                                                                           ACCEPTED
                                                                       01-15-00043-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  4/27/2015 3:16:31 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

                       NO. 01-15-00043-CR

                                                      FILED IN
                   IN THE COURT OF APPEALS     1st COURT OF APPEALS
                                                   HOUSTON, TEXAS
                                               4/27/2015 3:16:31 PM
                              FOR THE          CHRISTOPHER A. PRINE
                                                       Clerk
                   FIRST DISTRICT OF TEXAS

                       HOUSTON, TEXAS

                  DEJESUS FOBBS, APPELLANT

                                VS.

                THE STATE OF TEXAS, APPELLEE


                   BRIEF FOR THE APPELLANT



               TRIAL COURT CAUSE NUMBER 22960
                IN THE 356TH DISTRICT COURT OF
                    HARDIN COUNTY, TEXAS

SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155
joel@searsandbennett.com

Attorneys for DEJESUS FOBBS

ORAL ARGUMENT WAIVED
                         LIST OF PARTIES

Presiding Judge                     Honorable Steven Thomas

Appellant                           Dejesus Fobbs

Appellee                            The State of Texas

Attorney for Appellant              Ms. Stella Morrison
    (Trial only)                    4231 Lakeshore Drive
                                    Port Arthur, Texas 77642

                                    Mr. Bryan Laine
                                    1045 Redwood
                                    Kountze, Texas 77625

Attorney for Appellant              Mr. Joel H. Bennett
    (Appeal only)                   Sears & Bennett, LLP
                                    1100 Nasa Parkway, Ste 302
                                    Houston, Texas 77058

Attorney for Appellee               Mr. David Sheffield
    (Trial and Appeal)              Mr. Bruce Hoffer
                                    Ms. Kendra Walters
                                    Hardin County District
                                    Attorney’s Office
                                    P. O. Box 1409
                                    Kountze, Texas 77625

Attorney for Appellee               Ms. Sue Korioth
    (Appeal only)                   P.O. Box 600103
                                    Dallas, Texas 75630

                   CITATION TO THE RECORD

Clerk’s Record ...................... C.R. (volume and page)

Reporter’s R......................... R.R. (volume and page)


                             ii
                        TABLE OF CONTENTS

                                                     PAGE

List of Parties ..................................   ii

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

List of Authorities   ...........................     v

Statement of the Case   .........................     9

Appellant’s First Issue ........................     10

    THE TRIAL COURT ERRED IN FAILING TO INCLUDE
    AN APPLICATION PARAGRAPH FOR THE TEX. CODE
    CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT
    DID NOT OBJECTION TO THE ABSENCE OF THIS
    INSTRUCTION   AND   THEREFORE   MUST   SHOW
    EGREGIOUS HARM.

Statement of Facts .............................     10

Summary of Argument ............................     15

Argument and Authorities .......................     15

Appellant’s Second Issue ........................    27

    THE TRIAL COURT COMMITTED REVERSABLE ERROR
    BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS
    CONTEXTUAL EVIDENCE.    THE ADMISSION OF A
    FIREARM   WAS   NOT   NECESSARY  CONTEXTUAL
    EVIDENCE     AND     UNFAIRLY    PREJUDICED
    APPELLANT’S TRIAL.

Statement of Facts .............................     27

Summary of Argument ............................     27


                             iii
Argument and Authorities .......................   28

Appellant’s Third Issue ........................   35

    THE TRIAL COURT COMMITTED REVERSIBLE ERROR
    BY ADMITTING A NONCERTIFIED COPY OF A
    JUDGMENT DURING THE PUNISHMENT PHASE OF THE
    TRIAL.    THE JUDGMENT WAS NOT PROPERLY
    AUTHENTICATED.

Statement of Facts .............................   35

Summary of Argument ............................   37

Argument and Authorities .......................   37

Appellant’s Fourth Issue .......................   35

    THE EVIDENCE IS LEGALLY INSUFFICIENT TO
    PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A
    VALID PRIOR CONVICTION FOR THE USE OF AN
    ENHANCEMENT.   THE JUDGMENT STATES ON ITS
    FACE THAT IT COULD BE A STATE JAIL
    CONVICTION AND THEREFORE IT COULD NOT BE
    USED TO ENHANCE A NON-SATE JAIL FELONY
    OFFENSE.

Statement of Facts .............................   35

Summary of Argument ............................   37

Argument and Authorities .......................   37

Conclusion and Prayer ..........................   43

Certificate of Service .........................   43




                           iv
                    LIST OF AUTHORITIES


CASES
Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008) 18

Allen v. State, 253 S.W.3d at 264 (footnotes omitted) 18

Avila v. State, 18 S.W.3d 736, 741–42 (Tex. App.-San
 Antonio 2000, no pet.) ..............................38

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
 2010) ...............................................45

Brooks v. State, 323 s.w.3d 893, 912 (Tex. Crim. App.
 2010) ...............................................44

Brooks, 323 S.W.3d at 899 ............................45

Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.—
 Texarkana 2003) .................................36, 38

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17
 (Tex. Crim. App. 2007)) .............................45

Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim.
 App. 2012) ..........................................44

Garrett v. State, 875 S.W.2d 444, 447 (Tex. App.-Austin
 1994, pet. ref'd) ...................................28

Garza v. State, 963 S.W.2d 926, 931 (Tex. App.-San
 Antonio 1998, no pet.) ..........................30, 39

Hutch v. State, 922 S.W.2d 166, 172-73 (Tex. Crim. App.
 1996) overruled on other grounds Gelinas v. State, 398
 S.W.3d 708 (Tex. Crim. App. 2013) ...................16



                           v
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
 61 L. Ed. 2d 560 (1979) .........................44, 45

Jackson, 443 U.S. at 320 .............................46

Jackson, 443 U.S. at 326 .............................46

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
 1998) ...........................................30, 39

Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.
 1991) ...............................................16

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
 1997) ...........................................30, 39

