did not abuse its discretion by rendering a money judgement
      and specifying the method of payment pursuant to its authority under
      Tex. Fam. Code§ 7.001.


   Appellee urges the Court to consider whether adding post-judgment interest

under the Texas. Fin. Code §304.001 et seq, to a payment scheme determined by the

Court to be right and just, creates a conflict with Tex. Fam. Code Ann. §7.001. In

the instant case the rendered judgment of the Court states that Appellee/Petitioner is

to pay Appellant/Respondent $34,000.00 in 136 monthly payments of $250.00. It is

clear the Court was exercising its authority under the Tex. Family Code when

crafting the payment schedule. To impose interest payments above and beyond the

amounts ordered by the Court creates an inequity that the Court did not order.

In Rose v. Rose, 770 S.W.2d 938, 939-40 (Tex. App. 1989), the Court considered

this same question and looked to the divorce decree and noted as follows:

             "The relevant section of the property settlement agreement and

             divorce decree states:

             The court finds that the parties have acquired community property

             during their marriage and both parties have entered into an agreement




                                          13
                 for the equitable division of their community property and have asked

                 the Court to approve said community property agreement.

                 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by

                 the Court that the community property owned by the parties shall be

                 divided as follows, to-wit:

                 1.) The parties own as community property the military retirement

                 benefits of the Petitioner based upon twenty-one (21) years of military

                 service of the Petitioner while married to the Respondent for nineteen

                 (19) of said twenty-one (21) years. The parties agree and the Court,

                 accordingly, finds that the Respondent's community interest in said

                 military retirement benefits is in the sum of FORTY EIGHT

                 THOUSAND EIGHT HUNDRED EIGHTY FIVE and no/100

                 DOLLARS ($48,885.00)."

       Thereafter, the Rose Court agreed with the trial court and did not order that

post-judgment interest should be added to the trial court's judgment. Appellee

urges the Court to not adopt a construct which would require family law trial

judges to work backwards in calculating money awards in the division of

community property in order to contend with an ever changing post judgment

interest rate.




                                               14
                                         PRAYER

      Wherefore,    premises    considered,    Appellee/Petitioner,   Jose   Delgado,

respectfully prays the Court will affirm the judgment of the trial court.

                                               Respectfully submitted



                                               /s/    Mario A. Gonzalez
                                               MARIO A. GONZALEZ
                                               Counsel for Appellee
                                               TBN 08130710
                                               1522 Montana Ave., Suite 100
                                               ElPaso,Texas 79902
                                               Tel. (915) 543-9802
                                               Fax. (915) 543-9802




                                          15
            CERTIFICATE OF COMPLIANCE WITH RULE 9.4

      This brief filed in support of thereof comply with the type-volume limitations

of 9.4. The brief contains 3,496.00 words, excluding the parts of the brief exempted

by 9.4(1); and this brief complies with the typeface requirements of 9.4(e) because

this brief has been prepared in a proportionally spaced typeface using Microsoft

Word in Times New Roman, 14-point.


                                               Isl Mario A. Gonzalez
                                              MARIO A. GONZALEZ




                         CERTIFICATE OF SERVICE

      This is to certify that on May 24 2018, of the foregoing was served on James

D. Lucas by electronic means at jlucas2@elp.n.com.



                                               Isl Mario A. Gonzalez
                                              MARIO A. GONZALEZ




                                         16
