                                                                               ACCEPTED
                                                                          07-14-00339-CR
                                                             SEVENTH COURT OF APPEALS
                                                                       AMARILLO, TEXAS
                                                                     7/14/2015 5:19:51 PM
                                                                         Vivian Long, Clerk


                    NO. 07-14-00339-CR

                          IN THE                         FILED IN
                                                  7th COURT OF APPEALS
                    COURT OF APPEALS                AMARILLO, TEXAS
               SEVENTH JUDICIAL DISTRICT          7/14/2015 5:19:51 PM
                     AMARILLO, TEXAS                   VIVIAN LONG
             _________________________________            CLERK


                    CURTIS WOODRUFF
                             V.
                   THE STATE OF TEXAS
             _________________________________

        ON APPEAL FROM THE 140TH DISTRICT COURT
               OF LUBBOCK COUNTY, TEXAS
                  CAUSE NO. 2014-403,191
             _________________________________

                   BRIEF FOR THE STATE
             _________________________________

                                MATTHEW D. POWELL
                                Criminal District Attorney
                                Lubbock County, Texas

                                TRACI BOWMAN
                                COURTNEY GRAFFT
                                Assistant Criminal District Attorneys
                                (Trial Attorneys)

ORAL ARGUMENT WAIVED           JEFFREY S. FORD
                               Assistant Criminal District Attorney
                               Lubbock County, Texas
                               State Bar No. 24047280
                               P.O. Box 10536, Lubbock, TX 79408
                               Phone (806)775-1166
                               FAX: (806)775-7930
                               E-mail: JFord@co.lubbock.tx.us
                               (On appeal)
                               ATTORNEY FOR THE STATE
                         Identity of Parties and Counsel

Appellant:

       Curtis Woodruff

Appellant’s trial attorneys:

       Jesse Mendez, Attorney at Law, 2833 74th Street, Lubbock, TX 79423;
       phone (806)748-5287; fax (806)748-5256

       Marlise Hernandez Boyles, Law Office of Jorge E. Hernandez, P.O. Box
       2936, Lubbock, TX 79408; phone (806)765-7257

Appellant’s appellate counsel:

       Julie Panger, The Kiechler Law Firm, 619 Broadway Street, Lubbock, TX
       79401; phone (806)712-2889; fax (808)712-2529

State of Texas:

At trial:

       Traci Bowman & Courtney Grafft, Assistant Criminal District Attorneys,
       Lubbock County Criminal District Attorney’s Office, P.O. Box 10536,
       Lubbock, Texas 79408; phone (806) 775-1100; fax (806)775-7930

On appeal:

       Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County
       Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, Texas
       79408; phone (806) 775-1166; fax (806)775-7930

Trial Judge:

       Honorable Jim Bob Darnell, Presiding Judge, 140th District Court of
       Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite
       349, Lubbock, TX 79401
                                        i
                                                Table of Contents
                                                                                                               PAGE

Identity of Parties and Counsel ...................................................................................i

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................... v

Statement of the Case................................................................................................ix

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

         Suppression Hearing………………………………………………………...1

         Trial Testimony (of Officer Sims)……………………………………………5

Summary of the Argument......................................................................................... 7

Argument and Authorities……………………………………………………….....9

First Issue Presented (Responsive to Appellant’s First and Second Issues):

Appellant argues that the trial court erred in failing to suppress the statements and

physical evidence in the case because both the statements and the physical

evidence were obtained without his Miranda warnings first being given, and that

the evidence is legally insufficient to support the conviction but for the improper

admission of the statements and physical evidence. The trial court properly denied

the motion to suppress and allowed the admission of the statements because

Appellant was not in custody when the statements were given. Even if the

statements were improperly admitted, however, the physical evidence was still
                                                            ii
admissible because (a) Appellant was not being interrogated when he was asked

for consent to search; and (b) Appellant gave voluntary consent for a search of his

pockets and the bag and case he had been carrying. Furthermore, the evidence was

legally sufficient to support the conviction because a proper sufficiency review

accounts for all the evidence in the case—regardless of whether it was properly or

improperly admitted. Was Appellant in custody for Miranda purposes when he

gave the relevant statements in the case? If the statements were improperly

admitted at trial, was the consent to search and physical evidence nonetheless

admissible into evidence? Was the evidence legally sufficient to support the

conviction based on all of the evidence admitted at trial?.........................................9

   I. Miranda custody standard………………………………………………..10

   II. Appellant was not “in custody” within the meaning of Miranda………13

   III.    Even if Appellant was “in custody” when he was handcuffed, the
           officer’s action in asking for consent to search did not constitute
           “interrogation” for Miranda purposes……………………………….20

   IV.     Even if Appellant was “in custody” when some or all of the relevant
           statements were given, the physical evidence, i.e., the checkbook and
           other evidence, would not have been required to be suppressed…...21

   V. The evidence is legally sufficient to support the conviction……………25

       Conclusion…………………………………………………………………28




                                                 iii
Conclusion and Prayer ............................................................................................. 29

Certificate of Service ............................................................................................... 29

Certificate of Compliance…………………………………………………………30




                                                           iv
                               Table of Authorities

CONSTITUTIONAL PROVISIONS                                                   PAGE

U.S. CONST. amend. V………………………………………………………...10, 21

U.S. SUPREME COURT & FEDERAL CASE LAW

U.S. v. Bengivenga, 845 F.2d 593 (5th Cir.) (op. on reh’g en banc), cert. denied,
488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988)……………………………12

Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)……...12

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)……20

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)……….25

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per
curiam)…………………………………………………………………………….11

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).....passim

U.S. v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plur.
op.)……………………………………………………………………………21-22

Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)...19, 20

Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)
(per curiam)………………………………………………………………….........12