Laster, 275 S.W.3d at 518 ............................46

Mays v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) id.
 at 86–87 n. 4 ...............................23, 24, 28

Middleton v. State, 125 S.W.3d 450, 457 (Tex. Crim.
 App. 2003) ..........................................17

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
 2000) ...............................................40

Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.—
 Houston [14TH Dist.] 2002, pet. ref’d)...............29

Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.
 App. 1996) ..........................................28

Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim. App.
 1992) ...............................................17

Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim. App.
 1993) ...............................................26



                           vi
Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App.
 2009) ...............................................17

Sakil v. State, 287 S.W.3d at 26 quoting Almanza v.
 State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) ...17

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72
 L. Ed. 2d 652 (1982) ................................46

Wagner v. State, No. 14-01-00392-CR, 2002 WL 31662410,
 at 4 (Tex. App. Nov. 27, 2002)(Not designated for
 publication) ....................................31, 40

Webb v. State, 36 S.W.3d at 182–83 ...............31, 39

Williams, 547 S.W.2d at 20 ...........................16

Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)
  ....................................................28

STATUTES
Tex. Code Crim. Proc. § 38.23 ...........12,   15, 16, 32

Tex. H & S Code 481.116(b) .......................43, 47

Tex. H & S Code 481.116(c) .......................... 47

Tex. Penal Code § 12.35(a) ...........................43

Tex. Penal Code § 12.42(d) .......................43, 47

former Tex. Penal Code § 12.42(a)(1)[now Tex. Penal
 Code § 12.425] ......................................43

RULES

Tex. R. App. P. 44.2(b) ..........................30, 38



                           vii
Tex. R. Crim. Evid. 404(b)(former) .......23, 25, 26, 29

Tex. R. Evid. 901 ................................35, 37

Tex. R. Evid. 901(a) .................................34

Tex. R. Evid. 901(b)(7) ..............................35

Texas Rule of Evidence 902(4) ........................35




                          viii
                    NO.   01-15-00043-CR



                           IN THE

                     COURT OF APPEALS

                          FOR THE

                FIRST DISTRICT OF TEXAS

                      HOUSTON, TEXAS


                DEJESUS FOBBS, Appellant

                             v.

              THE STATE OF TEXAS, Appellee


           Appealed from 356TH District Court
                of Hardin County, Texas
                    Cause No. 22960


                BRIEF FOR THE APPELLANT


TO THE HONORABLE COURT OF APPEALS:

    Now comes DeJesus Fobbs, by and through his attorney

of record Joel H. Bennett, of Sears & Bennett, LLP, and

files this brief.



                              9
                       STATEMENT OF THE CASE

      Appellant was charged by indictment with Possession

of a Controlled Substance, to-wit cocaine, in the amount

of four grams or more but less than two hundred grams.

C.R.—2.    Appellant pled not guilty to the allegation and

a trial by jury began on December 15, 2014.                    R.R.V—1;

R.R.VI—35-36.          After    hearing     the    evidence    and     the

argument   of    counsel,      the   jury   returned     a   verdict    of

“Guilty” on December 16, 2014.                  R.R.VI—221; C.R.—125.

The Defendant elected for the jury to assess punishment,

and after hearing evidence and argument of counsel on

the    issue     of    punishment,        the     jury   assessed      his

punishment       at        ninety-nine      (99)     years     in      the

Institutional Division of Texas Department of Criminal

Justice    and        no     fine.    R.R.VII—130-131;        C.R.—131.

Judgment and Sentence was entered and signed on December

17, 2014; as well as the trial court’s certification of

Defendant’s right to appeal. C.R.—154-155, 142.                     Notice

of Appeal was timely filed on December 17, 2014 and

again on December 18, 2014.           C.R.—143, 156.
                                     10
                        APPELLANT’S FIRST ISSUE

      THE TRIAL COURT ERRED IN FAILING TO INCLUDE
      AN APPLICATION PARAGRAPH FOR THE TEX. CODE
      CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT
      DID NOT OBJECTION TO THE ABSENCE OF THIS
      INSTRUCTION   AND   THEREFORE   MUST   SHOW
      EGREGIOUS HARM.

                             STATEMENT OF FACTS

      The   Charge      of    the    Court       during      guilt   innocence

contained a general instruction to the jury:

      “You have a right to consider all of the facts that

are   shown   by    the      evidence,      and    to     draw   natural    and

reasonable inferences from such facts. You alone have

the authority and duty to determine what the facts are

in this case. No evidence obtained by an officer or

other   person     in     violation        of    any    provisions     of   the

Constitution       or   laws    of   the        State   of    Texas,   or   the

Constitution or laws of the United States of America,

shall be admitted in evidence against the accused on the

trial of any criminal case, [sic] If you believe or have

a reasonable doubt that the evidence was obtained in

violation of these provisions, then and in such event,


                                      11
you shall disregard any such evidence so obtained. In

evaluating the evidence, you must totally disregard what

you believe is my opinion about any factual matter.”

C.R.—121.

    The     Charge   of   the   Court        did   not   contain   an

application paragraph applying the general Tex. Code of

Crim. Proc. § 38.23 instruction.         C.R.—119-124.

    Officer Travis Hartless was a patrolman with the

Silsbee Police Department.           R.R.VI—44.     On the evening

of May 19 and the morning of May 20, 2014, he was on

patrol.     R.R.VI—46.    He had been notified about some car

burglaries in the area.         R.R.VI—46-47. About 2:20 am,

Officer Hartless came to 345 West Avenue L during his

routine   patrol.     R.R.VI—48.        He    noticed    an   interior

light on inside a vehicle about 2:30 a.m. and he stopped

to investigate. R.R.VI—49-50.          He walked up to the car

and knocked on the glass; the person in the car rolled

down the window about three inches.            R.R.VI—53.     Officer

Hartless asked the person in the vehicle, “What’s going

on?” and he could also smell the odor of burnt marijuana
                                12
coming out of the vehicle.               R.R.VI—54. Officer Hartless

asked the person to step out of the car and when he did,

Officer     Hartless      recognized      Appellant.    R.R.VI—55.    He

patted Appellant down for weapons, handcuffed him, and

placed him in the back of the patrol car.                  R.R.VI—55-57.

