                                                                           ACCEPTED
                                                                      03-14-00729-CR
                                                                             4213609
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 2/19/2015 2:04:15 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                    No. 03-14-00729-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      2/19/2015 2:04:15 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

         CLIFTON CARL LAMAR
                           VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72,785

                          ******
                  STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000


Oral Argument Not Requested


                             1
                   TABLE OF CONTENTS

ITEM                                                       PAGE

Index of Authorities …………………………………………………………………               4

Statement Regarding Oral Argument ………………………………………..          6

Statement of the Case ………………………………………………………………               6

Statement of Facts ……………………………………………………………………                7

Summary of State’s Argument …………………………………………………..            8

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

       First Issue on Appeal ……………………………………………………….         10
                    EVIDENCE SUFFICENT TO SUPPORT GUILTY
                    PLEA UNDER ART. 1.15 CCP?

            Standard of Review …………………………………………………          10

            Application and Analysis …………………………………………       11

       Second Issue on Appeal ……………………………………………………          17
                  EVIDENCE ON PUNISHMENT IN UNITARY
                  PROCEEDING BEFORE THE TRIAL COURT
                  SUFFCIENT TO SUPPORT GUILTY PLEA
                  WHERE APPELLANT JUDICALLY CONFESSED?

            Application and Analysis …………………………………………       17

       Third Issue on Appeal ………………………………………………………          19
                   DID APPELLANT FAIL TO PLEAD GUILTY TO
                   OFFENSE BECAUSE HE DID NOT SEPARATELY
                   PLEAD TO JURISDICTIONAL ELEMENTS?

            Application and Analysis ………………………………………..      20


                               2
    Fourth Issue on Appeal ………………………………………………….         23
                MUST JUDGMENT BE MODIFIED TO REFLECT
                THERE WAS NO PLEA BARGAIN?

         Application and Analysis ……………………………………….      23

Prayer …………………………………………………………………………………….                24

Certificate of Compliance with Rule 9 ………………………………………   25

Certificate of Service ……………………………………………………………….        25




                             3
                   INDEX OF AUTHORITIES

CASES                                                            PAGE

Barfield v. State, 63 S.W. 3d 446 (Tx. Cr. App. 2001) ………………..      18

Brooks v. State, No. 03-13-00252-CR, ……………………………………..            13, 18
     2014 Tex. App. LEXIS 6588 (Tx. App. Austin 3d Dist.
     2014 no pet.), not designated for publication.

Chindaphone v. State, 241 S.W. 3d 217 ………………………………… 11, 13-14
     (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.)

Cooksey v. State, No. 06-13-00096-CR, ……………………………………                16
     2014 Tex. App. LEXIS 7400 (Tx. App. Texarkana 6th
     Dist. 2014 no pet.), not designated for publication.

Harris v. State, 204 S.W.3d 19 ………………………………………………… 11, 21
      (Tx. App. Houston 14th Dist. 2006 rev. ref.)

Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………..            10

Jones v. State, 857 S.W. 2d 108 ……………………………………………….. 14-16
      (Tx. App. Corpus Christi 13th Dist. 1993 no pet.)

Ex Parte Martin, 747 S.W. 2d 789 (Tx. Cr. App. 1988) ………………         10

Menefee v. State, 287 S.W.3d 9 (Tx. Cr. App. 2009) …………………..     14-16

Montoya v. State, No. 14-96-00072-CR, …………………………………...              17
     1998 Tex. App. LEXIS 1857 (Tx. App. Houston 14th
     Dist. 1998 no pet.), not designated for publication.

Ricondo v. State, 634 S.W. 2d 835 (Tx. Cr. App. 1982) ……………….       22

Taylor v. State, No. 03-14-00300-CR, .……………………………………….              17
      2014 Tex. App. LEXIS 11324 (Tx. App. Austin 3rd Dist.,
      2014 no pet.), not designated for publication.