U.S. v. Stevens, 487 F.3d 232 (5th Cir.), cert. denied, 552 U.S. 936, 128 S.Ct. 336,
169 L.Ed.2d 236 (2007)…………………………………………………………...21

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)………………..17

Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)……11


                                         v
TEXAS CASE LAW

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011)……………………….26

Alford v. State, 358 S.W.3d 647 (Tex. Crim. App. 2012)………………………...13

Baker v. State, 956 S.W.2d 19 (Tex. Crim. App. 1997)…………………………..22

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)………………………18

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.)…………….25

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)…………………...26-27

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)……………...11, 12, 17

Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009)…………………..11, 12

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011)………………………….25

Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007)……………….12-14, 17

In re H.V., 252 S.W.3d 319 (Tex. 2008)………………………………………….22

In re J.T.M., 441 S.W.3d 455 (Tex. App.—El Paso, no pet.)…………………….24

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003)……………………..22, 24

Jones v. State, 7 S.W.3d 172 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d)...21

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)…………………………10

Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008)………………….19, 20

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011)………………………23

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012)………………………17-19

                                        vi
Ramirez v. State, 105 S.W.3d 730 (Tex. App.—Austin 2003, no pet.)…………...17

Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997)………………………..19

Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2012, no pet.)..18

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013)……………………….27

TEXAS RULES AND STATUTES

TEX. CODE CRIM. PROC. ANN. art. 38.22……………………………………...14, 19

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2(a)…………………………………...10

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5……………………………………...14

TEX. PEN. CODE ANN. § 32.51(b)(1)………………………………………………27

TEX. R. APP. P. 3.2………………………………………………………………..viii

TEX. R. APP. P. 44.2(a)…………………………………………………………….24




                                       vii
                                  NO. 07-14-00339-CR

                                        IN THE
                                  COURT OF APPEALS
                             SEVENTH JUDICIAL DISTRICT
                                   AMARILLO, TEXAS
                           _________________________________

                                  CURTIS WOODRUFF
                                           V.
                                 THE STATE OF TEXAS
                           _________________________________

                                 BRIEF FOR THE STATE
                           _________________________________



To the Honorable Court of Appeals:

          The State of Texas, the prosecuting authority in Cause No. 2014-403,191 in

the 140th District Court of Lubbock County, and Appellee before the Seventh

Court of Appeals, respectfully submits this brief in reply to the brief filed by

Appellant appealing his conviction for the offense of Fraudulent Use or Possession

of Identifying Information. The parties will be referred to as “Appellant” and

“State.”1




1
    TEX. R. APP. P. 3.2.
                                          viii
                               Statement of the Case

       Appellant was charged by indictment in Cause No. 2014-403,191 on August

5, 2014, with the offense of fraudulent use or possession of identifying

information, for an offense alleged to have occurred on October 1, 2013. (Clerk’s

Record (CR) p. 7). Following a two-day jury trial, from August 25-26, 2014,

Appellant was convicted of the offense by the jury. (CR p. 74) (Reporter’s Record

(RR) vol. 5, p. 29). The trial court assessed Appellant’s punishment at eighteen

(18) years imprisonment on August 27, 2014. (CR pp. 82-85) (RR vol. 6, pp. 14-

15). The trial court certified that Appellant has the right of appeal. (CR p. 78) (RR

vol. 6, p. 15).




                                         ix
                                 Statement of Facts

Suppression Hearing:

      Prior to the start of the voir dire examination, Appellant asked whether the

State was planning to introduce his un-Mirandized statements during trial. After

the State said that it was planning on introducing those statements, a hearing was

held (immediately after the jury was sworn in) to determine whether the statements

were admissible in the absence of the Miranda warnings having first been given.

(RR vol. 3, pp. 7, 113-58). Officer Brad Sims was called as the sole witness at the

hearing. (RR vol. 3, pp. 116-50).

      Officer Sims testified about the stop, search and seizure, and statements

given by Appellant. He was working patrol on the night of October 1, 2013, when

he received a call from dispatch directing him to the 2000 block of 10th Street for a

vehicle burglary possibly in progress. He was advised that an unknown male had

been walking up to cars pulling on door handles and had made entry into a vehicle

that was unlocked. When the 9-1-1 callers approached him, the man fled

northbound. (RR vol. 3, pp. 117-18). Sims arrived in the area looking for a black

male wearing a blue and white striped shirt, wearing a blue bandanna, and carrying

a black bag (which was the description given by dispatch). (RR vol. 3, p. 118).

Sims went from the 2000 block of 10th Street and started looking northeast, which

is the way he had been advised the unknown male had fled. (RR vol. 3, p. 119).
                                          1
Sims saw a man matching the description in the parking lot of the Stripes store at

Avenue Q and Marsha Sharp Freeway. (RR vol. 3, pp. 119, 133).

      Sims came in contact with the man after activating his emergency lights. The

man—who was identified in court as Appellant—was wearing a light gray and

blue striped shirt, a blue bandanna on his head, and had a black bag around his

shoulder, and was carrying what appeared to be a black briefcase in his hand. (RR

vol. 3, pp. 120-21, 134). Sims told Appellant to place everything that was in his

hands on the ground and walk towards him (based on his suspicion that Appellant

had just committed a vehicle burglary and had multiple things in his hand that he

could conceal weapons in, as well as the potential to conceal weapons in his

clothing. (RR vol. 3, pp. 121-22, 134). Sims conducted a pat-down search; nothing

was discovered during the pat-down search. (RR vol. 3, p. 122). Appellant was not

free to leave at that time. (RR vol. 3, p. 136).