Officer Hartless then searched the car due to the odor

of burnt marijuana.         R.R.VI—57.

       Officer Hartless testified that he saw bags of Kush,

K2,    in   the    open     top    center    console,      a    synthetic

marijuana.        R.R.VI—62.       He believed it was synthetic

marijuana but the substance was not tested.                    R.R.VI-64.

He also found a small bag of what the officer believed

to be marijuana.           R.R.VI—65.       At this point, he goes

back to Appellant and searches him.                 R.R.VI—65.    During

the search, he located a magazine with ammunition in it

in Appellant’s pocket.             R.R.VI—66.        Officer Hartless

then    searched    under    Appellant’s      cap    and    located   two

baggies     of    suspected       cocaine    on     Appellant’s    head.

R.R.VI—67-68.      Officer Hartless goes back to the vehicle

to search further and locates a handgun.               R.R.VI—73-74.
                                    13
      Officer Hartless took a photograph of the money,

handgun,      magazine,       Kush,     cocaine,        and   marijuana      he

recovered from Appellant and the vehicle; the photograph

is State’s Ex. # 3.         R.R.VI—77-78, 79.

      During cross-examination, Officer Hartless admitted

that he took no photographs at the scene. R.R.VI—88.

There are no pictures of any burnt marijuana.                        R.R.VI—

88.      Officer      Hartless      testified          that   he   saw    burnt

marijuana but he did not recover the burnt marijuana.

R.R.VI—89.

                         SUMMARY OF ARGUMENT

      The    trial    court    erred        in   failing      to   submit   an

application        paragraph        for      the       exclusionary       rule

instruction.       The jury was properly instructed about the

general      provision      that      they       may    not   consider      any

evidence      found    by     the     police      in    violation    of     the

Constitution or laws of the United States or State of

Texas.       But the application paragraph authorizes the

jury to act and applies the law to the facts of this

case.       Appellant did not object at trial and therefore,
                                       14
he must show egregious harm that deprived him of a fair

and impartial trial.

                    ARGUMENT AND AUTHORITIES

    The defense in Appellant’s case centered around the

legality of the search of Appellant and the subsequent

discovery     of   cocaine     in    Appellant’s        cap.      The    trial

court properly instructed the jury on the general law

regarding the exclusionary rule of Tex. Code Crim. Proc.

§ 38.23.       But, the application paragraph of a jury

charge is the portion of the charge that authorizes the

jury to act.         A proper application paragraph should

instruct    the    jury   on      the        legal   consequences    of    the

facts as they find them to be (or a failure to prove

certain facts beyond a reasonable doubt) and how those

facts   are    applied       to     the       applicable    law     in    this

particular case.

    “[I]t is important to note that the error occurred

in the application paragraph. The application paragraph

is that portion of the charge which authorizes the jury

to act. Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim.
                                        15
App.     1991).      Consequently,          even      though   the    charge

elsewhere contained a correct statement of art. 38.23,

that instruction did not authorize the jury to consider

or not consider the evidence obtained from appellant's

stop. It is not sufficient for the jury to receive an

abstract instruction on the law. Williams, 547 S.W.2d at

20. An abstract charge does not inform the jury of what

facts,       if   found   by     it,        would     permit   the    jury's

consideration of the contested evidence. Ibid. Rather,

the authority to consider or not consider the evidence

obtained      from   appellant's        stop    came     solely    from   the

erroneous application paragraph. The Court of Appeals

did    not    consider    that   the        correct    statement     of   art.

38.23 did not authorize the jury to correctly apply the

law.”        Hutch v. State, 922 S.W.2d 166, 172-73 (Tex.

Crim. App. 1996) overruled on other grounds Gelinas v.

State, 398 S.W.3d 708 (Tex. Crim. App. 2013).

       The Court of Criminal Appeals has consistently held

that an application paragraph is a necessary portion of

the charge, “It is true that we have held that a jury
                                       16
charge should contain the abstract portion of the charge

and the application portion. Riley v. State, 830 S.W.2d

584, 586–87 (Tex. Crim. App. 1992).” Middleton v. State,

125 S.W.3d 450, 457 (Tex. Crim. App. 2003).

    Appellant      failed     to    object      to   the      erroneous

instruction at trial.        As such, the standard of review

upon appeal to entitle him to a reversal is higher.

When reviewing complaints regarding the jury charge,

the first step is to determine whether there was error

in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex.

Crim.     App.    2009).    If     there       was   error     and   no

corresponding       objection,          “the     error       must    be

‘fundamental,’ and reversal is required ‘only if the

error is so egregious and created such harm’ that the

defendant did not have a fair and impartial trial.”

Sakil v. State, 287 S.W.3d at 26 quoting Almanza v.

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

    The    test    for     evaluating      whether    a      particular

defendant suffered fundamental error that deprived him

of a fair and impartial trial was explained in Allen v.
                                   17
State, 253 S.W.3d 260 (Tex. Crim. App. 2008).                           The

Court    of    Criminal     Appeals      held,    “In    examining      the

record for egregious harm, vel non, a reviewing court

should    consider...1)       the   entire     jury     charge,    2)   the

state of the evidence, including the contested issues

and the weight of the probative evidence, 3) the final

arguments of the parties, and 4) any other relevant

information revealed by the record of the trial as a

whole. Jury charge error is egregiously harmful if it

affects       the    very   basis   of   the     case,    deprives      the

defendant of a valuable right, or vitally affects a

defensive theory.”           Allen v. State, 253 S.W.3d at 264

(footnotes omitted).

