                            NO.   13-13-00338-CR




                                     IN' .THE
                             COURT    OF   APPEALS
                  FOR THE THIRTEENTH JCOURT OF APPEALS
                           CORPUS   CHRISTI,      TEXAS




                                  LAURA    DAY;

                                           Appellant pro se


                                       -v-




                            THE   STATE    OF   TEXAS/

                                           Appellee.




                    APPELLANT'S            REPLY         BRIEF




                                           Laura Day/     Appellant    Pro Se
                                           TDCJ-CID # 1863665 / Crain Unit
         FILED                             1401 State School Road,         .
                                           Gatesville, TX 76599
       RECEIVED



CECILE FOVGSANGER, CLERK                                         DELIVERED
                                                                    JUN 10 2015
                                                                 13th COURT OFAPPEALS
                           TABLE   OF   CONTENTS



Table   of   Contents                                       i


Index of Authorities                     '                 ii

Preliminary Reply to State's 51-Page Statement of Facts     1

Argument in Reply to     SB]/   Issue One                   7

Argument in Reply to     SB]/   Issue Two                 24

Argument in Reply to     SB'] / Issue Three               26

Argument in Reply to     SB]/   Issue Four          ..    .26

Argument in Reply to     SB]/ Issue Five                  28

Argument in Reply to     SB],   Issue Six                 33

Argument in Reply to     SB] / Issue Seven                .35

Argument in Reply to     SB]/   Issue Eight               36

Argument in Reply to     SB] / Issue Nine                 37

Argument in Reply to     SB],   Issue Ten                 38


Conclusion and Prayer                                     38

Certificate of Service                                     39
                            TABLE   OF   AUTHORITIES


                          U.S.   Supreme Court Cases


Boag v. MacDougal, 454 U.S. 364 (1982)..

Carmell v. Texas, 529 U.S. 513 (2000)...                           30,   31

Caulder v. Bull, 3 U.S. 383 (1798)!                                30,   31


Collins v. Youngblood, 497 U.S. 37 (1980                                 30


Haines v. Kerner, 404 U.S. 519 (1972)...                                  5

Jackson v. Virginia, 443 U.S. 307 (1979)

                 United States Court [of Appeals Cases

Papantony v. Hedrick, 215 F.3d 863 (8th Cir. 2000)

United State v. Dabeit,       231 F.3d 9i79 (5th Cir.   2000)


                                 Texas     Courts


Acosta v. State, 429 S.W.3d 621, rij.47 (Tex .Crim.App. 2014)..21, 22

Batterbee v. State, 537 S.W.2d 12 (Tex.Crim.App. 1976)              24, 25

Black v. State, 645 S.W.2d 789 (Tex.Crim.App. 1983)              29, 30,32

Buffkin v. State, 179 S.W.3d 166 (Tex.App. Houston [14th Dist.]
2005, aff'd/ 207 S.W.3d 779 (Tex .Crim.App. 2006)                     4, 5

Chalin v. State, 645 S.W.2d 265 (Tex .Crim. App . 1983)                  30

Cleveland v. State, 177 S.W.3d 374, 385-386 (Tex.App.-
Houston [1st Dist.]       2005, pet.ref'd)                          33/ 34

Cunningham v. State, 848 S.W.2d 891, 906 n.l (Tex.App.-
Corpus Christi 1993, pet.ref'd)                                          30

Davis v. State, 817 S.W.2d 345 (Tex .Crim. App. 1991)                     4

Deschenes v. State, 253 S.W.3d 374, 378 (Tex.App.-Amarillo,
2008, pet.ref'd)                                                10, 11, 26

Dusek v. State, 978 S.W.2d 129, 133 (Tex.App.-Austin,
1999, petr..ref *d)                             '                        14
                      y
                                         i i.
                            Texas   Courts,   cont.


Fisher v. State, 887 S-W.2d 49, 57 (Tex .Crim. App. 1994)                    11

Giesberg v. State, 984 S.W.2d 245 (Tex-Crim.App. 1998)                       33

Howard v. State, 145 S.W.3d 327, 334 (Tex.App. Fort Worth,
2004, no pet.)                                                               34

Jefferson v. State,      189 S.W.3d 305 (Tex.Crim.App. 2006)                 13

Jones v. State, 979 S.W.2d 652 (Te!x .Crim. App. 1998)                       30
Lemoine v. State, 85 S.W.3d 385 (Tex.App.-Corpus Christi,
2002                                                                         30


Light v. State/ 15 S.W.3d 104 (Tex .Crim. App. 2000)                          4

Montgomery v. State, 369 S.W.3d 188/ 193 (Tex.Crim.App. 2012)..33

Perryman v. State, 798 S.W.2d 326 (Tex.Crim.App. 1989)                       36

Price v. State, 626 S.W.2d 833/ 836 (Tex.App.-Corpus
Christi 1981/ no pet.)                   j                               27/ 28
Rodriguez v. State,        S.W.3d      (Tex.Crim.App. 2014),
(PD. 1189*13)                            1                            9, 14, 15
Rosillo v. State, 953 S.W.2d 808, :811 (Tex.App.-Corpus
Christi,   1997,    pet.ref'd)                                               30


Schmutz v.   State,    440 S.W.3d 29 (Tex .Crim. App.   2014)                29

Sterner v.   Marathon Oil Co.,      767 S.W.2d 686,   690   (Tex.   1989),
                                                                         33}.34


Tello v.   State,    180 S.W.3d 150,   158 (Tex.Crim.App.     2005)          33

Thorton v.   State,    994 S.W.2d 845 (Tex.App.-Fort Worth,
1999/   no pet. )                                                            14

Weatherford v. State, 828 S.W.2d 12 (Tex.Crim.App. 1992)                      4

Williams v. State, 235 S.W.3d 742,, n.81 £• 82 (Tex.Crim. App.
2007)                                                                   21 , 22




                                     in.
                                    NO.    13-13-00338-CR


                                             IN   THE
                                      COURT OF
                                       APPEALS
                    FOR THE THIRTEENTH JUDICIAL DISTRICT
                                CORPUS      CHRISTI,      TEXAS




                                           LAURA   DAY,

                                                  Appellant pro se

                                              -v-



                                    THE    STATE OF TEXAS

                                                  Appellee.



                               APPELLANT'S         REPLY       BRIEF



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS ABOVE:



        Appellant       LAURA       DAY     ("Day"),       respectfully replies to the
                                                           *
arguments set out in the State's brief. Tex.R.App.Pro. 38.3.


I. Preliminary Reply to the State's 51-Page Statement of Facts
                                                     l



      A. The State's Over-Length Brief, T.R.A.P. 9 .4(i)(B),(4).

        Including       the     Index      and     Statement of the Case, the State
has     submitted       a     brief       totaling        107 pages, with a word court

consisting of 23,507 words.


        B.   The State's Summary of the:Argument.


        While     the       State     denigrates         Day's     brief as non-compliant

under        T.R.A.P. 38.1, the [writer]jfor the State apparently holds
himself        immune       from the same appellate rules. The [writer] flat

* (Hereinafter noted as SB)
ignores Rule 38.1(h), holding: "The brief must contain a succinct,

clear, and          accurate            statement of the arguments made in the body

of     the     brief.        This           summary        must not merely repeat the issues

or points presented for review." see also Rule 38.2(1), T.R.A.P.

        C. The [Writer's]                   Statement of Facts, SB 2-52.
                                                                I
                                                                i



        Although           the        State is not required to include a "Statement

of     Facts," Rule 38.2(a)(B),                      in what must be some kind of record,

the     [writer]           submits           51 pages of a statement of facts,                  replete

with        mistatements,              self-contradictions,                  a mountain of fallacy,

and a prodigious flow of invective speculations.

        The     [writer],              by     all accounts, simply ignores the content

of     Day's        brief,        and        reduces        his        Statement of Facts into his

own         speculative           [retrial]. The [writer] substitutes the actual
facts        contained           in     the trial record and replaces them with his

own inherently unbelievable fallacies.

        For     example, the [writer] selects "snippets" from the trial
                                                                j
recordi.and distorts                   the        facts     to meet his favor, while evading

the exclupatory facts that undermined the State's case.

        A     stark        example. During trial the prosecutor went to great

lengths        to     convince              the     jury        that      Day took the time to stop

and     rinse        the     sand           off [T.S.'] body before loading him in her

vehicle.        See        SB-        6,10,       and 37.       But see also:      7-RR-79,   80,   146,

147,    159,    160,       210;       and 8-RR-29.