      Sims then asked for and received verbal consent to search Appellant’s

pockets. Sims located two debit cards (a MasterCard and a Visa card) in

Appellant’s right front pocket. (RR vol. 3, pp. 122-23, 136). Sims noticed that the

names on the cards (Joe Ramirez and Jennifer Martinez) did not match Appellant.

When asked who the cards belonged to, Appellant advised that the cards belonged

to his girlfriend—though he said his “girlfriend’s” name was Jennifer, but did not

know her last name. (RR vol. 3, pp. 123, 137). When asked about the second card
                                            2
that had a male’s name on it, Appellant stated that he did not know whose card it

was and that he found the cards on the ground. (RR vol. 3, p. 124). After hearing

the inconsistent explanations, Sims placed Appellant in handcuffs to detain him

and escorted him back to his patrol car. Id. Sims placed Appellant in handcuffs for

the following reasons: (1) based on his belief that a crime had occurred; (2)

because Appellant was a suspect in that crime; (3) for Sim’s safety since he was

still by himself (since Appellant is a significantly larger man than Sims)2; and (4)

to limit Appellant’s use of his hands so he would not be able to fight or flee.

However, Appellant was not under arrest at that time since an investigation was

still ongoing. (RR vol. 3, p. 125).

       After Sims placed Appellant in his patrol vehicle, he wanted to further

investigate who the cards belonged to. Id. Appellant gave verbal consent to search

the bag and the case that he had had with him. (RR vol. 3, pp. 125-26, 137). The

drawstring Cowboys bag contained a knife and a checkbook with multiple checks

in it (eleven checks). The checks belonged to Harold and Shirley Dron. (RR vol. 3,

p. 126). Sims also located a small envelope from Chase bank with $25.00 dollars

inside of it, a window breaking tool, a Walgreen’s bag full of five unopened

Copenhagen cans, an HTC phone charger, a wheel lock key, an air purifier, and


2
  Officers Brennan Kent and Belinda House eventually arrived on the scene, but they arrived
after Appellant had been handcuffed. (RR vol. 3, pp. 143-44, 146, 150).
                                             3
loose change ($13.74 in all). (RR vol. 3, pp. 126-27, 141). Sims believed those

items were suspicious because they were all items that can immediately be located

in a vehicle. (RR vol. 3, p. 127). The black case contained a portable gas grill. (RR

vol. 3, p. 129).

       Sims Mirandized Appellant after locating the checks and other items inside

of the bag. Appellant waived his Miranda rights and agreed to speak to him. (RR

vol. 3, pp. 127-28, 143, 145). He was not under arrest at that time. (RR vol. 3, p.

127). Appellant told Sims that he was walking to the Avenue Q Wal-Mart when he

located the plastic bag by the Flying J with the two debit cards inside of the bag.

He pulled the debit cards out of the bag and placed them in his pocket. He then

walked to the Wal-Mart, used the change counter, and was walking back to the

Coronado Inn when he was stopped by Sims. (RR vol. 3, p. 128). He also said he

was never in the area of 10th Street. (RR vol. 3, p. 129). He said he was carrying

the portable gas grill because he and his girlfriend had just gotten into a fight and

she drove by and dropped it off with him because she was moving out. Id. After

attempting (without success) to locate the victims of the checkbook and debit cards

thefts, Sims placed Appellant under arrest. (RR vol. 3, pp. 129-30, 150).

       Following Officer Sims’ testimony, Appellant argued that the statements

should be suppressed because Sims should have Mirandized him either when he

had Appellant place his hands on the patrol car or when Sims placed Appellant in
                                          4
handcuffs and placed him in the patrol car since he was in custody (in that he was

not free to leave). (RR vol. 3, pp. 152-57). The State argued that this was a

temporary detention while Sims investigated the possible car burglaries. When

Sims found the debit cards, that was a continuation of the temporary detention to

find out information about why he could potentially have those cards. And, the

search of the bag and the case was done based on consent. (RR vol. 3, pp. 155-56).

The trial court ruled that it would “overrule your objection as far as the pat-down

and the consent to search his pockets and the consent to search the bag and case

that he had. The Court will sustain your objection as far as going into any

statements the Defendant made after the point in time he was Mirandized. Prior to

that time, the Court will allow the State to go into those statements that he made to

the officer during that investigative stop.”3 (RR vol. 3, p. 158).

Trial Testimony (of Officer Sims):

       Officer Sims was called as the second State’s witness during trial. He

received a call from dispatch at 1:20 a.m. on October 1, 2013, about a possible

burglary of a vehicle in progress. (RR vol. 4, p. 16). Sims found Appellant, as the

man matching the description provided him by dispatch, in the area of Marsha

Sharp and Avenue Q at the Stripes store. (RR vol. 4, p. 17). Sims activated his


3
  Appellant waived his objection to the admission of the post-Miranda statements prior to the
start of the guilt-innocence phase of trial. (RR vol. 4, pp. 6-7).
                                              5
lights, after which Appellant stopped, turned around, and looked at him. Sims had

Appellant put down the black bag and case he was carrying and walk to him. (RR

vol. 4, pp. 19, 21). Sims had Appellant place his hands on the hood of his patrol car

so he could perform a pat-down search. Sims was still by himself when he

performed the pat-down search. (RR vol. 4, p. 22). Appellant gave verbal consent

to search his pockets. Sims found two debits cards in Appellant’s right front pocket

that belonged to two separate people. (RR vol. 4, pp. 23-24). Sims asked Appellant

about the debit cards to determine if he had the right to have those cards on him.

Appellant said that the cards belonged to his “girlfriend.” When asked about the

card with the man’s name on it, he said he did not know who the other one was.

(RR vol. 4, pp. 24-25). Appellant then changed his story to say he found the cards

on the ground. (RR vol. 4, p. 25).