    The factors to be reviewed in determining the harm

in this case weigh heavily in favor of finding harm to

Appellant.          The charge as a whole simply asked the jury

to decide whether or not Appellant possessed cocaine or

whether they had a reasonable doubt thereof.                      This was

the sole question posed to the jury.               The central issue

of the defense was that the State failed to prove to the
                                    18
jury the factual issues regarding the legality of the

search. Namely, the defense focused on the officer’s

failure    to    preserve     any        alleged     burnt     marijuana.

Appellant’s      vehicle    was   searched         after     the        officer

claimed he smelled burnt marijuana.                  He testified that

he saw the burnt marijuana but failed to document that

through a photograph or even recover the evidence that

would support his search.

     The defense’s argument at the guilt-innocence phase

of   the   trial    was    that     the     State    failed        to     bring

sufficient evidence to support a legal search. R.R.VI—

208. The defense argued that no arrest should be made

without    probable    cause.            R.R.VI—213.         The        State’s

response to the defense’s argument was just believe the

officer.        R.R.VI—214.       “Isn’t      that     what    we        want?”

R.R.VI—214.

     The jury was never given the opportunity to decide

the central issue in the case.             Did or did the State not

prove beyond a reasonable doubt the existence of the

burnt marijuana that led to the search and then the
                                    19
arrest that led to the discovery of the cocaine.                    Jury

charge error is egregiously harmful if it affects the

very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory.

The failure of the trial court to provide the avenue for

the jury to act in this case deprived Appellant of his

right    to   have     the   jury    decide         the   factual   issue

surrounding the legality of the search. This failure

strikes at the very heart of the defensive issue of this

case.     The failure to provide the application paragraph

prevented the jury from deciding all the factual issues

in this case and thereby deprived Appellant of a fair

trial.

    For    all   the   foregoing         reasons,    Appellant’s    First

Issue should be sustained, Appellant’s case be reversed,

and the case remanded for further proceedings.

                     APPELLANT’S SECOND ISSUE

    THE TRIAL COURT COMMITTED REVERSABLE ERROR
    BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS
    CONTEXTUAL EVIDENCE.    THE ADMISSION OF A
    FIREARM   WAS   NOT   NECESSARY  CONTEXTUAL
    EVIDENCE     AND     UNFAIRLY    PREJUDICED
                                    20
      APPELLANT’S TRIAL.

                         STATEMENT OF FACTS

      During   the      officer’s        search   of    Appellant      and

Appellant’s    vehicle,     he   discovered       a    magazine   loaded

with ammunition in Appellant’s pocket and a handgun in

the vehicle.       R.R.VI—66, 74.         Appellant had objected to

the admission any evidence of a gun during his motion in

limine,     then   he    renewed       his   objection     during      the

testimony, and again when the State offered pictures of

the weapon and magazine.            R.R.VI—29-20, 63-64, 75, and

78-79.      The trial court stated that he would take it

under consideration during the hearing on the Motion in

Limine,     then   overruled     the     objections     when   Appellant

renewed the objections during the testimony.                   R.R.VI—30,

64.      The   trial    court    specifically         stated    that   the

evidence was contextual.             R.R.VI—64.        When the State

moved to admitted State’s Exhibits 4 and 3 (pictures of

the   gun    and   magazine),      Appellant      again   renewed      his

objection to the introduction of the gun and magazine.

R.R.VI—75, and 78-79.        The trial court specifically held
                                    21
that    Appellant          had     preserved    his    objection     and    his

objection       was    abundantly       clear.         R.R.VI—78-79.        The

trial court again overruled his objection.

                             SUMMARY OF ARGUMENT

       An extraneous offense is admissible as contextual

evidence    if        it    is     necessary     to    provide     background

information or if the narration of the events would make

little     or    no        sense    without     the     admission    of     the

extraneous offense.                The events surrounding Appellant’s

arrest for possession of cocaine could have easily and

fully been described to the jury without the admission

of the handgun.

                           ARGUMENT AND AUTHORITIES

       Extraneous offenses may be admitted during a trial

if they are contextual evidence of the charged offense

and the introduction of such evidence is necessary to

the    jury’s    understanding          of     the    current    offense.   In

Appellant’s case, the State was allowed to introduce

evidence,       over        objection,       that      Appellant     was    in

possession of a magazine loaded with ammunition and a
                                        22
pistol was found in the vehicle where he was sitting

when the officer approached.        The State offered this

evidence as contextual evidence.      The trial court agreed

and admitted the evidence.

    Not all extraneous acts are admissible just because

they were discovered at the same time or occurred during

the same criminal episode.        The test for whether such

evidence is properly admissible is whether or not the

such evidence is “necessary” to the jury’s understanding

of the events. If it is not necessary, the evidence

should be excluded.

        “The   evidence      pertaining    to    appellant's

    possession, use and sale of marijuana constitutes

    ‘same transaction contextual evidence’ rather than

    ‘background contextual evidence’, as such evidence

    is of ‘acts, words and conduct’ of appellant at the

    time of his arrest. See [Mays v. State, 816 S.W.2d

    79 (Tex. Crim. App. 1991) id. at 86–87 n. 4. Same

    transaction contextual evidence is admissible as an

    exception under [Tex. R. Evid.] Rule 404(b) where
                             23
such     evidence          is     necessary       to      the      jury's

understanding of the instant offense:

       Same transaction contextual evidence is deemed

admissible      as         a    so-called       exception       to     the

propensity          rule        where     ‘several        crimes       are

intermixed,         or     blended       with    one    another,        or

connected so that they form an indivisible criminal

transaction, and full proof by testimony, whether

direct or circumstantial, of any one of them cannot

be   given    without          showing   the     others.’    [citation

omitted]      The     reason       for    its    admissibility         ‘is

simply     because         in     narrating       the     one    it     is

impracticable to avoid describing the other, and

not because the other has any evidential purpose.’

[citation omitted] Necessity, then, seems to be one

of the reasons behind admitting evidence of the

accused's acts, words and conduct at the time of

the commission of the offense. [citation omitted]

[Mays    v.   State,       816    S.W.2d    79    (Tex.     Crim.     App.

