                                                                                PD-0143-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
  August 25, 2015                                             Transmitted 8/24/2015 9:24:57 PM
                                                                Accepted 8/25/2015 7:49:22 AM
                                                                                ABEL ACOSTA
                           No. PD-0143-15                                               CLERK



   IN THE TEXAS COURT OF CRIMINAL APPEALS

                       CYNTHIA AMBROSE
                          Petitioner / Appellee

                                   V.

                       THE STATE OF TEXAS
                         Respondent / Appellant



ON DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS, SAN ANTONIO
                      CAUSE NO. 04-13-00788-CR

 APPEALED FROM THE 226TH JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
                      CAUSE NO. 2011-CR-10002


                    STATE’S BRIEF IN RESPONSE

                                        NICOLAS “NICO” LAHOOD
                                        Criminal District Attorney
                                        Bexar County, Texas

                                        S. Patrick Ballantyne
                                        Assistant Criminal District Attorney
                                        Bexar County, Texas
                                        State Bar # 24053759
                                        101 W. Nueva St., 7th floor
                                        San Antonio, Texas 78205
                                        210-335-2311 (phone)
ORAL ARGUMENT GRANTED                   sballantyne@bexar.org
             IDENTIFICATION OF PARTIES AND COUNSEL

Representing the State of Texas at Trial and on Appeal:

      S. Patrick Ballantyne
      Assistant Criminal District Attorney
      Bexar County, Texas
      State Bar # 24053759
      101 W. Nueva St., 7th floor
      San Antonio, Texas 78205
      210-335-2404 (phone)
      210-335-2773 (facsimile)
      sballantyne@bexar.org

Representing Petitionerr Cynthia Ambrose at the Punishment Phase of Trial and
on Appeal

      Dayna L. Jones
      State Bar # 24049450
      206 E. Locust Street
      San Antonio, Texas 78212
      210-255-825 (phone)
      210-249-0116 (facsimile)
      DaynaJ33@gmail.com

Representing Petitioner at the Guilt-Innocence Phase of Trial
     J. Scott Sullivan
     State Bar # 19483350
     4 Dominion Drive, Suite 250
     San Antonio, Texas 78257
     210-227-6000 (phone)




                                        1
                                                 TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL ............................................................................1
TABLE OF CONTENTS ....................................................................................................................2
INDEX OF AUTHORITIES ...............................................................................................................3
ON CITATIONS TO THE RECORD ..................................................................................................4
STATEMENT OF THE CASE ............................................................................................................4
STATEMENT OF THE FACTS ..........................................................................................................6
  POST-VERDICT PROCEEDINGS ................................................................................................ 13
  ON STATE’S APPEAL TO THE FOURTH COURT OF APPEALS ................................................ 15
SUMMARY OF THE ARGUMENT ................................................................................................. 16
ARGUMENT ................................................................................................................................... 18
  I. First Ground for Review – In which Petitioner asks this Court to abandon the C.C.P.
     Article 36.19 / Almanza harm standards where a trial court grants a motion for new
     trial based on jury charge error. ............................................................................................ 18
      1. Article 36.19 statutorily mandates that the egregious harm standard be applied to
         review of jury charge error claimed after judgment in the trial court and on
         appeal. ............................................................................................................................... 19
      2. In Igo v. State, this Court correctly held that the Almanza egregious harm standard
         applies to review of a trial court’s ruling on a motion for new trial claiming jury
         charge errors. .................................................................................................................... 21
  II. Second Ground for Review – In which Petitioner contends that appellate courts must
      defer to a trial court’s conclusion on the issue of egregious harm........................................... 26
      1. The issue of egregious harm is a mixed question of law and fact which the appellate
         court was correct to review de novo. .................................................................................. 27
      2. The trial court did not make findings of fact or conduct a meaningful harm analysis to
         which the court of appeals was obliged to defer. .................................................................... 31
  III. Third Ground for Review – In which Petitioner complains that the Court of Appeals
       did not properly conduct its egregious harm analysis. ........................................................... 33
      1. The court of appeals conducted a proper and thoughtful egregious harm analysis
         and reached the correct conclusion.................................................................................... 35
CONCLUSION AND PRAYER ........................................................................................................ 37
CERTIFICATE OF WORD COUNT ................................................................................................. 38
CERTIFICATE OF SERVICE .......................................................................................................... 38