        Yet     another           gross           example deals with the [writer's] flat-

out misrepresentations cited in SB !- 36-38, and 62.

        Here        the     [writer]              obscures          the    facts   adduced at    trial,


                                                          (2)
and     now     defies the record by falsely accusing Day of physically

drowning [T.S.] by holding him under the water.                                       This fabrication
                                                                 i
of     facts        is        an     attempt          to      show the connection of the bruise

on     [T.S.']           arm        had       a bearing on how he was drowned. Of course

this was not the fact demonstrated to the jury.

        Also,        as        to        SB-62,       again,          the    [writer] steers from the

trial     record              with        his     own      versions          of speculation and tells

this     Court           [T.S.]           was     already            dead,   and   in the back seat of

Day's car when she relocated her vehicle a second time.

        Forthright,                 this        simple did not occur, nor did the State's

own prosecutor allude to this absurdity during trial.

        Day     thwarts              this       concocted allusion of underhandedness by

noting:        If        [T.S.]           was     already         dead       in the backseat of Day's

car     (which           he        was     not),        then notedly-- he would have already

been     deceased in [Kleberg] County, Texas, (while in the backseat

of     Day's        car),           thus, notedly, the State's case fails under the

venue     issue           raised           at     Issue 5 in Day's brief. See also SB-70-

74.


        Finally,              while        there remain numerous other inconsistencies

and     misrepresentations                      in      the      SB     (statement of facts), these

improprieties                 will       be     addressed             in Day's reply in seriatim of

the arguments.


        D. Appellant's Briefing Rules ;to be Construed Liberally.


        Throughout                 the    SB,        the [writer] begs for a victory on the

statutory        claims that Day's brief is: 1) non-compliant, T.R.A.P.

38.1;     and        2) the issues were not properly preserved for review,


                                                           (3)
T.R.A.P. 33.1. See SB @ passim.

        The        [writer]             chastens Day for allegedly failing to present

anything          for        review by "omitting'record citations," and failing

to     note       appropriate              "citations to authorities." SB-Passim. But

the [writer's] assertions have no merit-
                                                                     i
        A        fair    reading           of        Day's           brief belies the [writer's] own

fantastical              mischaracterizations'.                          Also,     assuming   that   Day's

brief        contained any of the representations made by the [writer],
this     Court          is     still        obligated to review every argument raised

that        is necessary to the disposition of her appeal. See T.R.A.P.

47.1(a);           Light       v.        State,           15     S .W.3d 104 (Tex.Crim.App. 2000);

Davis        v. State, 817 S.W.2d 345, 346 (Tex.Crim.App. 1991)(holding

that        the     court          of     appeals should not dismiss a point of error

when        it     is properly briefed by a party). The failure by a court

of     appeals          to     address           a        point          of error properly raised by a

party        requires          remand           for        consideration of that point. Id. at
                                                                     i
                                                                     »



346 (remanding a neglected point of error to the court of appeals
                                                                     t
for     consideration);                   cf.        Weatherford             v.    State, 828 S.W.2d 12,

13 (Tex.Crim.App. 1992)(same).

        Regardless             of        the     [writer's] mistatements here, the Court

of Appeals in Bufkin v. State held:

                  "While       a        brief must contain appropriate citations
        to        authorities             and        to        the record, Rule 38.1(h), the
        briefing rules found in the Rules of Appellate Procedure
        are        meant       to acquaint                 the jcourt             with the issues in
        a        case    and        to     present argument that will enable the
        court to decide                        the        case.j Id. at 38.9. Accordingly,
        the rules are to be construed]liberally and substantial
        compliance             with        the rules may, in the court's discre
        tion, be sufficient. TEX.R.APP.P. 38.9. In other words,
        it is           the court's prerogative,    not the parties' to
        insist          on unerring compliance with the briefing rules.
                                                               (4)
              Where,  as  here, the court has had no difficulty
        locating  the pertinent portions of the record relating
        to  appellant's  ...point of. error,   it is within the
        court's discretion to review the point of error."

Id., 179 S.W.3d 166, 173-74 :• (Tex .App .-Houston (14th Dist.] 2005),
                                                             i
aff'd, 207           S.W.3d 779 (Tex.Crim.App. 2006).
                                                              i



        While the [writer], himself, cites a barrage of inapplicable

caselaw on this score, he fails to recognize Rule 38.9 in regards

to     its     application              here,        and in accord with the United States

Supreme        Court's           holding        in     Haines v. Kerner, 404 U.S. 519, 92

S.Ct.        594     (1972)        holding:           "Pro se litigants' pleadings are to

be     construed           liberally           and     held         to    less stringent standards

than     formal           pleadings drafted by lawyers; if the court can make

a     reasonable           reading        of the pleadings that state a valid claim

on     which        the        litigant        could     prevail, it should do so despite
                                                             i
the     failure to cite proper legal authority or confusion of legal

theories;-'.'-       see       also      Boag v.       MacDougal,          454 U.S.   364/ 102 S.Ct.

700     (1982)(same);              Papantony           v. Hedrick, 215 F.3d 863 (8th Cir.

2000)(pro           se     petitioners           should           not be unreasonably subjected

to     stringent           procedural           niceties);               see also United States v.

Dabeit,        231        F.3d     979     (5th        Cir.        2000)("Courts of     Appeals have

a duty to follow precedent, especially Supreme Court precedent").

        This       Court         should        ignore the State's ambiguous assertions

and     conduct           an     adequate        review on the points of which Day has

properly briefed.

        While        there        may     be     some        confusions raised in Issue One,

they,.-do          not     arise        from     Day's            version of facts. Instead, any

confusion           apparent          stems      from.the State's method of submitting

the two theories under                    various statutes of the penal code.

                                                       (5)
       E. The [Writer's] Unethical Pejorative Attacks on Day.


       ..... "Omit irrelevances,   slang,   sarcasm, and personal
       attacks.      Ad   hominem   attacks    are    particularly
       distasteful    to appellate judges.   Attacks in the brief
              rarely bring you anything      but   condemnation by
       an     appellate           court.           All     that     scorched-earth, take-
       no-prisoners, give-no-quarter; hardball stuff is out..."
       Roger J.   Miner, Twenty-Five "Dos" for Appellate Brief
       Writers, 3 Scribes J. Legal Writing 19, 24-25 (1992).

       ... "[Never]              misrepresent              the     opposition. A sure way
       to     lose        an     argument           is to make the opponent more of
       a  "bad-guy" or "simpleton," than   the  facts warrant.
       Be  sure your   interpretation of opposing view points
       is in no way distorted." John M. Lannon, The Writing
       Process 332   (1989).  See also "The Winning Brief,"
       Second Ed., Bryan A. Garner, Gh. 71, 72.




       Rounding           off     the        final 37-pages of brief arguments to his

suitability,          the        [writer]           rants        throughout   the    pages with a

diatribe      of    invectives          in the hard            use that would be embarrassing

in a   barroom,      let alone this Court.

       Lacking        in        authority,              the [writer] attempts to eviscerate

the    record        by        resorting           to     a seemingly endless stream of un

provoked       hyperbole              and     perversions.          The   [writer]    denigrates

Day's efforts to posit her points for relief, with negatives such-

as: "as tangents;"                "failing to [lie] her way out of a conviction

because       she     did        not        want        to be cross-examined for days about

all    the     [lies]           she spewed forth;" all the other [lies] and she

[lied];" next followed by permutations of the root word [distort]

(distorting          the        facts        and        law and evidence), then.ignore (ig

noring       the     law        and     evidence) and close behind it, misconstrue

(miscontruing the law and evidence). SB 55-92.


                                                         (6)
           But     sadly           it does not end here. Throughout Issues One thru

Ten,        the     [writer]              continues     to        belittle       Day with dismissive

adjectives,              apparently           without any consideration for Day or this

Court.            Day        concedes        defeat     [only]          to the [writer's]        ranting

contest          —which             she     never     entered— and respectfully suggests

a     return to the record [facts] and [law] to resolve her properly

briefed           issues           she     courteously submitted to the State and this

Court.



Argument in Reply to the [SB], Issue One:

           A. The Evidence was Legally Insufficient to Support Day's
           Conviction for Capital Murderl Appellant's Brief @ 33.


           If     contradictions              raised        in     legal arguments were olives,

the State's here would be labled "super-colossal."