1991) Id. at 86–87 n. 4.
                                  24
       “Necessity,            then,    is    an    ‘other   purpose’       for

which        same    transaction            contextual        evidence      is

admissible under Rule 404(b). Only if the facts and

circumstances            of    the     instant      offense    would      make

little or no sense without also bringing in the

same    transaction            contextual         evidence,    should      the

same transaction contextual evidence be admitted.

       “In     narrating          appellant's         arrest       for     the

instant        offenses           it        would     not      have       been

impracticable to avoid describing the recovery of

the    marijuana         and     appellant's         confessed      use    and

sale of marijuana. See id. The State could simply

have    described         the     events      of    appellant's       arrest

without       mentioning         that       marijuana    was      found,    in

addition            to         methamphetamine.             The       jury's

understanding            of    the     instant      offenses      would    not

have    been        impaired          or    clouded     had     the      State

described appellant's arrest without including the

evidence       concerning         the       marijuana.      Such   omission

would not have caused the evidence regarding the
                                      25
     instant     offenses          (burglary     and        possession       of

     methamphetamine)         to     appear     incomplete.         Further,

     omission        of      the     objectionable            portion        of

     appellant's          written    confession        would     not       have

     rendered the remaining portions of the confession

     confusing       or     questionable.        We     hold     that      the

     evidence        concerning        the      marijuana        was        not

     ‘necessary’      to     the    jury's     understanding         of    the

     offenses        of       burglary         and      possession           of

     methamphetamine and was therefore not admissible as

     same transaction contextual evidence under Rule of

     Criminal    Evidence          404(b). The        court    of    appeals

     erred in holding that such evidence was admissible

     as “res gestae” of the offense.”

     Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim.

App. 1993)(Emphases added).

     Similarly       in     this    case,     the     State’s       case     of

Possession of Cocaine would have not been impacted.                         The

State’s description of the event was not dependant upon

or   related    to    the     possession       of     the     magazine      and
                                     26
firearm.     Officer Hartless testified that he approached

the vehicle out of concern for car burglaries in the

area,   he    smelled    the    odor        of    burnt     marijuana,     and

searched     the    vehicle    due     to    the     odor    of   marijuana.

After discovering synthetic marijuana and marijuana, he

searched     Appellant    and    discovered          cocaine      inside   the

baseball cap Appellant was wearing.                    R.R.VI—48-49, 50,

54, 61-62, 65, 68.

    The handgun was not found until the officer decided

to inventory the vehicle, which was after the officer

had located the cocaine.              R.R.VI—74.           The magazine was

located in Appellant’s pocket after the officer located

the marijuana but prior to the discovery of the cocaine.

R.R.VI—66.         The State was able to fully describe why he

approached     Appellant,       why    he        decided    to    search   the

vehicle, and then why he further searched Appellant and

located the cocaine.            All of this testimony was done

without any need to mention the loaded magazine located

in Appellant’s pocket and prior to the discovery of the

firearm.
                                      27
     “Same transaction contextual evidence is admissible

only when the offense would make little or no sense

without also bringing in the same transaction evidence.

Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000);

Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.

App. 1996). Nor do we believe that the evidence of the

shotgun and the marijuana was so intertwined with the

issue of consent that the jury could not understand the

testimony without it. See Garrett v. State, 875 S.W.2d

444, 447 (Tex. App.-Austin 1994, pet. ref'd). On the

contrary, the testimony concerning the consent of the

officers     could      have    been         easily    understood,     and

certainly more clear, without the introduction of the

extraneous evidence. See Wyatt, 23 S.W.3d at 25. And, it

would     have   been    a     simple       matter    to    describe   the

circumstances surrounding the entry without mentioning

the shotgun under the bed and the marijuana cigarette

burning in the ashtray. See Mayes, 816 S.W.2d at 86 n.

4.   In   short,   because      the        evidence   did   not   directly

relate to a fact of consequence in the case and was
                                      28
intended to prove that appellant acted in conformity

with a(bad) character, the evidence fell within Rule

404(b)'s    prohibition.        Moreover,        the      shotgun         was   not

necessary to the jury's understanding of the offense or

the   circumstances          concerning       the     entry;     it       was   not

admissible as an exception under Rule 404(b). The trial

court erred in admitting the evidence.”

      Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.—

Houston [14TH Dist.] 2002, pet. ref’d)(Emphasis added).

      As in the Peters case, the State could have—and in

fact did—tell the entire factual basis that led to the

discovery    of    the       cocaine        without      the    necessity        of

introducing evidence of the handgun.                       The cocaine was

found   prior     to    the    officer       locating      the       gun.       Any

argument    that       the    introduction          of   the     handgun        was

necessary to the search for and locating of the cocaine

is simply false and unsupported by the facts.                             The fact

that the officer found a magazine with ammunition is

also without consequence to the finding of the cocaine.

Clearly,    the    officer      was     not    looking         for    a    firearm
                                       29
inside    Appellant’s    cap.      Therefore,       the   trial   court

erred in admitting evidence of the gun and the magazine

as contextual evidence.

       “Having found error in the trial court's ruling, we

must    determine    whether     appellant    was    harmed    by      the

improper     admission      of    the    evidence.        Because      no

constitutional error is involved when evidence of an

extraneous offense is admitted without notice, we look

to whether the error affected appellant's substantial

rights. Tex. R. App. P. 44.2(b). The substantive right

affected by the admission of an extraneous offense is

the right to a fair trial. See Garza v. State, 963

S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.).

An error affects a substantial right when the error had

a substantial and injurious effect or influence on the

jury's    verdict.   King   v.    State,     953    S.W.2d   266,      271

(Tex. Crim. App. 1997). If the error had no influence

or   only   a   slight   influence      on   the    verdict,      it    is

harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). However, if we harbor ‘grave doubts’
                                  30
the error did not affect the outcome, we must treat the

error as if it did.” See Webb v. State, 36 S.W.3d at

182–83.”        Wagner v. State, No. 14-01-00392-CR, 2002 WL

31662410, at 4 (Tex. App. Nov. 27, 2002)(Not designated

for publication).