      Sims decided to place Appellant in handcuffs for his (Sims’) safety to detain

Appellant while he further investigated whether Appellant had the right to possess

those debit cards. He placed Appellant in the back of his patrol car. He did not

inform Appellant that he was under arrest at that time. (RR vol. 4, p. 26). Appellant

gave verbal consent to search the bag and the case he had been carrying. Id. Sims

first searched the drawstring bag. He found a knife, a checkbook for Harold and

Shirley Dron, an envelope from Chase Bank with $25 in it, a window breaking

tool, an open Walgreen’s bag with five unopened Copenhagen snuff cans inside of
                                          6
it, numerous miscellaneous receipts, a cashier’s check receipt from Bank of

America, a HTC phone charger, tire wheel lock key, an auto air purifier, and

$13.34 in loose change. (RR vol. 4, pp. 26-36). Inside of the black case was a

portable gas grill. (RR vol. 4, p. 37).

      After searching the bag and the case, Sims Mirandized Appellant because he

wanted to ask Appellant specific questions about an offense that he believed had

just occurred. (RR vol. 4, p. 37). Appellant waived his Miranda rights and agreed

to talk to him. Id. After Appellant provided his explanation (and after Sims

unsuccessfully tried to locate the victims), Sims placed Appellant under arrest. (RR

vol. 4, pp. 37-40, 67).



                              Summary of the Argument

      Appellant argues in his first issue that the trial court erred in failing to

suppress the statements and physical evidence in the case because the statements

and physical evidence were obtained without his Miranda warnings first being

given. The evidence was admissible because Appellant was not “in custody” when

the statements at issue were given—in that his freedom of movement had not been

restricted to the degree associated with an arrest.

      Assuming, arguendo, that some or all of the statements were improperly

admitted, neither the consent to search nor the physical evidence was required to
                                           7
be suppressed. First, the consent to search the bag and case—done after Appellant

was handcuffed and placed in a squad car—did not constitute “interrogation” for

Miranda purposes since the act of giving consent did not constitute an

incriminating statement. Second, the physical evidence was properly admitted

because the “fruit of the poisonous tree” doctrine does not require suppression of

the physical fruits (i.e., the checkbook and other items located within the bag and

case) of a suspect’s unwarned but voluntary statements. Because the consent to

search the bag and case and the physical evidence located within the bag and case

were properly admitted, any error from the “improper” admission of the statements

was harmless beyond a reasonable doubt.

      Appellant argues in his second issue that the evidence is legally insufficient

to support the conviction because the statements and evidence was improperly

admitted at trial. But, since a sufficiency review takes account of all of the

evidence admitted at trial, regardless of whether it was properly or improperly

admitted, the statements and physical evidence admitted during trial should be

considered in the sufficiency analysis. The evidence was legally sufficient since it

shows that Appellant possessed the victim’s checkbook without the victim’s

consent with the intent to harm or defraud her.




                                         8
                            Arguments and Authorities

                              First Issue Presented
               (Responsive to Appellant’s First and Second Issues)

Appellant argues that the trial court erred in failing to suppress the statements and

physical evidence in the case because both the statements and the physical

evidence were obtained without his Miranda warnings first being given, and that

the evidence is legally insufficient to support the conviction but for the improper

admission of the statements and physical evidence. The trial court properly denied

the motion to suppress and allowed the admission of the statements because

Appellant was not in custody when the statements were given. Even if the

statements were improperly admitted, however, the physical evidence was still

admissible because (a) Appellant was not being interrogated when he was asked

for consent to search; and (b) Appellant gave voluntary consent for a search of his

pockets and the bag and case he had been carrying. Furthermore, the evidence was

legally sufficient to support the conviction because a proper sufficiency review

accounts for all the evidence in the case—regardless of whether it was properly or

improperly admitted. Was Appellant in custody for Miranda purposes when he

gave the relevant statements in the case? If the statements were improperly

admitted at trial, was the consent to search and physical evidence nonetheless



                                          9
admissible into evidence? Was the evidence legally sufficient to support the

conviction based on all of the evidence admitted at trial?

             I. Miranda custody standard

         The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. CONST. amend. V. The

Miranda4 court stated that “the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

Those procedural safeguards, known as the Miranda warnings, are codified in

Texas as Article 38.22 § 2(a) of the Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. art. 38.22 § 2(a); see Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex.

Crim. App. 1996).

         The Supreme Court limited the application of Miranda warnings to

statements that stem from custodial interrogation. Custodial interrogation is

described as “questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Miranda at 444, 86 S.Ct. at 1612. Miranda warnings are required

“only where there has been such a restriction on a person’s freedom as to render

4
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
                                                10
him ‘in custody.’” Thompson v. Keohane, 516 U.S. 99, 107, 116 S.Ct. 457, 463,

133 L.Ed.2d 383 (1995), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.

711, 714, 50 L.Ed.2d 714 (1977) (per curiam).

      There are at least four general situations that may constitute custody:

      (1) when the suspect is physically deprived of his freedom of action in
      any significant way, (2) when a law enforcement officer tells the
      suspect that he cannot leave, (3) when law enforcement officers create
      a situation that would lead a reasonable person to believe that his
      freedom of movement has been significantly restricted, and (4) when
      there is probable cause to arrest and law enforcement officers do not
      tell the suspect that he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); accord Gardner v.