           Indeed,           the     State's        disparate contentions argued in Issue
                                                             !
One are           not        of assistance to the!Court. The [writer's] rebuttal

is     a        crudely        posited        approach           rife   with     self-contradictions

and        fantastical              mischaracterizations of               the    facts.   In   its   final

analysis/           this           Court    will      see        that    the [writer's] attack is

nothing           more than an assault on Day's constitutional guarantees/

as     well        as        the integrity of settled State and Federal caselaw,

and in the end on the Court's judicial process itself.

           1.    Facts not in Dispute Relevant to Issue One:


           There        is     no . disagreement             between       the parties concerning

the        applicable              standard     for     measuring          the     legal sufficiency


                                                       (7)
of    the      evidence.           Jackson      v.     Virginia,        443 U.S. 307, 318-319

(1979); see also SB-56 (same).

        There        is     no     dispute that the elevating factor giving rise

to    the capital murder statute was'submitted under § 19.03(a)(8),

the age of [T.S.].

        Day        conceded        that   she        had        care,   custody and control of

[T.S.]        on     the     day     of   his demise, specifically in accord with

the     State's           allegations,only.related to its two theories raised

in Count One and Count Two of the indictment.

        There        is     no     dispute      that           the State alleged that [T.S.']

death occurred              by an [ACT] or [OMISSION].


        B. The Disputes Raised by the State's Brief Relevant
              to the State's Allegations'.
                                                           i


        The        [writer]        grossly      misconstrues Day's argument relevant

to    Issue        One.      SB-56."In an            attempt        to further contradict the

facts,    the [writer] complains that Day's argument is a challenge
                                    i
to    the  indictment. That is simply not the case. While the State

makes       the-     unremarkable         observation              that Day "never challenged

the     indictment           in     her    case," the [writer] conspicuously evades

the     issue        of     Day     having structured her discussion relevant to

the     statutory           elements       raised          in the indictment, and that the

State       failed         to meet its burden of proof according to the clear

language charged in the indictment and submitted to the jury.

        The        Court     should       also be concerned as to-why. the [writer]

entirely ignores.; the precedential caselaw cited by Day supporting

her argument based on the State's two theories in Count One.                               See

                                                     (8)
Appellant's              Brief     at        14,     18/ 27-30; and see Appellant's Brief

at    32,      closing           with        how     the       State failed to prove Theory 1,

Count One, and failed to prove Theory 2, Count One.
                                                                   i



                                                                   *



C.    The [Writer] Miscontrues Day's-Legal Sufficiency of the
      Evidence Challenge as a Challenge to the Indictment.

        The language set out in the indictment provided that:
                                                                   i

        "...        defendant           ...        did     then              and there intentionally and
                                                               I
knowingly           by     act     or omission cause the death ... of [T.S.] by:

failing        to        properly        supervise             [T.S.]              while [T.S.] was in the
                                                               I
water without a lifejacket, or failing to seek adequate or timely
                                         "                     i
medical care for [T.S.]. (Bracket Emphasis added).

(I-CR-3,       @ 6-7).
                                                                   i

                                                               i
                                                               i

        There        is     no     question,             that               by     tracking the language of
                                                               i
the     indictment,              the     State's          allegations                  are   a derivative of

Tex.Pen.Code § 22.04(a)- Injury to                                     a    Child.


        So,     being        that        "injury to a child" may serve as an under

lying     felony, to              felony        murder,                    (such     as the case here), and

because        the        State        specifically alleged that its [two] theories

constituted          an      [act]        and       an [omission], Day did not object to

the     substance           of     the        indictment                   because       she held the State

to its burden of proof relevant to these two theories.

        In     this        case,        the        Grand       Jury              failed to specify in    the

indictment and the State failed toi identify at trial, the offense



* See Rodriguez v. State,                    S.W.3d         (Tex.Crim.App. 2014) (No. PD-1189-13!
                                                               i

(6-18-14).                                                     !

                                                         (9)
that        constituted              the        statutory      element         of     criminal activity

relied upon by the State in order to meet its burden of proof.

        The        [writer]           fails        to    recognize        --        or simply evades —

the     fact        that        it        was    strategy,          in this case, not to require

the     State        to        specify           the exact "criminal statutory activity,"

and     simply           chose to force the State to meet its burden of proof

against the [two] theories.                                    j
        With        this        strategy           in    mind, the [writer]             is simply wrong

in his misguided contention, and this Court is required to review

Day's        sufficiency              of the evidence challenge based on an analogy

of     the       indictment          as    drafted.      See   Deschenes v.          State,   253 S.W.3d

374,    378 (Tex.App.—Amarillo 2008, pet.ref'd).

D. The State's Evidence was Legally Insufficient to Support the
      Guilty Verdict as to the [Act] and [Omission] Theories.

        The        [writer]           is correct in his remarkable observation that

when        an     indictment does not facially allege a complete offense,

"the        State        may     [attempt] to prove (and the defendant is deemed

to     be        on notice) any [theory] of the offense that is consistent

with        the     incomplete              indictment             and   the        [controlling] penal

provision examined together." SB at 66-67.

        This        is     precisely             Day's      argument       in       her brief relevant

to     Issue        One        (and        its two theories),            is that the State failed

to     prove,        beyond           a     reasonable         doubt,      that she caused [T.S.]

to     drown        by     "failing             to [properly] supervise him while he was

in     the        water        without          a lifejacket, or that she failed to seek

adequate or timely medical care for him." Appellant's Brief at 18-

32.



                                                         10)
        The appellate courts measure the sufficiency of the evidence

against            the        [elements]        of      the       offense     as [defined] by       a

hypothetically                 correct        jury     charge.      Deschenes      v.    State,   253

S.W.3d       at    380.


        1. A Hypothetically Correct Jury Charge
                                                             i

        In        fashioning           the hypothetically correct jury charge, this

Court        is     bound        by     the     law "as,authorized by the indictment."
                                                             i

That     is        to say. Day's hypothetically correct jury charge simply

quotes        the        language        of     the     indictment,         instructing the jury

to     find        her        guilty     if     it found that [T.S.'] death was caused

by one of the two theories under Count One.                                III-CR-411.

        This        Court        cannot        substitute         itself     for   the Grand Jury

and     rewrite           the        indictment        under a statutorily defined murder

charge        relevant           to     the two theories. Nor/ can this Court search

the     statutes              --state     or federal— to find an underlying felony

theory        to        fit     the     State's weak circumstantial evidence or the

jury's verdict.                                              j
                                                             i

        Here, where the indictment and the jury charge merely parrot

the     State's           two        theories        (clearly      derived     from § 22.04(a)'s

language,           but        not     expressed by the State) and because                 Day did

not     seek        to        compel     the State to specify the specific criminal

activity,           this        Court     is     [bound]         by the language contained in

the     indictment              while     conducting, its sufficiency analysis. See

Fisher v. State, 887 S.W.2d 49, 57 !(Tex.Crim.App. 1994).

        So, the           essential           elements       .of the underlying theories for

this     felony murder prosecution --specifically tracking the clear

language           of     the        indictment—         being derived from the statutory

                                                      (11)
[language]              from        § 22.04(a)          itself,—"Injury to a Child"— under

the     hypothetically                    correct        jury • charge in this case is met if

Day:     (1)        intentionally;                 (2)        knowingly;             (3) by; (4) [act]; (5)

or omission; (6) caused the death of [T.S.]; (7) a child; (8) by;

(9)     failing           to        properly          supervise               [T.S.] while he was in the

water        without           a     lifejacket;              ORj (10) failing to seek adequate
or timely medical care for [T.S.].

        2. The State's Proof That Day Caused [T.S.'] Death by
           Failing to Properly Supervise him While [T.S.] was
              in the Water Without a Lifejacket was Grossly                                     out
              Standard for Sufficiency Proof Under Jackson.


        Here,           the     State's           evidentiary                 proof tending to establish

a     connection              between          [T.S.']            death and her alleged failure to

have     been           properly           supervising                 him while he was in the water,

amounted to no more than rank conjecture.
                                                                   i


        In        support           of     a     nexus between Day's failure to supervise

[T.S.]        and        his        death, the [writer] flat-out mistates the facts

adduced at trial and supported by the record.