                                                                       2
                                      INDEX OF AUTHORITIES

Cases
Absalon v. State, 460 S.W.3d 158 (Tex. Crim. App. 2015) .................................... 28
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ............................passim
Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. 2012) ..................... 30, 32, 34
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) ................................. 32
Ex parte Wheeler, 203 S.W.3d 317 (2006) ............................................................. 29
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) ............................... 30, 34
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) .................... 27, 28, 29, 31
Hunter v. Statew, 955 S.W.3d 102 (Tex. Crim. App. 1997) ................................... 29
Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006) .....................................passim
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ..................................... 29
Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) ......................................... 26
Oregon v. Kennedy, 456 S.W.667 (1982) ............................................................... 29
Rent v. State, 982 S.W.2d 382 (Tex. Crim. App. 1998) .......................................... 22
Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990) ........................................... 34
State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio 2015) ......... 16, 26, 35
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006)....................................... 25
State v. McKnight, 213 S.W.3d 915 (Tex. Crim. App. 2007) ..................... 20, 23, 24
Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013)............................... 19, 34

Statutes
Tex. Code Crim. P. Art. 36.19............................................................... 18, 19, 20, 26
Tex. Code Crim. P. Art. 38.14................................................................................. 13
Tex. Code Crim. P. Art. 44.01................................................................................. 25
Tex. Penal Code § 39.03 ........................................................................................... 4
Tex. R. App. P. 21.3 ................................................................................................ 21

                                                           3
                     ON CITATIONS TO THE RECORD

       Throughout this brief, reference to the Reporter’s Record will be indicated

by the citation to the volume number, then the letters “RR,” followed by the page

number. For example, (3 RR 25) refers to the 25 th page of the third volume of the

reporter’s record.

       References to the Clerk’s Record will be indicated by the page number

preceded by the letters “CR” for the initial Clerk’s Record, “CR Supp.” for the

First Supplemental Clerks Record, or “CR Supp. 2 nd” for the Second Supplemental

Clerk’s Record. For example, (CR 51) refers to the 51 st page of the initial Clerk’s

Record.

                         STATEMENT OF THE CASE

       This Court granted discretionary review of the decision of the Fourth Court

of Appeals reversing the trial court’s granting of a motion for new trial. In the

226th District Court for Bexar County, Judge Sid L. Harle presiding, a jury

convicted Petitioner of the offense of Official Oppression1, a Class A

misdemeanor.     (CR 31-32)    The trial court assessed punishment at one year

confinement, probated for a term of two years, with 30 days confinement to be

served as a condition of community supervision. (CR 31-32)




1
    Tex. Penal Code § 39.03
                                         4
      After trial, Petitioner filed her motion for new trial, which argued that a new

trial should be granted due to (1) the trial court’s failure to instruct the jury on the

accomplice witness rule of Article 38.14 of the Code of Criminal Procedure, (2)

the insufficiency of the non-accomplice corroborating evidence, (3) ineffective

assistance of trial counsel, (4) the interest of justice, and (5) the cumulative effect

of unspecified errors. (CR 69-90). After an evidentiary hearing, the trial court

granted a new trial on the basis of its own failure to sua sponte instruct the jury as

to the accomplice witness rule. All other grounds were denied. (6 RR 3)

      The State requested findings of fact and conclusions of law from the trial

court. (CR 91) Petitioner submitted proposed findings and conclusions. The State

then filed objections to Petitioner’s proposals (CR 94-99) and contemporaneously

submitted its own proposed findings and conclusions. (CR 100-102) The trial

court signed Petitioner’s findings and conclusions without amendment. (CR Supp.

2nd 6-11) The State then timely filed its notice of appeal. (CR 104)

      The Fourth Court of Appeals reversed the trial court’s grant of a new trial in

a published opinion. State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio

2014, pet. granted). On appeal, the State contended that the trial court’s grant of

new trial should be vacated, because (1) the witness in question was not an

accomplice, and, (2) alternatively, Petitioner was not egregiously harmed by the

court’s failure to instruct on the accomplice-witness rule. The court of appeals did

                                           5
not reach the merits of the State’s first issue and instead assumed without deciding

that Petitioner was entitled to an accomplice witness instruction. 457 S.W.3d at

160. The court below then conducted the required egregious harm analysis and

concluded that Petitioner was not egregiously harmed by any error resulting from

the trial court’s failure to include an accomplice witness corroboration instruction.

457 S.W.3d at 162.

      Petitioner then sought this court’s discretionary review of the court of

appeals’ decision. Discretionary review was granted with oral argument permitted.