State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). For the first through third

Dowthitt factors, the restriction upon freedom of movement must amount to the

degree associated with an arrest as opposed to an investigative detention. For the

fourth Dowthitt factor, the officer’s knowledge of probable cause must be

manifested to the suspect, with such manifestation occurring either by transmission

of information substantiating probable cause by the officers to the suspect, or by

the suspect to the officers. Id. at 255. In the fourth factor, custody is not

automatically established merely because probable cause is manifested; rather,

“custody is established if the manifestation of probable cause, combined with other

circumstances, would lead a reasonable person to believe that he is under restraint

to the degree associated with an arrest.” Id. The appropriate inquiry is whether the
                                         11
suspect has been formally arrested or had his or her freedom of movement

restricted to the degree associated with a formal arrest. Stansbury v. California,

511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (per curiam);

Gardner, 306 S.W.3d at 293-94.

      The determination of whether a suspect was in custody must be made on an

ad hoc basis, after considering all of the objective circumstances of the

interrogation, not on the subjective views harbored by either the interrogating

officers or the person being questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. at

1529; Dowthitt at 255. A person is in “custody” only if, under the circumstances, a

reasonable person would believe that his freedom of movement was restrained to

the degree associated with a formal arrest. Stansbury at 322-25, 114 S.Ct. at 1528-

30; Herrera at 525. The “reasonable person” standard presupposes an innocent

person. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d

389 (1991) (emphasis taken from opinion); Dowthitt at 254. The “reasonable

person,” for purposes of the custody determination, must be “neutral to the

environment and to the purposes of the investigation—that is, neither guilty of

criminal conduct and thus overly apprehensive nor insensitive to the seriousness of

the circumstances.” U.S. v. Bengivenga, 845 F.2d 593, 596 (5th Cir.) (op. on reh’g

en banc), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).


                                        12
      When reviewing a trial court’s ruling on a Miranda-violation claim, an

appellate court conducts a bifurcated review: “it affords almost total deference the

trial judge’s rulings on questions of historical fact and on application of law to fact

questions that turn upon credibility and demeanor, and it reviews de novo the trial

court’s rulings on application of law to fact questions that do not turn upon

credibility and demeanor.” Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App.

2012). A trial judge’s ultimate “custody” determination presents a mixed question

of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

When a trial judge denies a motion to suppress and does not enter findings of fact,

the evidence is viewed in the light most favorable to the trial court’s ruling, with

the Court assuming that the trial court made implicit findings of fact that support

its ruling as long as those findings are supported by the record. Herrera, 241

S.W.3d at 527.

          II. Appellant was not “in custody” within the meaning of Miranda

      Appellant argues in his first issue that the trial court erred in failing to

suppress his un-Mirandized statements and the physical evidence obtained by

Officer Sims because those statements and evidence were obtained in violation of

Miranda. In particular, he argues that “[f]rom the time [Appellant] placed his

hands on the patrol vehicle, he was in a custodial interrogation, and he should have


                                          13
been read his Miranda rights.”5 He further argues that the “level of deprivation”

only increased because he “was later arrested, placed in the patrol car, and then

formally arrested and taken to jail.”6 The issue to be determined here is whether

Appellant was “in custody” when the statements at issue were given. If Appellant

was not “in custody” when the statements were given, then the statements were not

required to be suppressed because “nothing in [Article 38.22] precludes the

admission . . . of a statement that does not stem from custodial interrogation.”7

       The evidence adduced from both the suppression hearing and trial shows the

following:

    1. Officer Sims detained Appellant near the Stripes store at Avenue Q and

       Marsha Sharp Freeway based on reasonable suspicion that Appellant had

       been involved in several vehicle burglaries a few blocks away from that

       area;

    2. After seeing that Appellant was carrying a bag and a case, Sims had

       Appellant place the items on the ground and walk towards him due to

       concern that Appellant could have weapons in his possession;




5
  (Appellant’s Br. at 10).
6
  (Appellant’s Br. at 8).
7
  TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5. The Court of Criminal Appeals’ construction of
“custody” for purposes of Article 38.22 is consistent with the meaning of “custody” for Miranda
purposes. Herrera at 526.
                                              14
3. Sims had Appellant place his hands on the hood of his patrol car so he could

   perform a pat-down search of Appellant due to his reasonable belief that

   Appellant could have weapons in his possession;

4. A patdown search was conducted, but nothing was found during the

   patdown;

5. Appellant was not free to leave at that time because Sims was conducting an

   investigative detention;

6. Sims asked for and received verbal consent to search Appellant’s pockets.

7. When Sims searched Appellant’s pockets, he located two debit cards in

   Appellant’s right front pocket, neither of which had Appellant’s name on

   them;

8. After seeing that neither of the cards had Appellant’s name on them, Sims

   asked who the cards belonged to;

9. After Appellant gave inconsistent stories about who the cards belonged to

   and where he found them, Sims placed Appellant in handcuffs to detain

   him—in part because there was a safety issue since Sims was still the only

   officer on the scene at that time—and put Appellant in his patrol car;

10.Appellant was not under arrest when he was placed in handcuffs since the

   handcuffing was part of an investigative detention to further investigate

   whether Appellant had the right to possess the debit cards;
                                      15
   11.Appellant was not informed that he was being placed under arrest for

      anything at that time;

   12.After placing Appellant in his patrol vehicle, Sims asked for—and

      received—verbal consent to search the bag and case that Appellant had had

      with him;

   13.When the bag was searched, Sims found (among other items) a checkbook

      with Harold and Shirley Dron’s names inside;

   14.Appellant was then read his Miranda warnings since Sims wanted to ask

      Appellant specific questions about an offense that he believed had just

      occurred;

   15.Appellant waived his Miranda rights and agreed to speak to Sims; and

   16.After hearing Appellant’s story and unsuccessfully trying to locate the

      victims, Appellant was placed under arrest.

      The trial court properly denied Appellant’s verbal motion to suppress the

statements at issue. Though no findings of fact were filed, an implicit finding of

fact supporting the trial court’s ruling would be that Appellant was not “in

custody” at any time before the Miranda warnings were given because the

investigative detention had not evolved into a custodial detention. This implicit

finding of fact is supported by the record.