        For        example,              there     was        absolutely             no testimony from the

State's           key     witness,             Rene      Ruiz, that Day "attempted to [coax]

[T.S.]        into        the water. SB at 68.                          Nor was there [any] testimony

indicating              that "[T.S.]             was         already          dead     in the back seat of

Day's        car" when she parked next to, or actually a ways down from

Ruiz.        SB     at        62.        And finally, most grossly mistated was at SB-

68     where        the [writer] flat out mistates that Day drowned [T.S.]

by holding him under the water.

        Nothing          more            needs     to        be        said    here. The facts are that

[T.S.]        tragically                 drowned        by        accident.          There was no proof by
                                                         (12)
the     State on this score.                       Day respectfully relies on her initial

argument           in     support           of     the     fact issues raised in this Reply/

and     continues              to hold that the evidence is legally insufficient

to     support           the        jury's        verdict           of capital murder under Theory

1, Count One.             Appellant's Brief at                      19-27.



        3. The State's Proof That Day Caused [T.S.*] Death by
           Failing to Seek Adequate or Timely Medical care for
           [T.S.] is Legally Insufficient to Support the Jury's
           Verdict That Day Committed Capital Murder.


        As     to        Theory        2     of        Count One, Day respectfully stands by

her     argument              set     forth in her opening brief. Appellant's Brief

at    27-32.


        But        since        the [writer] is adamant that the jury could have

concluded           Day        intentionally              or     knowingly      caused the death of

[T.S.], by [act] or [omission], a brief reply is necessary.

        (a).       [Act]       and [Omission] Defined Under Statute and
                   Caselaw          Precedent.                  i


       The         State        conspicuously              evades        the   fact   that Jefferson

v.     State,           189     S.W.3d           305     (Tex.Crim.App.         2006), dispells the

method        of        which        the     State        underhandedly        manipulated the use

of these two nouns.                   (14-RR-9).

        In     Jefferson,              the        court        concluded:      "The   first question

we     address,           then,        is        whether the Legislature intended to make

"act     or        omission"           in        Section 22.04(a) separate elements of the

offense        or        underlying              "brute        facts     [or means] that make up a

particular              element..."              We believe it clear that the Legislature

intended           the        latter that "act oriomission" constitute the means


                                                         (13)
of committing the course of conduct element of                                    injury to a child."

Id.     at 312;          see also Thorton v. State, 994 S.W.2d 845 (Tex.App.-

Fort        Worth        1999,        no        pet.);     Dusek          v. State, 978 S.W.2d 129,

133 (Tex.App.-Austin 1999, pet.ref'd).


        (b) Rodriguez v. State, (No. PD-1189-13) is Both
            Distinguished and Indistinguishable in Day's
               Case.
                                                               i

        Forthright,              the        [writer]       contends         that Day's sufficiency

of     the     evidence              challenge was an attack on the indictment, and

the     issue       here         should have been preserved by an objection. See

SB     at     66.        That        is     not    the case        here,   nor   is   it the issue for

review presented by Day.

        The     [writer]              cited        Rodriguez         in    his contention that Day

never        objected           to        her     indictment. While Rodriguez was faulted

for     not     objecting/                 the facts here can be distinguished as to the

preservation of the argument. How?

        Because           of     the        two     theories         alleged in Count One of the

indictment           being committed as an [act] or [omission], and because

any     [act]        relevant to the charge required the act to be clearly

dangerous           to     human           life,     Day    chose not to object and to hold

the State to its burden of proof. Appellant's Brief 19-22;                                      see also

Tex.Pen.Code § 19.02(b)(3); Cf- SB at 55, 65-68 (holding to                                       same

subject principle set forth in Day's arguments).

        There        was        no        evidence       presented          in   Day's case that she
                                                               I

committed           any        affirmative           [act]' in            the tragic drowning death
                                                               !

of     [T.S.].           Where        Day        allowed [T.S.] to remove his lifejacket,
                                                               i
and     purportedly failed to [properly] supervise him, such actions

                                                         14)
even     collectively                 were        [omissions]. The same principle applies

to     Theory        2        of     Count One, and if Day failed to provide medical

care     (which           she        does     not     concede)       then this act was also an

omission. Rodriguez,                   id.


        While        the           evidence        under Theory 1 of Count One is clearly

insufficient              to        support the jury's verdict,              it is now necessary

to turn to Theory 2 of Count One in a comparative analysis.

THEORY 2:


        While        denigrating              Day's efforts/ the [writer] deliberately

side-tracks              the obvious elements of which the State had to prove

with respect to Theory 2, [adequate] or [timely] medical care. I-

CR-3/    6-7;       III-CR-411.

        There is              no     dispute        that Day did provide medical care for

[T.S.].            Given this fact/ the elements of proof that was alleged

in     the        indictment           turns        on whether Day provided [adequate] or

[timely] medical care.                                       !

        As        noted        in     the     State's       Brief/     the [writer] refuses to

acknowledge              Day's        sufficiently          cited     case    precedent    on this

issue/        and        to        where     the     State • grossly failed to prove Theory

2 beyond a reasonable doubt. Appellant's Brief at 27-32.

        [A]- Failure to Seek [Adequate] OR [Timely] Medical Care.

        At        first        glance        it     appears      the State's contention under

Theory        2     was        to show that, if [T.S.] was still alive after Day

PULLED        HIS     LIFELESS              BODY     FROM     THE WATER,     THAT HER FAILURE TO

TO     "SEEK"        (1)           ADEQUATE, OR (2)         TIMELY MEDICAL CARE, caused his

death.       But,    the State's             case must      fall    under two   reasons.

                                                      (15)
        First/           in     conducting              an        analysis under § 22.04()(1)(2)'s

affirmative defense provisions,                                  in accord with the case precedent

cited in the Appellate brief, 27-30, the evidence was both legally

and    statutorily insufficient.

        Secondly, assuming (and certainly not conceding) that [T.S.]

was     still           alive        after           Day removed him from the water —as the

[writer] now              hypothyzes--                 it        cannot      be disputed that Bay Area

Hospital           of     Corpus Christi, Texas provided more than [adequate]

medical        care           for        [T.S.].        Facts are facts, and allegations are

allegations,              and        the        fact        is     the State did not prove,      beyond

a     reasonable              doubt that Day failed to [seek]                       "adequate" medical

care for [T.S.].

        It is crucial to point out that one of the State's disparate

pieces        of        evidence           on        this score was Day's alleged failure to

have     performed              CPR on [T.S.]. But, the record facts demonstrate

otherwise.               One        of     the        difficulties           Day experienced with her
                                                                   !

attempt        at        mouth-to-mouth                 on        [T.S.]     was   that he had vomited

after     aspirating                 in     the        water,          and   it was difficult at best

to perform adequate CPR with the vomit present in [T.S.'] mouth.

See     7-RR-84;              see        also        7-RR-125t-125 ,         .Dr. Garcia   noting:   "Q:

And     the        tape        and the tube that we see on his face,                        is that the

intubation that you described earlier in your resucitation effort

on     [T.S.]?           A:     Yes.            Q:     And,      the material that is around that

tape     and        on        that        pillow,        would that be consistent with vomit

induced        by        resucitation                 efforts?         A:    Yes, the tube was placed
                                                                   i

and     sometimes              you'll           get some vomit coming around the tube but

you're        trying           to        protect        the       airway so you want to keep the-

                                                            (16)
- the vomit out of the actual lung because it will cause problems

later."
                                                                i
                                                                t
        Day     also        recognized the fact with the vomit present around

[T.S.] before she pulled him out of the water. The lack of proper

breathing           equipment           to     have        performed CPR (mouth-to-mouth) is

obvious        to        any layman, or in this case, Day.                         This Court should

recognize           Day's        situation           relevant         to     not giving full mouth-

to-mouth        with        the        vomit        present. Of course the State does not

recognize           the     difficulty              one     would         have   by trying to ignore

the vomit while giving mouth-to-mouth.

Now, Back to point:                   [Adequate] medical care.

DEFINING [ADEQUATE]:


        ADEQUATE:           As        much     or     as     good as necessary for some           re

quirement           or     purpose;           sufficient, suitable,               fit; barely suffi

cient    or    suitable.                                        i

Random House Webster's College Dictionary (2nd ed., 2000).

        This        Court        must        draw     a    line     in this case.    Here/   where an

overzealous              prosecutor           obtains        an      indictment on nouns such as
     *                                                       I
seek,     adequate,              or     timely,           then      the     State should be held to

its     own allegations based on these nouns alleged in the charging

instrument,              and must be held to proof only on what the defendant

is put to notice of.
                                                                i

        Once        again,        the State's proof on whether Day sought (seek)

[adequate]           medical           care     is        legally         insufficient,   because no

 Defining [Seek]: to go in search of or quest of; to try to obtain; try to
 attempt; to ask for; request. Random House, supra (2nd ed. 2000).