                                   4
Tindel v. State, 830 S.W.2d 135 (Tx. Cr. App. 1992) …………………...   20

Walker v. State, No. 03-03-00018-CR, ……………………………………….            15
     2003 Tex. App. LEXIS 5935 (Tx. App. Austin 3rd Dist.
     2003 no pet.), not designated for publication

OTHER

Texas Penal Code

     Section 49.04(a) ……………………………………………………………..                  11

     Section 49.09(b)(2) ………………………………………………………..                 11

Texas Code of Criminal Procedure

     Article 1.15 …………………………………………………… 10-11, 14-15, 17




                                   5
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Clifton Carl Lamar, was charged by indictment

with driving and operating a motor vehicle in a public place while

intoxicated on April 3, 2014, having been two or more times convicted

of Operating a Motor Vehicle in a Public Place While Intoxicated.

Included in the first paragraph of the indictment were allegations of two

specific prior driving while intoxicated convictions; one in Williamson

County in 1986, and another in Bell County in March of 2014. (CR-4).

      The indictment also contained a second paragraph alleging a prior

felony driving while intoxicated conviction in Williamson County in

1991 for purposes of enhancement. (CR-4).

      The Appellant entered pleas of guilty and true to the allegation in

each paragraph of the indictment. (RR3-6, 7).       There was no plea

bargain with the State. (RR3-7).

      The Appellant was found guilty by the trial court and the

enhancement allegations were found true and the court sentenced the




                                    6
Appellant to 10 years in the Texas Department of Corrections and a fine

of $750.00. (RR3-34).

      The Appellant gave timely notice of appeal (CR-43) and the trial

court certified his right to do so. (CR-52).

STATEMENT OF FACTS

      The Appellant waived a jury and entered a plea of guilty to the

offense charged in the first paragraph of the indictment and of true to

the second paragraph. (RR3-6, 7).         He executed a written judicial

confession admitting all of the allegations in the indictment, expressly

including the enhancement allegations. (CR-34).         During the plea

hearing the trial court took judicial notice of his judicial confession

without objection. (RR3-7, 8).

      The first paragraph of the indictment states as follows:

                           “FIRST PARAGRAPH

            while driving and operating a motor vehicle in a public
            place was then and there intoxicated, and, the said
            Defendant had previously been convicted two or more
            times as follows for the offense of Operating a Motor
            Vehicle in a Public Place While Intoxicated:

            (1) in Cause Number 10,446 of the County Court of
            Williamson County, Texas on the 14th day of November,
            1986, for the offense of Operating a Motor Vehicle While
            Intoxicated in a Public Place; and


                                      7
            (2) in Cause Number 2C13-04982 of the County Court
            at Law of Bell County, Texas on the 7th day of March, 2014,
            for the offense of Operating a Motor Vehicle While
            Intoxicated in a Public Place. “(CR-4)


      The judicial confession signed by the Appellant contained an

affirmation that he had read the indictment and had committed “each

and every act alleged therein” and that all enhancement allegations in

the indictment are true and correct. (CR-32). He also declared under

penalty of perjury that everything contained in the plea papers that

included the judicial confession were true and correct. (CR-35).

      During the plea proceeding the trial court asked: “To the offense

in paragraph 1, how do you plead? Guilty or not guilty”. The Appellant

responded “Guilty” (RR3-6) and acknowledged to the court that he was

pleading guilty because he “committed the offense as alleged and were

previously convicted as alleged.” (RR3-7).

SUMMARY OF STATE’S ARGUMENT

      The Appellant executed a judicial confession confirming that he

had read the indictment and that each and every allegation in that

indictment was correct. The trial court took judicial notice of that

judicial confession without objection. The judicial confession alone was


                                    8
sufficient to support his plea of guilty. There is no requirement that it

be sworn.

      While the court may consider evidence at “the punishment phase”

of the unitary proceeding before the trial court in assessing the

sufficiency of the evidence to support the plea, that is unnecessary

because of the sufficiency of the judicial confession.

      The Appellant entered a plea of guilty to all of the allegations

contained in the first paragraph of the indictment which included both

the primary offense and the jurisdictional elements of the felony driving

while intoxicated offense and he confirmed to the trial court that all

allegations were true and that he committed the offense as alleged.

      There was no plea bargain in the case and, while it is questionable

that the judgment actually so states, to the extent that the court

determines that it does it should be modified to correctly reflect that

there was no plea bargain.