                                          16
         Appellant first argues that he was in custody when he was ordered to place

his hands on the patrol vehicle because he was “deprived of his freedom of action

in a very significant way—he was not free to leave when he was ordered to place

his hands on the patrol vehicle.”8 However, the proper standard for determining

custody is not whether the restriction on the detainee’s freedom of movement is

just “significant”; instead, it must be to the degree associated with an arrest. State

v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012), citing Dowthitt at 255;

Herrera at 525.

         Under the proper standard, Officer Sims’ actions in having Appellant place

his hands on the hood of his patrol car did not elevate the situation beyond an

investigative detention since it was part of a permissible Terry9 frisk—in that Sims

reasonably believed that Appellant may be carrying a weapon. See Ramirez v.

State, 105 S.W.3d 730, 739-40 (Tex. App.—Austin 2003, no pet.). Likewise, the

search of his pockets did not convert the investigative detention into a custodial

detention since it was simply a continuation of the investigative detention and did

not constitute a restriction upon freedom of movement that would be associated

with an arrest as opposed to an investigative detention.




8
    (Appellant’s Br. at 8).
9
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
                                                 17
          Appellant further argues that the deprivation of freedom of movement

continued when he was later “arrested” and placed in the patrol car before being

formally arrested.10 However, his argument seems to be predicated on his belief

that the officer’s act of handcuffing him and placing him in his patrol car equates

to custodial (as opposed to investigative) detention. But, placing handcuffs on a

defendant and placing him or her in a patrol car does not, in and of itself, mean that

a suspect is “in custody” for Miranda purposes. See Wert v. State, 383 S.W.3d 747,

754 (Tex. App.—Houston [14th Dist.] 2012, no pet.), citing Balentine v. State, 71

S.W.3d 763, 771 (Tex. Crim. App. 2002). Instead, handcuffing is “only one of a

range of relevant factors” to rely upon in determining whether a defendant is in

custody for Miranda purposes. See Ortiz, 382 S.W.3d at 374.

          Under the facts of this case, the handcuffing and placement of Appellant in

the patrol car did not convert the investigative detention into a custodial detention.

Sims handcuffed Appellant and placed him into the patrol car after hearing the

inconsistent explanations about the debit cards. Appellant was not told that he was

being placed under arrest or that Sims had probable cause to believe he had

committed an offense. Instead, Sims placed Appellant in handcuffs for officer

safety reasons because he suspected that a crime had occurred (but without

relaying that suspicion to Appellant) and he (Sims) was still by himself at the time.

10
     (Appellant’s Br. at 8).
                                           18
The handcuffing was part of the continued investigative detention so Sims could

further investigate whether Appellant had the right to possess the debit cards. Thus,

the act of handcuffing Appellant for officer safety reasons and placing him in his

patrol car was part of a valid investigative detention while the investigation into

Appellant’s legal right to possess the debit cards was ongoing.11

       Based on the objective circumstances of the interrogation, Appellant was not

“in custody” for Miranda or Article 38.22 purposes until after the bag had been

searched and the checkbook was located. That is because a reasonable person

would not believe that he or she was “in custody” until that point. Contrary to

Appellant’s contention,12 this was not a case where the practice of “question first

and warn later” was used in the hopes of obtaining incriminating evidence and then

delivering the Miranda warnings “midstream.”13 A “question first and warn later”

policy presupposes that the suspect is in custody when he or she is interrogated and


11
    See Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997) (finding that the
handcuffing of the appellant was part of a proper temporary investigative detention based on
officer safety considerations); cf. Ortiz at 374-75 (finding that the handcuffing had changed the
detention into a custodial arrest because the officers stated in the appellee’s presence that they
had found something illegal or dangerous on the appellee’s wife’s person and the officers
handcuffed the appellee at the same time his wife was handcuffed, thereby conveying to the
appellee the officers’ belief that the appellee was associated with his wife’s illicit behavior).
12
   (Appellant’s Br. at 7, 10-11).
13
   See Missouri v. Seibert, 542 U.S. 600, 609-17, 124 S.Ct. 2601, 2608-13, 159 L.Ed.2d 643
(2004) (discussing the police tactic of intentionally withholding Miranda warnings until after
interrogating and drawing out a confession before giving the Miranda warnings and then asking
for a waiver, after which the officers would elicit a subsequent incriminating statement—known
as the “question-first” tactic); Martinez v. State, 272 S.W.3d 615, 619-21, 626-27 (Tex. Crim.
App. 2008) (discussing the “two-step strategy” of interrogating first and warning later).
                                                19
is only given Miranda warnings after a confession is given.14 That debunked policy

was not at issue here, however, since Appellant was not in custody when he gave

the relevant statements at issue.

           III.    Even if Appellant was “in custody” when he was handcuffed,
                   the officer’s action in asking for consent to search did not
                   constitute “interrogation” for Miranda purposes

       For the reasons noted above, the handcuffing did not constitute “custody”

for Miranda purposes. As such, there is no need to consider whether Appellant had

been interrogated when he was asked for consent to search the bag and case. But,

even if he was in “custody” when he was handcuffed and placed in the back of the

patrol car, Miranda warnings were still not required to be given since he was not

being interrogated when he was asked for consent to search the bag and case.