                                                          17)
matter        how        the     chips           may     fall for the State in this case,      it

cannot        be     said        that the "medical care" Day provided for [T.S.]

      i.e.,        emergency           care        at     the       Bay Area Hospital, was not --

[adequate].                                                     '


[B] - Failure to Seek [Timely] Medical Care for [T.S.].
                                                                i



        As     with        the        State's           failure to prove Day did not provide

[adequate]           medical           care        for [T.S.], the proof that Day did not
                                                                i
[timely] seek medical care is legally insufficient.

DEFINING [TIMELY]:


        [Timely]: Occurring at a suitable time. Random House, supra

(2nd ed.       2000).



        While        there           may        have     beenj some      delay in getting [T.S.]
to     the     hospital,              the        delay alleqed by the State did not cause

the     death        of [T.S.]. Indeed, the!location of where the drowning

occurred           (at     least           3-5     miles below Bob Hall Pier) contributed

to any delay as to getting him [timely] medical care, but only to

the extent-of the remote location in Kleberg County,                                Texas.

        Testimony              was     given that a drowning victim has a variation

of     time        of survival as short as three minutes,                        up to six before

irreversible complications occur. 7-RR-94.

        Also,        Dr.        Fernandez              testified that [T.S.] was only 4-foot

tall     and        weighed           only        36     pounds,      and that [T.S.1] lung size
                                                                t


would        have        placed        him        on     the low end of the spectrum allowed
                                                                i
for survival.             7-RR-85-117.

        The        State        made        a     big     issue      about Day's failure to call
                                                         (18)
9-11.        But,        even        had     Day     summoned              emergency medical personnel

to the location where [T.S.] drowned, he would have well exceeded

the     outside           spectrum           of     time        allowed for proper medical --as

well as timely— medical care.

        Simple           math        allows        that     it would have taken medical help

over        fifteen minute,                possibly more/             to have arrived at the beach

location           in     Kleberg           County.        Considering the distance from Bob

Hall        Pier        (at        minimum--3        miles),          the fastest speed limit that

Day     could           have        driven —even to the Pier to have met emergency

personnel           would have been twenty miles per hour due to the sandy

conditions.              So,        timely        medical care was simply another way for
                                                                I
the     State           to manipulate the facts to their advantage. No matter

how     the        Court           considers        this        case,       Day decided that driving

[T.S.]        to        the        nearest        hospital was the fastest way to get him

adequate medical care. See 7-RR-13J4-135, Testimony of Dr. Garcia:

"Q:     Now/        as        far     as     where the hospital is located, you stated

that        you see a lot of drowning victims go there. Is that because

that's        the        nearest           hospital from the Island? A: Yes,                if you're

in     an     extreme              situation        where           you    don't have a heartbeat or

you     don't           have        ventilations           or        you're     coughing up water and

the     emergency              medical        services              feel     like you need to be seen

immediately              then you would stop there. Q: At least for somebody-

somebody           who        is     in a panicky situation and wanting to go to the

nearest        hospital,              the     nearest           E.R.        from the Island, it would

be the hospital where you were? A:; Yes.".

        Sadly,           Day was faced with a situation that no parent,                         legal

guardian,           or        Justice        of     the Court for that matter, would want

                                                      (19)
to be faced with. The situation for which                                         Day   [found]     herself

in     could           just        have        easily          been a double-edged sword. Had Day

decided           to        call        9-11        and        simply     wait on emergency personnel

(instead           of        driving           [T.S.]           to the hospital), one can assurdly

assume        that           the        State        would        have used that side of the sword

aqainst           her.        No        one        can actually know what went through Day's

mind     on        this           tragic           day.        No > one was there that can say how

Day     should              have        reacted
                                                          !        !
                                                          or otherwise. Even the State admitted

this during closing arguments:

        "The           last        thing           that;       I want to leave you with —           and I'm

going        to        ask        you        to always remember what I am about                    to•   tell

you. No           body        in        this        jury        boxt    right here was out there that
                                                                   i
day. No body was there. We                                know     that       because   if   you were you
                                                                   i
                                                                   i

would        have           been        a     witness,           and     you're not/ you're a juror."

(14-RR-46). (Bold emphasis added).

        There           was        no       bad      or good choice in this case.                 Day chose

what     she           felt        necessary              in     the     best interest of [T.S.]. Due

to     the        location              the        drowning occurred, neither choice did/ or

could        have           saved           [T.S.].        The evidence is legally insufficient

to     support              the     jury's           verdict           that   Day intentionally killed

[T.S.] because she failed to timely seek medical care for him


REFORMATION OF THE JUDGMENT                               IN    LIEU OF ACQUITTAL



        This           is     the           type     of        case where this Court should invoke

its     authority                 and       reform the judgment if it is determined that

Day is held blameworthy by any degree.


                                                               (20)
        A.    Recklessness or Criminal Negligence?


        Apparently           the        trial        court, concluded the State's evidence

did     not     fully        encompass           the proof needed for a capital murder

conviction,           due in large by its inclusion of two lesser-included

charges        relevant        to        the     capital murder allegation. The record

show that the jury was charged with the elements of Manslaughter,

(III-CR-412) and Criminal Negligent Homicide, (III-CR-413).

        In     Issue Six of Day's brief,, she challenged the sufficiency

of evidence as to the jury's rejection of the Criminal Negligence
                                                            i
                                                            t
charge. Appellant's Brief at 51.

        The     trial court not only defined recklessness in the appli

cation        paragraphs           of     the        charge, but specifically charged the

jury     with        the     elements of [reckless]. (III-CR-406-408 and 412,

415); Cf State's closing arguments;, 14-RR-39, 42-43.
        Criminal           prosecutions              for    £ragic accidents, such as here,
                                                            i


are     inherently troubling. They are also rare. See e.g., Williams

v. State,       235 S.W.3d 742, n. 81-82 (Tex.Crim.App.                      2007).

        Considering           the       elements           of   criminal negligence in Day's

case,        this     Court        is    provided with exclusive facts relevant to
                                                           •i
the     [act]        or     [omission] theories. Day sufficiently briefed the

the distinguishing elements separating manslaughter from criminal

negligence- Appellant's Brief at                           23-29.

        The     troubling factor with the jury charge as to manslaughter

and
             . .negligence
        criminal
                 .                              is
                                                            i
                                                      that they are identical. This only

confused the issues..                                       j

        Addressing the distinctions between capital [felony] murder,

(intent),           manslaughter          (recklessness)/           and criminal negligence


                                                      (21)
(awareness           of     and     disregard          of).         Day points the Court to the

case     of     Williams           v_-___._State_, supra/ (analyzing the distinctions
between recklessness and criminal negligence).

        It is important to note that in Count One of the indictment,

the     State        did     not     make       a     direct allegation that Day drowned

[T.S.].         Reqardless,              even       trying      to     prove such at the trial,

the State failed to prove Day intentionally caused [T.S.'] death.

And,     importantly,              that was not what the State put Day on notice

of.     The     State        alleged        that       Day      failed to properly supervise
                                                          I
[T.S.]        and or that she failed to seek adequate or timely medical

care     for       [T.S.].         That     is what pay was put on notice of by way

of Count One and             the    two Theories.

        Also       important         to     consider            even    where     the   trial   court

concluded          the      evidence        produced           at    trial     warranted a charge

on     manslaughter,              that     evidence J was            also legally insufficient

that Day "recklessly caused the death of [T.S.]."
                                  i
     Finally,  if  Day's omissions that were alleged constituted

a crime        of any degree,             it would certainly be within the elements

of criminal negligence. Why?

        Manslaughter             (criminal          recklessness)            must not be confused

with     (or       blended         into)     the      elements         of criminal negligence,

a     lesser       culpable         mental        state.       Simply by allowing [T.S.] to

remove       his     lifevest            (which      is       not a crime in Texas) and then

not     [properly]           supervising            him ', (if that were truly the case),

is     not     the        type    of culpable conduct showing that her omission

constituted an extreme risk of danger to human life.


                                                      22)
        The        same        principle           determination             applies     to Theory 2 of

Count        One,        failing           to     seek        adequate       or timely medical care.