       The    State    compounded   the   harm   of   the   erroneous

admission of the firearm and magazine by emphasizing the

presence of the gun and magazine during final argument.

R.R.VI—215-216.         The State argued that the officer was

keeping “you” (the jury) safe from people with drugs and

guns.        The defense’s argument at the guilt-innocence

phase of the trial was that the State failed to bring

sufficient evidence to support a legal search. R.R.VI—

208.       The defense argued that if there was sufficient

probable cause to search for the burnt marijuana and you

claim you saw it, then show me the marijuana.

       The     State   countered    the   defense’s    argument      by

telling the jury to use its common sense that Appellant

was    a     drug   dealer.   The    State   argued   he    had   large

amounts of cash, the gun, the magazine with ammunition,
                                    31
marijuana,       and     cocaine.        R.R.VI—215.       The        State

described it as a war on drugs and a war on Appellant.

R.R.VI—215.

       As discussed in Appellant’s first issue, the jury

was not properly instructed on the application of the

exclusionary rule for Tex. Code Crim. Proc. § 38.23.

This failure to give the proper instruction, coupled

with    the    improper    admission      of   the   handgun   and     the

State’s       argument    emphasizing      the    possession     of    the

handgun certainly should cause grave concerns about the

decision of the jury.          The defense was forced to argue

to the jury to find Appellant not guilty due to the

failure of the State to properly prove to the jury the

grounds for the search of Appellant—an search that was

based     upon    evidence     that      was     never   recovered      or

photographed by the State.               The erroneous admission of

the handgun and subsequent “war on” Appellant as argued

by the State calls into grave doubt whether Appellant

was given a fair trial and the proper chance for the

jury to make the very difficult choice of finding him
                                    32
“Not Guilty”, even though the evidence showed that the

cocaine was found inside his cap.

    For all the foregoing reasons, Appellant’s Second

Issue should be sustained, Appellant’s case be reversed,

and the case remanded for further proceedings.

                    APPELLANT’S THIRD ISSUE

    THE TRIAL COURT COMMITTED REVERSIBLE ERROR
    BY ADMITTING A NONCERTIFIED COPY OF A
    JUDGMENT DURING THE PUNISHMENT PHASE OF THE
    TRIAL.    THE JUDGMENT WAS NOT PROPERLY
    AUTHENTICATED.

                         STATEMENT OF FACTS

    During the punishment phase of the trial, the State

introduced a non-certfied copy of a judgment in cause

number   14,045.        R.R.VII—52-53,      55-56;   R.R.VIII—36-39.

Appellant objected to the admission of this document on

the grounds that it had not been properly authenticated

and that it was not a certified copy of the judgment.

R.R.VII—55-56.      The State responded by arguing that the

cause    number   was    referenced    in    State’s    exhibit   12A.

R.R.VII—55.        The    trial   court     overruled    Appellant’s

objection and admitted the document.            R.R.VII—56.
                                  33
                              SUMMARY OF ARGUMENT

      The    trial        court      committed        reversible          error      by

admitting     a     noncertified            copy     of     a    judgment       of    a

previous conviction against Appellant.                            The record is

wholly      void     of       any        proper    authentication          of        the

judgment.          The    use       of    this    prior     conviction       harmed

Appellant as the State used such evidence to argue to

the   jury     that       Appellant          should        receive    a     maximum

sentence, which the jury did impose.

                         ARGUMENT AND AUTHORITIES

      The   Rules        of    Evidence          require    that     prior      to    a

document’s admission into evidence, it must be properly

authenticated.            “To        satisfy        the         requirement          of

authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it

is.” Tex. R. Evid. 901(a).                        The Exhibit 12B was not

authenticated by certification as a public document or

by any other means.

      “In    this        case,       Carlock       distinguishes           Bautista
                                            34
because in that case the parole officer testified using

certified     copies        of     the         judgments         against   the

defendant, whereas in this case copies of the judgments

were admitted into evidence that were not certified.

Carlock contends the ‘appropriate’ method to introduce

the prior judgments was to obtain certified copies and

offer     those   judgments        under       Texas      Rule   of   Evidence

902(4) as certified public records. Rule 902 describes

documents that are self-authenticating, and Carlock's

suggested method is certainly the traditional method of

introducing a prior judgment. However, if a document is

not self-authenticated under Rule 902, it still can be

authenticated under Rule 901.

     “Rule    901(b)(7)      illustrates            how    to    authenticate

public records and reports. Tex. R. Evid. 901(b)(7). To

authenticate a public record which is authorized by law

to   be    recorded    or    filed        in    a   public       office,   the

testifying    witness       must    be     able     to    provide     evidence

that the writing is from the public office that keeps

that type of record. Id. Carlock contends the parole
                                     35
officer could not authenticate the judgments because

she   was   not    the       custodian   of    those    records   and

therefore could not authenticate the judgments by ‘mere

testimony that he or she once supervised a Defendant on

parole.’    Carlock     is    correct.   The   parole   officer   was

able to testify she was familiar with the defendant and

his previous criminal record; however, her testimony

was not sufficient to authenticate the two judgments

because she was unable to provide the necessary proof

that those two judgments were from the public office

responsible for maintaining those records. Because the

judgments were not certified copies, authentication was

required    and   the    parole   officer's     testimony   was   not

enough.”

      Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.—

Texarkana 2003).

      In the present case, there was even less evidence

supporting the admission of the uncertified copy of the

judgment.    In Carlock, the parole officer testified that

the defendant in that case was on his case load under
                                   36
the judgment offered and admitted in that case.                                   The

parole officer testified that she was familiar with his

file and but she was unable to provide the necessary

proof    that    those    two      judgments       were     from    the     public

office responsible for maintaining those records.                                 In

Appellant’s      case,    the       uncertified          copy    was      admitted

through     a    fingerprint            expert     who     had     no     personal

knowledge       about    the       judgment        and     sentence       or     the

defendant.