                        STATEMENT OF THE FACTS

      The evidence presented at the trial of this case tells the story of a

kindergarten teacher, Petitioner, who disciplined a five year old “bully” by

directing other students to line up and strike the student so that he might know how

it feels to be bullied. After hearing the evidence, the jury deliberated for 42

minutes before returning a verdict of guilty on the sole count of Official

Oppression. (3 RR 167-68).

      In May of 2012, Cynthia Ambrose (Petitioner) and Barbara Ramirez (the

witness at issue on appeal) both taught kindergarten at Salinas Elementary in the

Judson Independent School District in San Antonio. (3 RR 12-13) Both teachers

had received training on the proper discipline of students in the classroom. (3 RR


                                         6
14) They were trained that Judson I.S.D. is a non-corporal punishment district

which prohibits the physical discipline of students. (3 RR 14-15) Judson I.S.D.

policy expressly prohibits teachers from striking students or allowing students to

strike one another as a means of discipline. (3 RR 15) To address students with

behavioral issues, Salinas Elementary used a “buddy system,” by which a teacher

could send an unruly student to another classroom for a period of time. (3 RR 15-

16) If further discipline was needed, the student would then be sent to the school’s

principal, Jeffrey Large, or vice-principal, Gerrie Spellmann. (3 RR 16)

      On May 2, 2012, A.N. was a five year old student in Ms. Ramirez’s

kindergarten class. (3 RR 13) A.N. had been exhibiting disruptive behavioral

problems culminating in his striking another student on the back. (3 RR 17-18)

Although Ms. Ramirez had never taken A.N. to another teacher’s classroom

before, she decided that day to use the buddy system and escort the child to

Petitioner’s classroom. (3 RR 18) Petitioner had a reputation as a strong

disciplinarian and was a more experienced teacher than Ms. Ramirez. (3 RR 23)

Once arrived, Ms. Ramirez explained to Petitioner that A.N. had been “bullying

the other student” and asked if the child could be left in Petitioner’s classroom. (3

RR 19) Petitioner instructed A.N. to sit next to her desk and then repeatedly asked

the child why he was bullying other students. (3 RR 19-20) When A.N. did not

respond, Petitioner asked, “How would you like for other students to bully you?”

                                         7
(3 RR 20) A.N. again gave no response, and Petitioner turned to the other students

in the class and said, “Come on, boys and girls, let’s line up and bully A.N..” (3

RR 20) A few of the students rose, and Petitioner said, “Come on, let’s hit him,

let’s bully – let’s bully him.” (3 RR 20) Ms. Ramirez remembered approximately

seven students striking A.N.. 2 When the first students offered only a “rub” or

“pat,” Petitioner instructed the others to “hit him harder,” and they did so. (3 RR

20-21) Finally, one girl struck A.N. hard enough that Petitioner stopped the

beating. (3 RR 21)

      In the course of this episode, Ms. Ramirez took no affirmative act to assist,

encourage, aid, or solicit the improper discipline she witnessed. Of three witnesses

who were in the classroom during the incident – Ms. Ramirez, the child A.N., and

Petitioner – none described any act by Ms. Ramirez taken to promote Petitioner’s

mistreatment. When asked what was going through her head during the incident,

Ms. Ramirez replied: “It happened so fast, I was shocked. I did not realize this was

– I can’t – I can’t explain it, I was in a state of shock.” (3 RR 21) After the

incident, Ms. Ramirez returned to her classroom and shortly after sent a female

student to retrieve A.N.. (3 RR 22) Ms. Ramirez did not immediately report the

incident. Although she knew that the law required her to report within 48 hours, (3

2
 A.N. testified that he remembered 21 students hitting him (3 RR 59),
while Appellee insisted that only one rogue girl struck the child. (3 RR
118)
                                         8
RR 26) Ms. Ramirez waited a full two weeks to inform school administrators of

the abuse. (3 RR 22-23). Given that Ms. Ramirez’s testimony would constitute a

judicial admission to the criminal offense of failing to timely report child abuse 3,

the State extended her immunity from prosecution in exchange for her truthful

testimony. (3 RR 26) (4 RR 24)

      Ms. Ramirez was finally prompted to report the incident when, at a Friday

staff meeting, it was suggested that a child with behavioral issues be placed in

Petitioner’s class “because Ms. Ambrose was more of a stern teacher.” (3 RR 23).