While Day's              alleged omission as to Theory 2 demonstrate a degree

of     negligence,                 this        degree     of negligence cannot be reconciled

with     gross           negligence              because           [T.S.] had already suffered his

grave injury.

        So,        any        lack        of     foresight          or     carelessness on behalf of
                                                               i

Day's        omissions relevant to a capital murder claim are seriously

undermined           in        this case by the elements of criminal negligence.

Again,       why?

        First,           Day       did         not reasonably forsee that allowing [T.S.]

to     remove        his        lifejacket              and    ,to       play in the water while she
                                                               I
                                                               I
sat     at     the waters' edge watching: him, does not by any statutory
                                                               F


standard reach the level of intentional murder or manslaughter.
                                                               i
        Finally, as demonstrated abov,e, althouqh the delay of seeking
                                                               t

adequate or timely medical care for [T.S.] was minimal,                                       it cannot

be disputed,             or shown beyond a reasonable doubt,                           that the medical

care     [T.S.J           did receive was inadequate from a medical standpoint,

and     was        certainly              timely measured by the location of which the

drowning           occurred,              and     the     amount of time it would have taken

for emergency personnel to have arrived after being notified.

        Again,           if    Day         is     to     be held accountable by any means as

to     the tragic drowning death of her step-son,                                 it must fall under
                                                               i

the     elements              of     criminal           negligence.          This was a far cry from
a     capital        murder;          it was certainly not manslaughter. This cause

should        be     reversed              and     an     order          of acquittal entered,    or in

alternative,             reform the judgment to criminal negligence.

                                                         (23)
Argument in Reply to the [SB], Issue Two:


        Apparently              out        of    desparation, the [writer] plucks Acosta
               *
v.     State,           out     of        the    air to support his 12-line argument and

conclusion he urges upon the Court.

        While he continues to denigrate and convolute Day's argument

relevant           to     Issue           Two,    the     [writer]        accuses Day of taking a

"piecemeal approach."

        First/           the        [writer's]          reliance     on    Acosta   is misplaced.

And,     since           the        [writer]       chooses     this line of approach/ it is

fair     play to demonstrate the State's continued misrepresentation

of     facts        at        trial, and certainly by the incorrect standard the

[writer] now assumes.

        Day's           argument           as    to Dr. Fernandez's revised opinion           was

not     submitted              as     a     piecemeal      'approach.       To the contrary, the

facts     demonstrate                 that       Dr.     Fernandez's        improbable opinion --
                                                           i
or for better words -[lack] of a conclusive finding of the corpus

delicti— was premised not on medical sciences, but on extraneous

facts     that           were        entirely          unrelated     to [T.S.'] death, and was

legally        insufficient to prove capital murder beyond a reasonable

doubt.


        Day        set        forth        her    facts and supporting case precedent in

Batterbee v. State, 537 S.W.2d 12 (Tex.Crim.App. 1976). Batterbee

is     still        good law. The [writer] .conspicuously evaded Batterbee,

and failed to offer any contrary line of authority.



* - 429 S.W.3d 621/ n. 47 (Tex.Crim.App. ;2014)


                                                        (24)
        Next,           the        [writer]        misrepresents               the     facts   as to Day's

contentions                  against        the     State's            egotistical,        self-purported

expert, Andrea Zaferes. SB at 69.

        Day's           argument        in        her     brief in no way challenges Zaferes

expertise.              See        Appellant's           Brief         at     34-39. Day simply stated

the facts as they unfolded at her trial. Day made the appropriate

record citations, contrary to the [writer's] misstatements.

        In        her        brief,     it        was     (and         is) Day's arguments that the

evidence           is        legally        insufficient to support the jury's verdict
                                                                 i
as     to     capital              murder. This argument is founded on sound prece

dent,       not allusions such as with the State's case.

        The        State           placed     great emphasis on Zaferes testimony, and

also        the     testimony           of        Dr. Fernandez. The State's overreach in

this        case        is     appalling.           The        weakness         of the State's case is

obvious.           Dr.        Fernandez's           legally insufficient facts warranting
                                                                 i

his     amended              opinions        based        on 'Day's            prior murder conviction

cannot        stand.           The     State        graciously               conceded this fact during

a     pretrial           proceeding. See Appellant's Brief at 35-36; see also

7-RR-69,          71-75, & 103).

        It        was        the     sufficiency of the evidence that ESay challenged

relevant           to        the     lack of a corpus delicti,                       and that Zaferes and

Pena's        side-line              information           to Dr.           Fernandez, did not provide

a     proper        nexus           to establish the prior                     conviction has anything

to do with [T.S.'] drowning.                                     j

        Day respectfully                 asks           this         Court    to     review her argument

set     forth           under Issue Two.            The evidence in this case,                  in accord
                                                                 i


with Batterbee:., is legally insufficient, and warrants reversal.

                                                          (25)
See Deschenes v. State, 253 S.W.3d 374, 381 (Tex.App.- Amarillo ,

2008, no pet.)              (proof           that     amounts      to only a strong suspicion

or     mere        probability              of guilt is insufficient to sustain a con

viction) .

        Dr.        Fernandez's              mere suspicion (as well as Zaferes's) that
                                                           i
this        case        represented           a homicide because of Day's prior murder

conviction,              does not provide reasonable proof that [T.S.'] death

was    a      factor        due        to     the     other conviction.     The fact remains,

                                                           '                     ...
the     cause           of death was drowning,                 but the corpus delicti remains

undetermined,              and        this     Court       should find the evidence legally

insufficient and reverse this cause with an order for acquittal.



Argument in Reply to [SB], Issues !Three and Four:

        Issues           Three        and Eour are i|ncorporated in the SB- Day will

also incorporate her reply hereto.:

        ISSUE THREE: The evidence is (legally insufficient to support

the jury's verdict for Injury to a Child.

       Although Counts Two and Three of the indictment were waived,

as     to     punishment,              the     fact is that Day remains [convicted] of

[both]         Counts. (III-CR-422-424-Judgment).

       Day raised               her     argument as to Count Two in order to assist

the     Court           in analyzing           how     the jury most likely used Theory 2

of Count One in finding Day guilty by [OMISSION.]

       So,         it     was     necessary           to   submit the brief argument as so

noted in Day's brief. See Appellant's Brief at 38-39.

       Day         relied        on     (and        argued)      the same statutory principles

                                                      (26)
relevant           to     Count              Two's        omission           elements        as to Injury to a

Child was legally insufficient.

        Again,           the           [writer]           completely              ignored     the   affirmative

defense        statutorily                    applicable              in     an     injury     to a child case

by     omission.              See           Appellant's              Brief at 28-relying on § 22.04's
statutory affirmative defense. Id. at (1)(2)(A), holding:

        (1)-        It        is        an        affirmative              defense     to prosecution under

this    section:

        (2)- for a person charged with an act of omission ... that

        (A)-        there              is     no        evidence that, on the date prior to the

offense charged,                   the defendant was aware of an incident of injury

to the child ... and failed to report the incident



        Day        respectfully                    requests           the Court to consider the logic

of     her     argument                 relevant              to     "Omission Theory 2" of Count One
                                                                      I
                                                                      i

in     conjunction                 with           the     jury'si verdict of guilt by "omission"

in Count       Two of          the          indictment.               '
                                                                      I

        Where           the        evidence              is        legally        insufficient in Count Two

under        the        affirmative                 defense           provision,       then the evidence is

also     legally              insufficient                    to have supported the jury's verdict

under Theory 2 of Count One, by omission.

        As     with           Issue           Three           here,        the State also cited Price v.

State,        626        S.W.2d              833,       836 (Tex.App.-Corpus Christi, 1981, no
                                                                      i
pet.),, as          is        reasoning to abort Issues Three and Four. But, the

reliance           on     Price              is     also misplaced.                Price dealt with a:., true
                                                                      i

abandonment              of        a        count, [prior]': to the case going to trial. It
                                                                      4


has     no     applicability here where Count Two and Three were waived

                                                               (27)
for punishment only. The same applies to Issue Two as to Price


        ISSUE FOUR: The evidence was legally insufficient to support

the     jury's        verdict        of     guilt     on Abandonment/Endangerment of a

Child.
                                                           i




        As     to     the     jury's verdict with Count Two of the indictnmeht

the State also [waived] punishment only in Count Three.