       In Carlock, the Court of Appeals found that the

admission of the judgment was harmful to the defendant

and reversed his conviction.                     “It was error for the

trial court to admit the two uncertified copies of the

judgments because the testimony of the parole officer

was    insufficient      to     authenticate         the    documents           under

Rule    901.    See     Tex.       R.    Evid.     901.     This        error    was

obviously       harmful       to        Carlock.     The        jury      assessed

punishment at ninety-nine years' imprisonment, which was

only permissible because of the enhancements. Therefore,

Carlock's third point of error is sustained.” Carlock v.
                                         37
State, 99 S.W.3d at 295.

       Appellant’s case presents a somewhat different harm

analysis.    Like     Carlock,         Appellant     was    sentenced     to

ninety-nine    years     in    prison        and   was   twice   enhanced.

Unlike     Carlock,      the       judgment        introduced       against

Appellant was not one of the enhancement paragraphs.

Because     this    is   not       a    constitutional        error,     the

erroneous admission of evidence will be disregarded if

it did not adversely affect substantial rights or the

jury's verdict, or had only a slight effect on the

jury's verdict. Avila v. State, 18 S.W.3d 736, 741–42

(Tex. App.-San Antonio 2000, no pet.). Tex. R. App. P.

44.2(b).

       “Having found error in the trial court's ruling, we

must    determine    whether       appellant       was     harmed   by   the

improper     admission        of       the    evidence.       Because    no

constitutional error is involved when evidence of an

extraneous offense is admitted without notice, we look

to whether the error affected appellant's substantial

rights. Tex. R. App. P. 44.2(b). The substantive right
                                       38
affected by the admission of an extraneous offense is

the right to a fair trial. See Garza v. State, 963

S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.).

An error affects a substantial right when the error had

a substantial and injurious effect or influence on the

jury's    verdict.     King      v.    State,      953     S.W.2d    266,      271

(Tex. Crim. App. 1997). If the error had no influence

or   only   a    slight    influence          on     the   verdict,       it    is

harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). However, if we harbor ‘grave doubts’

the error did not affect the outcome, we must treat the

error as if it did. See Webb v. State, 36 S.W.3d at

182–83.     In    assessing      the    likelihood         that     the   error

adversely       affected    the       jury's    decision,       we   consider

everything in the record, including all testimony and

evidence    admitted       for    the       jury's    consideration,           the

nature    of     the   evidence       supporting         the   verdict,        the

character of the alleged error, and how the error might

have been considered in connection with other evidence

in the case. See Morales v. State, 32 S.W.3d 862, 867
                                       39
(Tex.   Crim.    App.   2000).     We    may     also    consider     the

State's   theory   of   the     case,    any   defensive     theories,

closing   arguments,      and   voir     dire.    Id.”       Wagner    v.

State, No. 14-01-00392-CR, 2002 WL 31662410, at 4 (Tex.

App. Nov. 27, 2002)(Not designated for publication).

    In Appellant’s case, he was assessed the maximum

punishment allowed by law.              The difference between 99

years and life in prison is academic, at best.                        The

State’s argument was that Appellant should be given the

maximum sentence because of his prior offenses.                       The

State specifically mentioned the eight month sentence in

cause   number   14,045    in    the     beginning      of   its    final

argument.   R.R.VII—121-122.           The defense also addressed

the issue of whether the prior judgments were properly

authenticated.     R.R.VII—115.          The sentence handed down

by the jury was for the maximum sentence.                    The State

argued that due to the number of prior judgments to

which Appellant had been sentenced, he should receive

the maximum sentence.           The specific reliance on this

improperly admitted judgment to argue to the jury that
                                  40
Appellant      should    receive    the     maximum    sentence       causes

grave doubt that the error did not contribute to the

sentence.      Therefore, Appellant has suffered harm due to

the improper introduction of this exhibit.

    For     all   the    foregoing        reasons,    Appellant’s     Third

Issue should be sustained, Appellant’s case be reversed,

and the case remanded for further proceedings.

                     APPELLANT’S FOURTH ISSUE

    THE EVIDENCE IS LEGALLY INSUFFICIENT TO
    PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A
    VALID PRIOR CONVICTION FOR THE USE OF AN
    ENHANCEMENT.   THE JUDGMENT STATES ON ITS
    FACE THAT IT COULD BE A STATE JAIL
    CONVICTION AND THEREFORE IT COULD NOT BE
    USED TO ENHANCE A NON-SATE JAIL FELONY
    OFFENSE.

                         STATEMENT OF FACTS

    The State gave Notice of Enhancements.                       C.R.—8-9.

The first enhancement paragraph alleged the following:

“And it is further presented in and to said Court that,

prior     to   the   commission       of     the     aforesaid    offense

(hereafter      styled    the   primary       offense),    on    or   about

January     29,   1998,    in      cause     number     13997    in    356th


                                     41
District Court of Hardin County, Texas, the defendant

was convicted of the felony offense of Possession of a

Controlled Substance”. C.R.—8.

    The judgment entered into evidence during the trial

states    that     Appellant     was    previously    conviction    in

cause     number     13997      under    P.C.     481.116(b),     (c).

R.R.VIII-32-35.

    The judgment also states that the original term of

probation was for seven years and the probation was

revoked for a term of four years.               R.R.VIII—32-35.    The

judgment is silent as to whether there was a deadly

weapon.     R.R.VIII—32-35.        The judgment is also silent

as to whether there were any enhancement paragraphs.

R.R.VIII—32-35.

                          SUMMARY OF ARGUMENT

    The judgment introduced into evidence states on its

face that the conviction was for either a State Jail

Felony offense for the Possession of a Penalty Group 2

substance    or     for     a   third    degree    felony   for    the

possession of a Penalty Group 2 substance. Therefore,
                                   42
the     evidence    is     legally    insufficient     to     show   that

Appellant was convicted of a prior non-state jail felony

that was a valid felony conviction to be used as an

enhancement.