ARGUMENT AND AUTHORITIES

      The first two of the Appellant’s issues on appeal deal with

different aspects of the single issue of the sufficiency of the evidence to

support his plea of guilty, however, he has numbered them as separate



                                     9
issues. Although they overlap the State will attempt to answer them in

the same way.

First Issue on Appeal

      Was the evidence sufficient to support the finding of guilty

pursuant to the Appellant’s plea of guilty as required by Article 1.15,

Texas Code of Criminal Procedure?

Standard of Review

      When the accused enters a plea of guilty the standards of review

set out in Jackson v. Virginia, 443 U.S. 307 (1979), as to sufficiency of the

evidence are inapplicable. Ex Parte Martin, 747 S.W.2d 789, 792-93

(Tex. Crim. App. 1988).      Instead the sufficiency of the evidence is

governed by Article 1.15 of the Code of Criminal Procedure.

      Article 1.15 provides that in a non-capital felony case, where the

defendant waives trial by jury and enters a plea of guilty or nolo

contendere, it is necessary for the State to “introduce evidence into the

record” that shows the guilt of the defendant and that such evidence be

accepted by the trial court as the basis for its judgment. See Martin at

793. The appellate court will affirm the trial court’s judgment under

Article 1.15 if the State introduced evidence that embraces every

essential element of the offense charged that is sufficient to establish

                                     10
the defendant’s guilt. A judicial confession, standing alone, is sufficient

to sustain a conviction upon a guilty plea under Article 1.15.

Chindaphone v. State, 241 S.W.3d 217, 216 (Tx. App. Ft. Worth 2nd Dist.

2007 rev. ref.). A judicial confession stating that the defendant has read

the indictment and that he committed each and every act alleged

therein is sufficient to satisfy Art. 1.15. Chindaphone at 219.

Application and Analysis

      Section 49.04(a), Texas Penal Code, provides that a person

commits an offense if the person is intoxicated while operating a motor

vehicle in a public place. Section 49.09(b)(2) of the penal code states

that an offense under Section 49.04 is a third degree felony if it is shown

that he has been previously convicted two times of any other offense

involving operating a motor vehicle while intoxicated. “Elevating a

misdemeanor to a felony offense by using a previous DWI conviction

does not enhance punishment, but instead creates an entirely new

offense and vests the district court with jurisdiction.” Harris v. State, 204

S.W.3d 19, 27, 28 (Tx. App. Houston 14th Dist. 2006 rev. ref.) (emphasis

supplied). Thus the prior convictions are elements, albeit jurisdictional,

of that entirely new offense.




                                     11
      In this case the first paragraph of the indictment charged all of the

elements that new offense, alleging that the Appellant operated a motor

vehicle in a public place while intoxicated and that he had been

previously convicted of two specified driving while intoxicated offenses.

      In the judicial confession signed by the Appellant and declared by

him to be true (CR-34, 35) that Appellant stated that “I have read the

indictment or information filed in this case and I committed each and

every act alleged therein….all of the acts alleged in the indictment are

true and correct. I am guilty of the instant offense…” (CR-6).

      During the plea proceeding, the following occurred:

            “THE COURT: To the offense in paragraph 1, how do you
             plead? Guilty or not guilty?

             THE DEFENDANT: Guilty

             THE COURT: And to the offense in paragraph 2, alleging
             you were previously convicted in Williamson County, how
             do you plead? True or not true?

             THE DEFENDANT: True

              THE COURT: Are you pleading guilty and true freely and
              voluntarily?

             THE DEFENDANT: Yes, ma’am

              THE COURT: Has anyone made any promises, forced you,
              threatened you or intimidated you in any way to get you
              to plead guilty and true?


                                    12
              THE DEFENDANT: No, ma’am

              THE COURT: You’re pleading guilty because you
              committed the offense alleged and you were previously
              convicted as alleged; is that true?

              THE DEFENDANT: That’s true, Your Honor.” (CR3-6, 7)
              (emphasis supplied).