        Day        sufficiently           argued     the        legally insufficiency of the

evidence           as to the verdict in.Count Three. See Appellant's Brief

Issue        Four.     So,        there is no need to submit additional argument

here.        The     evidence        as     to     Counts        Three and Four were legally

insufficient           and        this     Court     should        reverse the [convictions]

and enter an order of acquittal on both verdicts.


Argument in Reply to the [SB],                      Issue Five:
                                                         I
                                                         i
      .The evidence was legally insufficient as to venue.


        The     statutory          disposition of venue at the time of the case

here is governed by Tex.Code Crim.Pro. 13.18.

        Forthright,           while       citing      the appropriate standard and the

language        of     Article        13.18,       Day         inadvertantly   noted article

13.08     which        is     a    technical misprint. See Appellant's Brief at

50,     FN*/       holding:        "If     venue      is       not specifically stated, the
proper        county        for    the     prosecution           of   offenses is that which

the offense was committed." Id. atfl3.18, TCCP.
                                                         i
        This       statutory        enforcement is noted by the State's closing
argument noting:
                                                         i

                                                   (28)1
       "I     want           to        talk        to     you   briefly about paragraph 11. It's

venue,        okay,           and           the     judge       read that to you. The location of
                                                                  i

where        [T.S.].          died           doesn't        matter.       We know that the defendant

was south of Bob Hall Pier. (Bold and Bracket emphasis added).

(14-RR-40).



       B. The [writer's] reliance on Schmutz v. State/ 440 S.W.3d
                                                                  i
             29 (Tex.Crim.App. 2014) violates the provisions of                               the
             Ex Post Facto Clauses of                           the United States and    the Texas

             Constitutions.


       Day        has        the        absolute right to be free from the application

of     an     Ex Post Facto violation. The [writer's] absolute reliance

on     Schmutz           is        not        only        misplaced,       but is a direct violation

of     Article           1        §§        9 & 10 of the United States Constitution, and

Article 1 § 16 of the Texas Constitution.
                                                                  j
       Prior        to        Schmutz/              the     Court     of Criminal Appeals'   case of

Black        v.     State,              645 S.W.2d 789 (Tex.Crim.App. 1983) controlled
                                                                  i

the     standard              of        review when reviewing a venue challenge. Black

held        (and        numerous              appellate          courts     followed) that the State

had     the        burden              of     proving venue beyond a reasonable doubt and

the     failure              to        do     so was reversible error under the acquittal

standard.           Until              Schmutz,           the    appellate courts were split. But

the     Thirteenth                 Court           of     Appeals stood firm in its standard of

review        prior           to        Schmutz.           See Appellant's Brief at       45-50, and

cases cited therein.                         Schmutz now sets a new standard that followed

Day's date of the alleged incident1, October 5, 2012.
                                                                  I
       Day contends                    the        date     of her allegation was governed under

                                                            (29)'
Black,- .; supra;         Lemoine           v. State, 85 S.W.3d 385 (Tex.App.-Corpus

Christi       2002,       reh.denied);            Rosillo       v.     State,   953 S.W.2d 808,

811    (Tex.App.-Corpus                Christi       1997,      pet.ref'd);        Cunningham v.

State,       848     S.W.2d          891,     906 n.1!(Tex.App.-Corpus Christi 1993,

pet.ref'd); Jones v. State,                      979 S.W.2d 652 (Tex.Crim.App. 1998).


      1. Caulder v. Bull,              3 U.S. 383 |(1798)



      An     ex    post     facto           law is one passed [after] the occurrence
of    a fact or commission, of an act, which retrospectively changes

the    legal       consequences             or    relations of such fact or deed. The

United States and Texas Constitutions both                             forbid such violations

of    law.        Carmell       v.   Texas,      529 U    S.   513,    120 S.Ct.   1260 (2000);

Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990); Chalin

v. State, 645 S.W.2d 265 (Tex.Crim.App. 1983).

      The     Caulder       Court           established        four specific categories in

deciding whether a certain law violates the ex post facto clause:


      lst)-Every law that makes an      action done before the
      passing of   the  law,  and which was innocent when done;
      and punishes such action.

      2nd)-Every law that aggravates a                                crime,    or makes it
      greater than it was, when committed.

      3rd)-Every law that [changes the punishment] and inflicts
      a greater punishment than the law annexed to the crime
      [when committed].

      4th)-Every          law        that alters the legal rules of evidence,
      and     receives          less,       or    different          testimony, than . the
      law required at the time of the commission of.the offense
      in order to convict the offender.

See 3 U.S. (3-Dall.), at 390.



                                                   (30)
      The     United            States           Supreme           Court     has    repeatedly followed

Caulder's           200        year-old           exposition of the ex post facto clause,

and     was        re-enforced              in     Carmell'v.             Texas,   529 U.S.   at 522,   525

(2000).                                                            j
      2 - The relevant Caulder category applicable here.
                                                                   i




      Day invokes the fourth Caulder category.                                     The case of Schmutz

as    the      [writer]              has     applied              here, violates the ex post facto

clause        because           it        changes        the relevant scope of review of the

legal       sufficiency               of     the        evidence           from    [beyond a reasonable

doubt],        to        the        new     review           of        preponderance of the evidence.

Also,       the case now requires a harm analysis, wherein under Black

and its progeny, a venue error required an acquittal.

      3. The required harm analysis under the preponderance of
         the evidence standard still]requires reversal of this
            case and a remand for a new! trial.


      Venuse         in        this        case        was        a'    major issue.    The elements of

the     offense           all accrued in Kleberg County, Texas. All purported

expert        testings              conducted           by        Andrea Zaferes were not properly

conducted           in        the     area        where           [T.S.] drowned. There were major

differences              in     the        conditions of the currents and tide levels,

depths        of     the        water,           and     other           factors (elements) that were

not   tested in the                 correct       area.

      Testimony               from the State's key witness, Rene Ruiz, was based

on    his      perceptions                 as viewed in Kleberg County, Texas, and the

elements           adduced           from        his testimony played a key part at Day's

trial.        This is equally true with respect to testimony from Scott
                                                                   t
Cross.-


                                                         (31)
       Perhaps          most        damning            to    the State's case here is the fact

that        not     one       Nueces           County        law     enforcement officer actually

visited the area where [T.S.] drowned.

       Finally,           immediately                 after [T.S.] drowned, authorities from

Kleberg           County           looked into the case. Ironically, those authori

ties        determined              that        no     crime had been committed,         and did not

pursue        the       drowning               accident        any further. This Court must ask

itself,           why     did        the        two     Prosecutors in this case violate the

venue statutes in order to make this case its priority.

       4. A 44.2(b) Harm Analysis, although the improper standard,
          requires reversible error because the venue issue had a
          major effect on Day's substantial rights.


       A review of the voir dire demonstrates that every juror had a

substantial              amount           of     knowledge           before   hand   of the facts of

this        case,       due         in     large        to     the thrust of the media coverage
                                                                i

                                                                i
prior        to     Day's trial. Defense counsel filed a Motion for Change

of     Venue        which           was        denied.       Had Day known before hand that the

[writer]           would           force        a harm analysis on this venue issue,            then

Day     would           have briefed her issue in a different manner and used

the change of venue denial to her advantage.

       In     light           of     this fact, if this Court concludes that a harm

analysis           must        be        conducted,           then     the    Court should stay this

proceeding              and        allow Day to brief the issue for a harm analysis

based on the harm she suffered by the pretrial exposure.

       However, under Black's proper standard of review, the evidence
                                                                i

is legally insufficient                          and        this Court should reverse and enter

an order of acquittal.

                                                            (32)
Argument in Reply to the [SB], Issue Six:


       A.    The Jury's Negative Finging on the Elements of
             Criminal Negligence is legally insufficient.


       The     State's        reliance        on     Giesberg        v.   State,     984 S.W.2d    245

(Tex.Crim.App.              1998),     is     not only misplaced, but is undermined

by     Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989);

see     also     Cleveland v. State,                 177 S.W.3d 374, 385-86 (Tex.App.-

Houston [1st Dist.]             2005, pet.ref'd).

       Both the State and Defense argued to the jury on the elements

of     criminal        negligence,           making          it    both     an    issue and defense

element of the case,             as opposed to capital murder or manslaughter

See e.g.       14-RR-51-55, 80, 84-85.

       The     [writer]        contends           this       Court    has        no jurisdiction to

conduct a review of Day's argument , because,                               inter alia,    defenses

and     affirmative           defenses        are        found in Chapters Eight and Nine

of    the Penal       Code.    SB at 75.