       Interrogation, for Miranda purposes, “refers not only to express questioning,

but also to any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446

U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). However, the act

of asking for consent to search does not constitute interrogation since the act of

14
   See Seibert, 542 U.S. at 604, 124 S.Ct. at 2605 (“This case tests a police protocol for custodial
interrogation that calls for giving no warnings of the rights to silence and counsel until
interrogation has produced a confession.”) (emphasis added); Martinez, 272 S.W.3d at 627 (“In
this case, the officers did not apprise appellant of his Miranda rights when they began custodial
interrogation and failed to apply any curative measures in order to ameliorate the harm caused
by the Miranda violation.”) (emphasis added).
                                                 20
granting consent is not, in and of itself, an incriminating statement or testimonial

for Fifth Amendment purposes. See U.S. v. Stevens, 487 F.3d 232, 242 (5th Cir.),

cert. denied, 552 U.S. 936, 128 S.Ct. 336, 169 L.Ed.2d 236 (2007); Jones v. State,

7 S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

          Sims’ act of asking for consent to search the bag and case was not

reasonably likely to elicit an incriminating response from Appellant—and

Appellant’s act of granting consent to search did not constitute an incriminating

statement. After Appellant was placed in handcuffs and put in the patrol car, Sims

asked for and was granted verbal consent to search the bags.15 The next verbal

statement from Appellant that shows up in the record was Appellant’s waiver of

his Miranda rights and agreement to speak to Officer Sims.16 Since there was no

interrogation for Miranda purposes when Sims asked for and received consent to

search the bag and case, the granting of consent is admissible.

              IV.     Even if Appellant was “in custody” when some or all of the
                      relevant statements were given, the physical evidence, i.e., the
                      checkbook and other evidence, would not have been required
                      to be suppressed

          The failure to give a suspect the Miranda warnings does not require

suppression of the physical fruits of the suspect’s unwarned but voluntary

statements. U.S. v. Patane, 542 U.S. 630, 634, 124 S.Ct. 2620, 2624, 159 L.Ed.2d

15
     (RR vol. 3, pp. 125-26; vol. 4, p. 26).
16
     (RR vol. 3, p. 128; vol. 4, p. 37).
                                               21
667 (2004) (plur. op.); Jones v. State, 119 S.W.3d 766, 773 (Tex. Crim. App.

2003); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997); In re H.V., 252

S.W.3d 319, 329 (Tex. 2008). In Patane, the U.S. Supreme Court determined that

the nontestimonial fruit of a voluntary statement given in the absence of Miranda

warnings, i.e., the weapon that formed the basis of the defendant’s felon-in-

possession-of-firearm trial, was not required to be suppressed since the weapon

was recovered based on the suspect’s voluntary statements that he possessed it and

advising the officers where it could be found. Patane, 542 U.S. at 634-35, 643, 124

S.Ct. at 2624-25, 2630.

          Even if Appellant had been in custody for Miranda purposes when the

checkbook and other physical evidence was located during the searches, that would

not require suppression of the physical evidence since Appellant voluntarily

consented to a search of the bag from which the physical evidence at issue was

located (as discussed in the preceding section of this brief). The evidence shows

that Appellant gave voluntary consent to search both his pockets17 and the bag and

case he had been carrying.18 There was never any argument presented during the

suppression hearing that his consent to search was involuntary. While Appellant

did argue at the conclusion of the suppression hearing that he could not make the


17
     (RR vol. 3, pp. 122, 136; vol. 4, p. 23).
18
     (RR vol. 3, pp. 125-26) (RR vol. 4, p. 26).
                                                   22
decision to consent without first being provided his Miranda warnings,19 that is not

the proper standard for determining voluntariness of consent. Instead, the question

in determining whether consent to search is voluntary is “whether the person’s

‘will ha[s] been overborne and his capacity for self-determination critically

impaired,’ such that his consent to search must have been involuntary.” Meekins v.

State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011).

       In light of the evidence showing that Appellant was cooperative throughout

the investigation, consented both to a search of his pockets and the bag and case he

had been carrying, and that he waived his Miranda warnings and agreed to speak

to Officer Sims, the evidence shows that Appellant’s consent to the search of the

bag was voluntary.20 Thus, because the consent to search the bag was voluntary,

the physical fruits of the unwarned but voluntary statements (the checkbook and

the identity of the owner of the checkbook) did not require suppression, even if the

un-Mirandized statements did require suppression.

       Because the physical fruits of the unwarned but voluntary statements were

not required to be suppressed, any error in the admission of the un-Mirandized

statements was harmless beyond a reasonable doubt (under a constitutional harm



19
  (RR vol. 3, p. 158).
20
   See generally Meekins, 340 S.W.3d at 462-64 (determining that the consent to search was
voluntary in light of the defendant’s actions in cooperating with the officer by giving consent and
then stepping out of the vehicle so the officer could perform a search).
                                                23
analysis21) since “the record does not support a conclusion that the trial court’s

error probably caused the rendition of an improper judgment.”22 This is so because

the improper un-Mirandized statements (if any) amounted to evidence that

Appellant gave inconsistent statements about who the debit cards belonged to and

where he found them (since the act of consenting to a search did not constitute

interrogation). The testimony about the inconsistent statements, however, did not

relate to the issue of whether Appellant possessed identifying information of the

victim without her consent and with the intent to harm or defraud her—which was

proven not by the un-Mirandized statements, but by the testimony that Appellant

possessed the checkbook without the victim’s consent after the checkbook had

been stolen from her. Therefore, any error from the erroneous admission of the un-

Mirandized statements did not “materially affect[] the jury’s deliberations”23 and

was therefore harmless.