The next Monday, Ms. Ramirez overheard Petitioner instructing a student who was

pinched by another student to “pinch him back.” (3 RR 24) Ms. Ramirez then felt

compelled to report the mistreatment of A.N. to the school’s administration. (3 RR

25)

      When Ms. Ramirez reported the incident, an administrative investigation

was initiated. (3 RR 91, 107) This investigation was conducted by Principal Jeffrey

Large and Vice-principal Gerrie Spellmann. After hearing Ms. Ramirez’s account

of the classroom abuse, Mr. Large was “very surprised” as he had “never heard of

anything like this before in my 30 years of education.” (3 RR 102) Petitioner was

called to the administrative offices and asked about the events Ms. Ramirez had

3
  Texas Family Code § 261.109 provides that a professional’s failure to
report child abuse within 48 hours is a Class A misdemeanor or State
Jail Felony, depending on the circumstances.
                                         9
reported. Ms. Spellmann testified that Petitioner then freely admitted to instructing

other students to hit A.N.:


      “She let us know that she had instructed her students to hit the
      students on the arm, but not too hard so that the student would know
      how it felt to be bullied.” (3 RR 92) “She stated that – we asked how
      many students had been struck [sic] and she stated only about two or
      three. But the next student hit too hard and that she had it stopped.” (3
      RR 93)

Mr. Large also testified that Petitioner initially admitted to the mistreatment:

      “Well, of course, I asked her, you know, what had happened in the
      classroom, what had been reported to me and I remember her saying
      something that she had instructed some students to – to – or basically
      she told me that Ms. Ramirez had brought a student over to her class
      because she said the student – Ms. Ramirez had said the student was
      bullying. And she took the student into her classroom and she said
      something like making the student feel like what it was like to be
      bullied himself. And told us that she instructed the students to hit the
      other student but not hard. She said that I believe two or three students
      hit the student and then a fourth student hit too hard and she stopped it
      immediately after that.” (3 RR 108)

      Ms. Spellmann interviewed the children who were in the classroom that day,

and – although the statements of the children did not come into evidence – she

testified that these interviews confirmed Ms. Ramirez’s account and Petitioner’s

admissions. (3 RR 94)

      After Ms. Ramirez         finally reported the       mistreatment    to school

administrators, word of the incident began making its way around the school. (3

RR 66) Christine Wienstel – another teacher at Salinas Elementary – and Sharon

                                          10
Hons – the school’s librarian – both witnessed Petitioner venting her displeasure in

the teachers’ lounge.

      Ms. Wienstel testified that Petitioner “was pissed, someone had told on her

about something and that the bitch was going to come out, something to that

nature.” (3 RR 67-68) Petitioner also stated “that the Mexican was going to come

out and that payback was a bitch.” (3 RR 69)

      Ms. Hons recalled encountering Petitioner in the teachers’ lounge: “Ms.

Ambrose walked in, I just asked her how she was doing and she said she was -- she

was pissed, she was upset. And I asked her why and she just said someone had

tattledtaled on her.” (3 RR 74) Ms. Hons also recalled Petitioner saying, “payback

was a bitch and that it was going to bring out the Mexican in her.” (3 RR 75)

      In addition to the testimony of the educators, the State also presented the

testimony of A.N., the child-victim of Petitioner’s mistreatment, and A.N.’s

brothers, W.N. and B.N. Of the three brothers, only A.N. was in the classroom at

the time of the mistreatment. W.N. and B.N. both heard A.N. describe the incident

on the school bus later that same day.

      A.N. was seven years old by the time of his testimony at trial. (3 RR 56) The

child had difficulty remembering the events of the day in question, but he did

remember being in trouble with Ms. Ramirez and being hit on the back by a




                                         11
number of other children. (3 RR 58-59) He also remembered the hitting stopped

after a girl student hit him hard. (3 RR 60)

      W.N., A.N.’s older brother, was 12 years old at the time of his testimony. (3

RR 79) He testified that they rode the school bus home together and that he had a

conversation with A.N. on the bus in which A.N. told him that other students hit

him. (3 RR 81) B.N., 9 years old at the time of trial, told the jury that he also

remembered A.N. telling him that day that a teacher told students to hit his back

and that the students did. (3 RR 84)

      The only witness called by the defense was Petitioner, Cynthia Ambrose. (3

RR 114) Petitioner testified that Ms. Ramirez brought A.N. to Petitioner’s

classroom because the child was misbehaving. (3 RR 117) Petitioner denied

directing any students to strike A.N.; she recounted the events as follows:

      I turned around and told my class what [A.N.] had done and what kind
      of consequences that he should get. And some were saying time out,
      one of them did say he should get hit by the kids that he hit. So then I
      say, Does anybody want to show him what it feels like? And I was
      expecting the kids to all say yes and I would turn around and tell him,
      You see, would you like for us to hit you? But before I knew it one of
      my girls got up and hit him. And the only reason I knew is because I
      heard it, because I didn’t see it. And when I turned around being, you
      know, when one gets up others will get up. There was a few that were
      up around her, the one that had hit [A.N.], but I was like, Get away
      from him. And I don’t know, I mean, that’s when it stopped. And it
      really did happen fast like Ms. Ramirez said. (3 RR 117-18)

      At the close of evidence, the parties conferred with the trial court on the jury

charge. (3 RR 138-40) Neither party made a request that the court instruct the jury
                                          12
on the requirement of accomplice witness corroboration pursuant to Code of

Criminal Procedure article 38.14, and no such instruction was included in the

court’s charge. After deliberating for 42 minutes, the jury returned a verdict of

guilty.


                         POST-VERDICT PROCEEDINGS

          After the jury returned a verdict of guilty, the trial court ordered a pre-

sentence investigation. Defendant then hired new counsel for the punishment phase

of trial. On August 20, 2013, the trial court described Appellee’s conduct as

“absolutely the parents’ worst nightmare” (4 RR 23) and sentenced Appellee to

one year confinement in the Bexar County Jail, probated for a term of two years,

Appellee filed her notice of appeal and motion for new trial. By her motion,

Appellee claimed a new trial was warranted due to (1) the trial court’s failure to

instruct the jury on the accomplice witness rule of Article 38.14 of the Code of

Criminal Procedure, (2) the insufficiency of the non-accomplice corroborating

evidence, (3) ineffective assistance of trial counsel, (4) the interest of justice, and

(5) the cumulative effect of unspecified errors. (CR 69-90).

          A hearing on the motion for new trial was held on October 10, 2013. Among

the witnesses called by Appellee was her trial counsel, Scott Sullivan. (5 RR 37)

Through his testimony, Mr. Sullivan demonstrated an understanding of the

accomplice witness rule commensurate with his 20 years as a criminal practitioner.

                                           13
(5 RR 62-63) Mr. Sullivan did not believe that any of the testimony – by either

Appellee or Barbara Ramirez – indicated that Ms. Ramirez took any affirmative act

to promote the offense of Official Oppression. (5 RR 64) Mr. Sullivan also agreed

that failing to timely report the abuse of a child was not a lesser included offense of

Official Oppression. (5 RR 64-65) Mr. Sullivan testified that he considered

requesting an accomplice witness instruction but decided against it. (5 RR 65) He

reasoned that he would not be able to convince the court that Ramirez was an

accomplice of law or fact, and in this case “The corroborating evidence is excellent

for the State.” (5 RR 65)

      Moreover, Mr. Sullivan testified that the inclusion of an accomplice witness

instruction would be contrary to the defense’s theory that no offense ever occurred.

(5 RR 66) Labeling Ms. Ramirez an accomplice would be tantamount to admitting

that some offense did occur. (5 RR 66) As the following exchange reveals:


[Prosecutor]        Would asking for that accomplice witness instruction, in your
                    professional opinion, almost telegraph to the jury that this
                    offense did happen?

[Mr. Sullivan]      Yes.

[Prosecutor]        To have an accomplice you have to have an offense; right?

[Mr. Sullivan]      It is similar to an admission that it happened. And it was a
                    dichotomy we faced the whole trial and that is having to say it
                    happened because we damned Ms. Ramirez so much. So we
                    almost would have to do that in some ways, but I didn't want to
                    finally finish it off with another full jury charge again
                                          14
                     reminding the jury that, yeah, she's -- they're partners in crime. I
                     don't want them to -- to be partners in crime you've got to have
                     a crime.

[Prosecutor]         So would asking for an accomplice witness instruction in your
                     professional assessment be consistent or inconsistent with your
                     defense theory and strategy in this case?

[Mr. Sullivan]       It would be inconsistent with all of our defenses.