      But,      as     with     the        bulk of the [writer's] contentions, this

one     should        be labled as a fable as well.                       Section 22.04(a)        also

provides        an     affirmative          defense section otherwise not included

under        Chapters Eight and Nine.                And, because the "criminal negli

gence" issue arose from Count One and Count Two of the indictment,

there        is nothing that prevents Day from raising a bonified claim

challenging           the     legal        sufficiency            here.     See     Tello v. State,

180     S.W.3d        150,     158     (Tex.Crim.App. 2005); see also Montgomery

v.    State,    369    S.W.3d       188,    193    (Tex .Crim.App.          2012)

      Under      Article        V     § 6(a)         ofj      the Texas Constitution, [all]
                                                         f
                                                   (33)
Courts        of     Appeals           shall           have appellate jurisdiction         ...   con

clusive        on        all     questions of fact brought before them on appeal

or error."          Cleveland          v.    State,       177.S.W.3d at 386.
                                                                I
       In     civil cases, appellate courts have jurisdiction to review
                                                                i


the        evidence        for legal sufficiency when an appellant challenges
                                                                t

the        legal     sufficiency                 of     the     evidence      to support the jury's

[adverse] finding. Id. at 386; Sterner, supra at 690.
                                                                i

Adopting Sterner's Standard of Review:


       Consistent              with        reliance           on ;civil law, the proper standard

in     criminal           cases        for        review        of    legal sufficiency challenges

to     a     jury's [negative finding] on an issue the defendant sought
to prove/          is the same standard applied in civil cases.

       Under        this standard Day must overcome two hurdles respective

of this Court's analysis and review of her challenge.

       First/        this        Court must examine the record for evidence that

supports           the     finding           of        criminal       negligence/    while ignoring

all     evidence           to     the contrary. Howard v. State/ 145 S.W.3d 327,

334 (Tex.App.-Fort Worth 2004, no pet.).

       Secondly,           if     no        evidence supports a negative finding, this

Court        then        examines           the        [entire]       record to determine whether

it     establishes              the        contrary        proposition as a [matter-of-law];

Id.,    (citing Sterner, 767 S.W.2d at 690).

       So,     as        noted        in     Appellant's             Brief    at 53, as a matter of

law     the        jury's negative finding on the issue of criminal negli

gence        would       compel            the        conclusion       that    there is evidence to
support a criminal negligence conviction, and the jury's negative
                                                         (34)
finding        was        legally       insufficient. The [writer's] argument with
respect to this issue is without merit.

       Because           the   evidence        is    legally      insufficient      to support

the     jury's          negative        finding of criminal negligence, this Court

must, .after conducting the proper standard of review,-conclude this

fact,        and     reverse        Day's      conviction and reform the judgment to
                                                       i
                                                       i

reflect        the       criminal       negligence         finding,     and    set this cause

for a new punishment hearing.
                                                       j
Argument in Reply to the [SB], Issue Seven:


       ISSUE SEVEN: The evidence was legally insufficient to
       prove Day was remorseless.                      j
                                                       i
                                                       i




       Here        is     another       firm    example      of     how the [writer] strays

from the facts and flat out attempts to obscure the issues before

this    Court.                                         •

       In     his        reply,     the     [writer] states: "As noted above, supra

p.56,        the        State's     burden of proof applies only to the elements

of     the offense. Tex.Penal Code § 2.01.:.. "As noted above, supra

p.59, evidence of a defendant's lack of remorse may be considered

by a jury as evidence that he intended to commit capital murder."

       The    [writer's] reply brief is rife with these types of double

edged        allusions.           Day     respectfully       asks     the     Court to conduct

the appropriate review as reflected in her Brief at 54-56.

       Day's arguments sufficiencly provide proof that the evidence,

as     in     the        manner     used       by the State that she was remorseless

was legally insufficient.



                                                    (35)
Argument in Reply to the [SB], Issue Eight:



       A.    Prosecutorial                Misconduct.




       Forthright,                 as     with        his     multiple            misrepresentations, the

[writer]              accuses           Day        of complaining that the trial court erred

in denying her motion to suppress.,See SB at 77,                                         n.22.

       Although              the        trial        court     did          in    fact err by denying the

motion           to     suppress,              this was [not] Day's argument.                    Day merely

sets        out        the     issues relevant to! the motion to suppress hearing
                                                                   i

and how the State used perjured testimony on that score.

       Secondly,              the        [writer] contends that Day waived this error,
                                                                   i
                                                                   j

(use        of        perjured           testimony) because her lawyers failed to make

an objection.

       The        [writer]              ignores        the     fundamental            error   aspect urged

by Day at Appellant's Brief-66.

       Also,           the     [writer]              conspicuously evades Day's claim of the

prosecutor's                 misconduct              related           to   the 165 objection that her

lawyers           were        forced           to     make     during            the course of her trial

Appellant's Brief at 61.

       There           is    nothing inappropriate about the structure of Day's

arguments              related           to        Issue     Eight. The.prosecutor's misconduct

rose        to        the     level           of     fundamental error and this Court should

conduct           a     review under both 44.?.(a),as well as                             in the interest

of     justice. Perryman v. State,                             798 S.W.2d 326, 329, Appellant's

Brief at          67.

       The misconduct                   here warrants a                reversal and a     new trial.



                                                            (36)
Argument in Reply to the [SB], Issue Nine:


       A.    Ineffective          Assistance of          Counsel       Claims.


       Whi-.le it is         true        in     the     majority of cases that the record

on     direct        appeal        is        simply inadequate to reflect the failings

of counsel,          this is not that type of case.

       As     to     Day's        argument of counsel's failure to object to the

State's        knowing        use        of     perjured           testimony,       the record is not

only        supportive        of        this        facts,        counsel had secured a hearing

on     the     motion        to     suppress           the        very same evidence he allowed

to     come        in without a further objection. Indeed, it appears from

the     pretrial           hearing           that the trial judge was not aware of the

perjury,           and     counsel's           failure           at trial allowed the statement

to    come    in.


       Secondly,          when      an        attorney sits by idle and allows a State

prosecutor           to     make        repeated        comments           on his client's failure

to     testify           (clearly        an     objectionable              error),     and allows the

State to thrust its case on his client's alleged lack of remorse,

(also        objectionable),                 then     that        lawyer     has failed to protect

his client's interests in a fundamentally fair trial. And, that's
                                                             j
precisely what             occurred            in this case. The record supports Day's

claims        of     ineffective assistance of                      counsel    on    this   score.   This

Court is obliged to conduct a review of her claims.

       Day's        arguments           in     her     Appellant           Brief     at 68-71 support

her     ineffective           counsel           claims       !and this Court should find her

lawyers ineffective and remand this case for a new trial.



                                                      (37)
Argument in" Reply to the [SB], Issue Ten:


       A.    The. Trial Court's Error in Admission of Evidence in
             Violation of Texas Rules of Evidence, 403, 404, and
             405.




       Contrary          to    the        [writer's]         'misrepresentations/            Day   did,
                                                             i


in     fact,        provide      a clear argument for her contention made, and

with        appropriate         citations            to    authorities         and to the record.

See     Appellant's            Brief at 72, citing (8-RR-159-passim, the exact

record        reference         where          the     jail      calls came in);see also Id-,

at 72, citing four controlling case precedents-

       Day     requests         the Court to review her claims argued in Issue

Ten.



                              CONCLUSION        AND    PRAYER       FOR   RELIEF




       Appellant         Laura        Day,       pro      se/ respectfully prays that this

Court        reverse      the     decision             of the trial         court and remand with

an     order        to   enter        a       judgment of acquittal; or alternatively/

reverse and remand              for       a   new trial




                                                          Respectfully submitted



                                                          Laura Day, Appellant pro se
                                                          TDCJ-CID # 1863665/Crain Unit
                                                             1401   State    School   Rd.,
                                                          Gatesville,         TX 76599




                                                      (38)
                                 CERTIFICATE     OF    SERVICE




       I     hereby      certify      by   my signature below that I have mailed

a     true       and correct copy of the foregoing Reply Brief to counsel

for        the   State     by placing the same into the United States Mail,

first-class postage prepaid/ addressed to:

                               Mr. Adolfo Aguilo, Jr./
                               Assistant Distrijct Attorney
                               105th District Court
                               901   Leopard,   Room    206
                               Corpus, Christi,        Tx   78401




On June [         I   ], 201




                                                    Laura Day, Appellant pro se




                                             (39)
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