21
   See Jones, 119 S.W.3d at 777-83 (applying a Rule 44.2(a) constitutional harm analysis to a
Miranda violation).
22
   See In re J.T.M., 441 S.W.3d 455, 463-66 (Tex. App.—El Paso, no pet.) (finding that the error
from admission of an un-Mirandized statement where the defendant admitted to having
additional marijuana in the Chevy Tahoe was harmless because there was sufficient evidence
affirmatively linking the defendant to the marijuana found in the vehicle even without his post-
arrest statement—with some of that evidence being the physical fruits of the first statement (i.e.,
the marijuana which the defendant removed from his pocket and placed on the hood of the patrol
car)).
23
   Jones, 119 S.W.3d at 777.
                                                24
         V. The evidence is legally sufficient to support the conviction

      Appellant argues in his second issue that the evidence presented at trial was

insufficient to prove that Appellant fraudulently used or possessed identifying

information. In particular, he argues that without Officer Sims’ testimony, which

should have been suppressed, the evidence was insufficient to prove that Appellant

committed the offense of fraudulent use or possession of identifying information

because no witnesses were able to identify Appellant as the person who allegedly

burglarized vehicles.

      In assessing the sufficiency of the evidence, an appellate court views all the

evidence in the light most favorable to the verdict and determines, based on that

evidence and any reasonable inferences therefrom, whether a rational jury could

have found the essential elements of the offense beyond a reasonable doubt. Gear

v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). “Sufficient

evidence is ‘such evidence, in character, weight, or amount, as will legally justify

the judicial or official action demanded.’ In criminal cases, only that evidence

which is sufficient in character, weight, and amount to justify a factfinder in

concluding that every element of the offense has been proven beyond a reasonable

doubt is adequate to support a conviction.” Brooks v. State, 323 S.W.3d 893, 917

(Tex. Crim. App. 2010) (plur. op.) (Cochran, J., concurring). A sufficiency review
                                         25
determines whether “the necessary inferences made by the trier of fact are

reasonable, based upon the cumulative force of all the evidence.” Adames v. State,

353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

      Appellant’s sufficiency argument is contingent upon his assertion that

Officer Sims’ testimony was improperly admitted into evidence. However, that

claim lacks merit for the reasons discussed in the preceding sections of this brief.

Appellant’s statements during the course of the investigation were properly

admitted during trial because Appellant was not in custody at the time the

statements at issue were given. And, the physical evidence and consent to search

obtained during the course of the investigation were properly admitted, even if the

statements were not, because the fruit of the poisonous tree doctrine does not

require suppression of physical evidence obtained as a result of the un-Mirandized

statement.

      Additionally, even if the statements and/or physical evidence were

improperly admitted, that would still not affect whether the evidence was sufficient

to support the conviction. In conducting a legal sufficiency review, courts

“‘determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.’ [The] review of ‘all of the evidence’ includes evidence

that was properly and improperly admitted.” Clayton v. State, 235 S.W.3d 772,
                                         26
778 (Tex. Crim. App. 2007) (internal footnote omitted) (emphasis added); see also

Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013) (stating that in

conducting a legal sufficiency analysis, a reviewing court “must consider the

cumulative force of all the evidence, including improperly admitted evidence.”)

(internal footnote omitted). Thus, even if the statements and/or physical evidence

was improperly admitted, the legal sufficiency review would still include both the

statements and physical evidence.

          Under the proper standard, the evidence was legally sufficient to support the

conviction. To commit the offense of fraudulent use or possession of identifying

information (as alleged in the indictment here24), Appellant had to, with the intent

to harm or defraud another, and without the consent of Shirley Dron, possess

identifying information of Shirley Dron, i.e., her checkbook containing her name,

address, bank routing number, and account number. See TEX. PEN. CODE ANN. §

32.51(b)(1). As shown from the trial testimony, Appellant possessed Shirley

Dron’s checkbook with the intent to harm or defraud her, and that the possession of

the identifying information was without Ms. Dron’s consent.25 Therefore, based on

the evidence admitted at trial (regardless of whether it was properly or improperly

admitted), any rational trier of fact could have found the essential elements of the


24
     (CR p. 7).
25
     (RR vol. 4, p. 60).
                                            27
offense of fraudulent use or possession of identifying information beyond a

reasonable doubt.

                                    Conclusion

      The trial court properly denied Appellant’s verbal motion to suppress and

allowed the admission of the statements into evidence during trial because the

statements were not given while Appellant was “in custody” for Miranda purposes.

Even if he was “in custody” for Miranda purposes, however, Appellant’s consent

to search the bag and case and the physical fruits of the search were not required to

be suppressed, even if some or all of Appellant’s pre-Miranda statements were

required to be suppressed. Any error in the “improper” admission of the pre-

Miranda statements was harmless beyond a reasonable doubt because the physical

fruits of the search were not required to be suppressed—which was the evidence

that led to Appellant’s conviction for the offense of fraudulent use or possession of

identifying information. Furthermore, the evidence was legally sufficient to

support the conviction since all the evidence admitted during trial, regardless of

whether it was properly or improperly admitted, is considered in a legal sufficiency

review.

      Appellant’s first and second issues should be overruled.




                                         28
                              Conclusion and Prayer

       For the reasons stated above, no reversible error has been committed and the

State respectfully requests that the Court should affirm the judgment and sentence

in all things.

                                              Respectfully submitted,

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford
                                              Assistant Criminal District Attorney
                                              Lubbock County, Texas
                                              State Bar No. 24047280
                                              P.O. Box 10536
                                              Lubbock, Texas 79408
                                              (806)775-1166
                                              FAX (806)775-7930
                                              E-mail: JFord@co.lubbock.tx.us

                               Certificate of Service

      I certify that a true copy of the foregoing brief has been delivered to Julie
Panger, Attorney for Appellant, by e-mail delivery to julie@thelubbocklawyer.com
on July 14, 2015.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford
                                         29
                             Certificate of Compliance

     Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the
word count of the computer program used to prepare the foregoing State’s
Response, this document contains 6,354 words, inclusive of all portions required
by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford




                                         30