      The judicial confession signed by the Appellant and approved by

his counsel stated that he had read the indictment and that he

committed each and every act alleged.        The first paragraph of the

indictment sets out all of the elements of the felony driving while

intoxicated offense.    The Appellant acknowledged that all of the

allegations in that paragraph were true and correct before the trial

court and the court approved all of the matters contained in the “plea

papers”, which included the judicial confession. The court accepted his

plea. (RR3-7).

      In the plea hearing the State asked the trial court to take judicial

notice of the judicial confession contained in the plea papers and the

trial court did so without objection. (RR3-7, 8). When the trial court

takes judicial notice of a judicial confession the State is not required to

introduce it into evidence in order to support the plea. Chindaphone at

219; See also Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. LEXIS


                                    13
6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for

publication. (Op. at pg. 6). That judicial confession alone is sufficient to

support the Appellant’s plea of guilty. Chindaphone at 219.

      The Appellant attempts to rely upon Menefee v. State, 287 S.W.3d

9 (Tx. Crim. App. 2009) which sets out a non-exclusive list of methods

by which a plea may be supported under Article 1.15. He claims that

because Menefee refers to sworn written admissions of guilt and the

judicial confession in this case was not formally sworn it is insufficient.

Menefee, however, states that a plea of guilty is not a judicial confession

and does not support the plea. Menefee at 17, 18. Here it was not merely

a matter of a plea of guilty, but of a written judicial confession.

      The Appellant recognizes Jones v. State, 857 S.W.2d 108 (Tx. App.

Corpus Christi 13th Dist. 1993 no pet.) but simply dismisses it with the

opinion that it cannot be the law. In Jones the defendant signed a

judicial confession admitting that he was guilty of the offense as alleged

in the indictment. That judicial confession was signed by the defendant

and approved by both the State and the trial court. It was unsworn. The

defendant attacked its sufficiency under Article 1.15 on the ground that

it was unsworn and not evidentiary and its reference to the “charging

instrument” was vague. The court of appeals noted that it was offered


                                     14
and admitted into evidence, and, although unsworn, was approved by

defense counsel, the prosecutor and the judge. The court of appeals

said, “We find no authority that the Appellant was additionally required

to swear to the statement”. Jones at 110.

      This court apparently disagreed with the Appellant’s assessment

that Jones cannot be the law in Walker v. State, No. 03-03-00018-CR,

2003 Tex. App. LEXIS 5935 (Tx. App. Austin 3rd Dist. 2003 no pet.), not

designated for publication. Citing Jones this court said “There is no

requirement that the defendant swear to the waiver and stipulation

before the clerk or anyone else.” Walker op. at pg. 4.

      Menefee itself is not inconsistent with Jones. Referring to Article

1.15, the Menefee court said “Evidence offered in support of a guilty plea

may take many forms.         The statute expressly provides that the

defendant may consent to the proffer of evidence in testimonial or

documentary form, or to an oral or written stipulation of what the

evidence against him would be, without necessarily admitting to its

veracity or accuracy; and such a proffer or stipulation will suffice to

support the guilty plea so long as it embraces every constituent element

of the charged offense. Alternatively, our case law has recognized that




                                    15
the defendant may enter a sworn written statement, or may testify

under oath in open court….”

Menefee at 13. (emphasis supplied).

      The Appellant contends that because a sworn statement “may”

suffice, it is required. He ignores completely the express statement by

the Court of Criminal Appeals that a sworn statement is an alternative,

rather than a mandatory requirement. See Cooksey v. State, No. 06-13-

00096-CR, 2014 Tex. App. LEXIS 7400 (Tx. App. Texarkana 6th Dist.

2014 no pet.), not designated for publication at Op. Pg. 18, reconciling

the statement in Menefee with the holding in Jones.

      In this case the judicial confession contained an admission that all

of the allegations in the indictment were true and correct.          That

indictment set out in the first paragraph all of the constituent elements

of the offense charged, felony driving while intoxicated in a public place

having been convicted two or more times previously of driving while

intoxicated. The Appellant signed it and declared that it and all of the

plea papers were true and correct. In open court he confirmed to the

trial court that he was guilty and that all of the allegations in the

indictment, both as to the charged offense and the enhancement, were

true and correct. The trial court took judicial notice of the judicial


                                   16
confession without objection from the Appellant1.                     The judicial

confession was part of the plea papers filed and contained in the district

clerk’s record of the case. There was sufficient evidence to support the

Appellant’s plea of guilty under Article 1.15.