                     ARGUMENT AND AUTHORITIES

       The evidence adduced at trial is legal insufficient

to     support     valid    enhancement      because   the     judgment

introduced at trial alleges either a state jail or a

third degree.         The judgment is insufficient to prove

valid enhancement as a matter of law.                   A State Jail

felony under Tex. Penal Code § 12.35(a) cannot be used

to enhance a non-state jail offense to habitual status.

    Tex. Penal Code § 12.42(d).

       Possession of a Controlled Substance under Tex. H &

S    Code   481.116(b)      is   a   state   jail   felony.      Such   a

felony could be punished as a third degree felony if

there were two prior state jail convictions. See former

Tex. Penal Code § 12.42(a)(1)[now Tex. Penal Code §

12.425].     Under the judgment entered into evidence, the

facts do not prove beyond a reasonable doubt that the
                                     43
prior conviction could be used to enhance a non-state

jail felony offense.

    The      appropriate     standard       of      review    of    the

sufficiency of the evidence was set for the by the

Court   of   Criminal     Appeals     in   Brooks     v.   State,   323

s.w.3d 893, 912 (Tex. Crim. App. 2010), “As the Court

with final appellate jurisdiction in this State, n48 we

decide that the Jackson v. Virginia standard is the

only standard that a reviewing court should apply in

determining     whether    the   evidence        is   sufficient     to

support each element of a criminal offense that the

State is required to prove beyond a reasonable doubt.

All other cases to the contrary, including Clewis, are

overruled.”

    The Court of Criminal Appeals again addressed the

proper review of the sufficiency of the evidence.                    In

Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim.

App. 2012), the Court held:

          “To determine whether evidence is sufficient to

    support a conviction, a reviewing court views all
                                 44
the evidence in the light most favorable to the

verdict to decide whether any rational trier of

fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,

895   (Tex.   Crim.   App.        2010).   This   requires   the

reviewing court to defer to the jury's credibility

and weight determinations because the jury is the

‘sole   judge’   of   witnesses'       credibility     and   the

weight to be given testimony. Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 899. A reviewing court

determines    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. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing

Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.

App. 2007)). When the record supports conflicting

inferences, a reviewing court must presume that the
                             45
    fact finder resolved the conflicts in favor of the

    prosecution and defer to that determination. See

    Jackson, 443 U.S. at 326.

         “Evidence      is    insufficient      to    uphold    a

    conviction when the record contains no evidence, or

    merely a ‘modicum’ of evidence, probative of an

    element of the offense. See Jackson, 443 U.S. at

    320 ("[A] 'modicum' of evidence [cannot] by itself

    rationally support a conviction beyond a reasonable

    doubt."); Laster, 275 S.W.3d at 518 ("After giving

    proper deference to the factfinder's role, we will

    uphold   the   verdict    unless   a   rational   factfinder

    must have had reasonable doubt as to any essential

    element."). If a reviewing court finds the evidence

    insufficient under this standard, it must reverse

    the judgment and enter an order of acquittal. Tibbs

    v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L.

    Ed. 2d 652 (1982).”

         In this case, the evidence admitted during the

trial   leaves   open   the   question     as   to   whether   the
                               46
judgment was for a state jail offense (481.116(b)) or a

third degree offense (481.116(c)).                  The actual term of

the    sentence   is   for    four     years   in    the   Institutional

Division of the Texas Department of Criminal Justice.

This would indicate that the judgment was not for a

state jail felony.           But, a state jail felony could be

punished as a third degree felony if there were two

prior state jail convictions to enhance the punishment

under the then existing Tex. Penal Code § 12.42(d).

       Included in the Reporter’s Record as Exhibit 12,

R.R.VIII—17-19, are original judgment and indictment in

that matter.       These documents were not admitted into

evidence and therefore are not available to support a

finding of a third degree felony.                   If the Court finds

that since these documents are part of the appellate

record and available to settle the issue regarding the

proper level of offense in cause number 13997, then the

Court will also find that Appellant was never charged

with    the   possession     of   a    Penalty   Group     2   substance.

These documents demonstrate that the judgment entered
                                      47
into evidence in Appellant’s case is unsupported by an

indictment for the offense for which he was sentenced.

The indictment included within the un-admitted Exhibit

12 shows that Appellant was charged with the possession

of cocaine, a penalty group one substance under 481.115,

not    a   penalty     group    2        substance   under    481.116.

Therefore, the evidence is insufficient to support the

first enhancement alleged against Appellant.

      For all the foregoing reasons, Appellant’s Fourth

Issue should be sustained, Appellant’s case be reversed,

and the case remanded for further proceedings.

                      CONCLUSION AND PRAYER

      WHEREFORE,     PREMISES       CONSIDERED,      the     Appellant,

DeJesus    Fobbs,    prays   that    the    Judgment   of    the    Trial

Court be reversed and remanded for further proceedings

consistent with the judgment of this Honorable Court.


                                Respectfully submitted,

                                SEARS & BENNETT, LLP


                                _/s/ Joel H. Bennett_____________
                                    48
                         JOEL H. BENNETT
                         Texas State Bar No. 00787069
                         1100 Nasa Parkway, Suite 302
                         Houston, Texas 77058
                         Telephone: (281) 389-2118
                         Facsimile: (866) 817-5155
                         joel@searsandbennett.com

                         ATTORNEY FOR DEJESUS FOBBS

                CERTIFICATE OF SERVICE

    I hereby certify that Appellant’s Brief has been
served upon Sue Korioth by email at suekorioth@aol.com
and the Hardin County District Attorney’s Office by
facsimile to 409-246-5142 on this the 27th day of April,
2015.


                         _/s/ Joel H. Bennett_____________
                         Joel H. Bennett

               Certificate of Compliance

    In compliance with TRAP 9.4(i), I certify that the
word count in this reply brief is approximately 7512
words.

                         _/s/ Joel H. Bennett_____________
                         Joel H. Bennett




                           49