Second Issue on Appeal

       Was the evidence in the unitary proceeding upon the plea of guilty

before the trial court sufficient to support the guilty plea even though

the Appellant judicially confessed?

Application and Analysis

       Because the evidence contained in the judicial confession was

sufficient alone to support the Appellant’s plea of guilty this issue is

moot. The Appellant reluctantly concedes that a number of courts,

including this one, have held that evidence adduced at the punishment

phase of the trial may be used to support the plea of guilty as required

by Article 1.15. See for example Taylor v. State, No. 03-14-00300-CR,

2014 Tex. App. LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 no pet.), not

designated for publication, where this court held that upon a plea of
1
 By failing to object when the trial court took the judicial notice of the judicial
confession he cannot now complain as to its consideration. See Montoya v. State, No.
14-96-00072-CR, 1998 Tex. App. LEXIS 1857 (Tx. App. Houston 14th Dist. 1998 no
pet.), not designated for publication, holding that the defendant waived the issue as
to the admission of an unsworn stipulation in support of a plea of guilty under
Article 1.15.

                                         17
guilty evidence at the punishment hearing may be used to support the

plea of guilty and Brooks, supra. See also Barfield v. State, 63 S.W.3d 446

(Tx. Cr. App. 2001), where the Court held that the court of appeals erred

when it considered only the evidence at the guilt/innocence phase of a

trial in support of proof of jurisdictional elements in a felony DWI bench

trial and noting that such a trial is a unitary rather than a bifurcated

proceeding.

      In this case the Appellant is correct in his assertion that the

evidence in the punishment hearing did not establish all of the elements

of the charged offense. The Appellant testified and admitted that he had

been long treated for alcoholism at the Veteran’s Administration

Hospital on an inpatient basis (RR3-14). He also admitted having been

in prison for driving while intoxicated and that he continued drinking

after his release. (RR3-17).     He also stated that he had been on

probation before for DWI but his probation had been “taken away”.

(RR3-22). He asked the judge to consider felony probation for him for

this offense. (RR4-23).

      On cross examination he attributed the accident that gave rise to

the charged offense to having been drinking and to undiagnosed

diabetes. (RR3-24). He claimed not to remember his breath test of 0.33.


                                    18
(RR3-24. 25). He also admitted that he had been convicted of driving

while intoxicated in March of 2014 (see the second alleged offense in

the first paragraph of the indictment), less than 30 days prior to the

charged offense. (RR3-25). The Appellant admitted that he was driving

drunk when he was arrested on the charged offense. (RR3-25).

      The Appellant’s testimony did not go through the elements of the

indictment one by one. It did not touch on driving in a public place nor

did it mention one of the two previous DWI offenses alleged as an

element of the felony offense in the first paragraph of the indictment.

      If the evidence at punishment alone had to support the

Appellant’s plea of guilty then the Appellant’s point could well have

merit. But to do so, however, the judicial confession must first be

ignored. As set out above, that judicial confession is sufficient as to each

and every element of the charged offense. The Appellant’s testimony at

sentencing is perfectly consistent with that confession and tends to

reinforce it in some aspects, but the confession alone is sufficient.

Third Issue on Appeal

      Did the Appellant fail to plead guilty to the charged felony offense

because he did not separately plead to the jurisdictional elements of the

offense?

                                     19
Application and Analysis

      The Appellant concedes that the semantics of whether the

Appellant uttered the word “true” or “guilty” with respect to the

jurisdictional elements of the offense are immaterial. Tindel v. State, 830

S.W.2d 135, 137 (Tx. Cr. App. 1992). He claims, however, that the

Appellant never entered any plea that encompassed those elements.

That is simply incorrect.

            “THE COURT: To the offense in paragraph 1, how do you
             plead? Guilty or not guilty?

             THE DEFENDANT: Guilty

             THE COURT: And to the offense in paragraph 2, alleging
             you were previously convicted in Williamson County, how
             do you plead? True or not true?

             THE DEFENDANT: True

              THE COURT: Are you pleading guilty and true freely and
              voluntarily?

             THE DEFENDANT: Yes, ma’am

              THE COURT: Has anyone made any promises, forced you,
              threatened you or intimidated you in any way to get you
              to plead guilty and true?

              THE DEFENDANT: No, ma’am

              THE COURT: You’re pleading guilty because you
              committed the offense alleged and you were previously
              convicted as alleged; is that true?


                                    20
              THE DEFENDANT: That’s true, Your Honor.” (CR3-6, 7)
              (emphasis supplied).

As noted above, “Elevating a misdemeanor to a felony offense by using a

previous DWI conviction does not enhance punishment, but instead

creates an entirely new offense and vests the district court with

jurisdiction.” Harris at 27, 28. Thus the prior convictions are elements,

albeit jurisdictional, of that entirely new offense.

      In the indictment the First Paragraph charges that the Appellant

operated a motor vehicle in a public place, having been previously

convicted two or more times of operating a motor vehicle in a public

place while intoxicated. That allegation continued, after a colon, and the

same paragraph in the indictment set out two separate prior DWI

convictions, one in Williamson County in 1986, and another in Bell

County in 2014. (CR-4). Thus the first paragraph of the indictment

charged every element of the “new” offense of third degree felony

driving while intoxicated, including the jurisdictional elements. The

second paragraph alleged a prior felony DWI conviction for

enhancement of sentence.

      The trial court expressly asked the Appellant how he pled “to the

offense in paragraph 1” and he responded “Guilty”. (RR3-6). The court


                                     21
did not ask his plea to the first part of paragraph 1, but to that entire

paragraph that included the jurisdictional as well as all of the other

essential elements of the offense.

      The trial court also asked the Appellant if he was pleading guilty

“because you committed the offense as alleged and you were previously

convicted as alleged”.    The Appellant responded “that’s true, Your

Honor.” Although the Appellant undoubtedly would like to apply that

reference only to being previously convicted of the offense alleged in

paragraph 2 for enhancement purposes, that is not what the court

asked.   The court, unlike before, did not qualify the pleas as to

paragraphs in the indictment, but rather asked if the Appellant was

pleading guilty because he was guilty and because he had been

convicted of the previous offenses alleged.

      Ricondo v. State, 634 S.W.2d 837 (Tx. Cr. App. 1982), cited by the

Appellant, does not support his proposition because in that case a

bifurcated trial before a jury was held and only the part of the

indictment charging the primary offense was read to the jury. The

allegations of prior convictions were not. The defendant, thus, only

plead to that part of the indictment. This case, conversely, is a plea of

guilty before the court and is a unitary proceeding. The Appellant


                                     22
judicially confessed and entered a plea of guilty to all of the elements of

the offense, jurisdictional and otherwise.

      Even unsworn, as noted herein, the judicial confession admitting

all of the allegations in the indictment included admissions of the

jurisdictional prior convictions and the Appellant properly entered a

plea of guilty to all of those elements.

Fourth Issue on Appeal

      Must the judgment of conviction be modified to reflect that the

Appellant entered his plea of guilty without a plea bargain?

Application and Analysis

      The Appellant entered his plea of guilty to the trial court without a

plea bargain with the State. (RR3-7). The plea papers reflect that the

plea was “open”. (CR-29). The judgment of conviction recites: “Plea

Bargain: SEE ATTACHED-DISCLOSURE OF PLEA RECOMMENDATIONS

ATTACHED HERETO AND MADE A PART HEREOF”. (CR-45). There is

no apparent attachment to the judgment in the record.             The only

disclosure of plea bargain shows an open plea and therefore contains no

plea recommendations.

      While it might well be argued that the judgment does not actually

state that there was a plea bargain in this case, nevertheless, if the Court

                                     23
so interprets it, the State agrees that it be modified in order to speak the

truth.

                                PRAYER

         The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/ Bob     D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     24
     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 3522 words.

                                            /s/ Bob     D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                   CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, John A. Kuchera, Counsel for Appellant, by electronic

transfer via Email, addressed to him at johnkuchera@210law.com on

this 19th day of February, 2015.




                                            /s/ Bob     D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     25