(5 RR 65-66)

       At the conclusion of the evidentiary hearing, the trial court granted Appellee

a new trial on the basis of its failure to instruct the jury as to the accomplice

witness rule. All other grounds were denied. (7 RR 3)

       Following the trial court’s ruling, the State requested findings of facts and

conclusions of law from the trial court. (CR 91) Appellee submitted proposed

findings and conclusions, and these were presented to the trial court and signed by

the judge without substantive amendment. (CR 2 nd Supp. 6)             Unaware of the

presentment and entry of these findings and conclusions, State filed objections to

Appellee’s proposals (CR 94-99) and contemporaneously submitted its own

proposed findings and conclusions. (CR 100-102) The State when took appeal of

the trial court’s grant of a new trial.


      ON STATE’S APPEAL TO THE FOURTH COURT OF APPEALS

       On appeal in the Fourth Court of Appeals, the State claimed that the trial

court erred in granting the motion for new trial for two reasons. First, the State

                                           15
contended that no accomplice-witness instruction was required because the witness

in question was not an accomplice either as a matter of law or as a question of fact.

Second, the State contended in the alternative that, even if the witness in question

were an accomplice, Petitioner was not egregiously harmed by the absence of an

accomplice witness instruction.

      The court of appeals declined to address the State’s first issue and instead

examined whether Petitioner suffered the egregious harm required to reverse a

judgment on the basis of unpreserved jury charge error. The court of appeals

conducted its analysis by correctly explicating the egregious harm standard of

Almanza and Article 36.19 of the Code of Criminal Procedure both generally and

in the context of accomplice witness instructions. The court then conducted a

thorough examination of the evidence presented by the both the State and defense,

the opening statements and arguments, and the jury charge as given. Concluding

that Petitioner was not egregiously harmed by the absence of an accomplice-

witness instruction, the court of appeals reversed the trial court’s grant of a new

trial in a published opinion with one justice writing separately in concurrence.

State v. Ambrose, 457 S.W.3d 154 (Tex. App. – San Antonio 2015, pet. granted). 4

                      SUMMARY OF THE ARGUMENT



4
  The opinion of the court of appeals is examined in greater detail under
the State’s response to Petitioner’s third ground for review infra.
                                         16
I.      First Ground for Review – In which Petitioner asks this Court to
        abandon the C.C.P. Article 36.19 / Almanza harm standards where a
        trial court grants a motion for new trial based on jury charge error.

        Petitioner contends that “a reviewing court should defer to the lower court’s

factual findings and review only for an abuse of discretion.” (Petitioner’s Brief at

15) This ground is without merit, because (1) it is contrary to the standard of

review statutorily mandated by Article 36.19, as interpreted by this Court in

Almanza v. State5, and (2) the issue was decided by the clear correct precedent of

this Court in Igo v. State6.


II.     Second Ground for Review – In which Petitioner contends that
        appellate courts must defer to a trial court’s conclusion on the issue of
        egregious harm.

        In her second ground for review, Petitioner complains that the appellate

court below erred by conducting an egregious harm analysis that did not defer to

the trial court’s findings of fact and conclusions of law. This ground is without

merit, because (1) appellate courts are never bound by a trial court’s conclusion on

a mixed question of law and fact that does not turn on credibility such as egregious

harm; and (2) the trial court did not make findings of fact or conduct a meaningful

harm analysis to which the court of appeals was obliged to defer.




5
     686 S.W.2d 157 (Tex. Crim. App. 1984).
6
     210 S.W.3d 645 (Tex. Crim. App. 2006).
                                          17
III. Third Ground for Review – In which Petitioner complains that the Court
     of Appeals did not properly conduct its egregious harm analysis.

        In her third ground for review, Petitioner complains that the appellate court

below did not properly conduct its egregious harm analysis.          This ground is

without merit, because the court of appeals applied the correct standard of review,

conducted a proper egregious harm analysis, and arrived at the correct conclusion

that Petitioner did not demonstrate egregious harm.



                                   ARGUMENT

I.      First Ground for Review – In which Petitioner asks this Court to
        abandon the C.C.P. Article 36.19 / Almanza harm standards where a
        trial court grants a motion for new trial based on jury charge error.

        In her first ground for review, Petitioner asks this court to abandon the

Almanza harm standards where a trial court has granted a motion for new trial

based on jury charge error and made findings of fact and conclusions of law to the

effect that a defendant was egregiously harmed by the error. Petitioner contends

that “a reviewing court should defer to the lower court’s factual findings and

review only for an abuse of discretion.” (Petitioner’s Brief at 15) This ground is

without merit, because (1) it is contrary to the standard of review statutorily

mandated by Article 36.19, as interpreted by this Court in Almanza v. State 7, and



7
     686 S.W.2d 157 (Tex. Crim. App. 1984).
                                          18
(2) the issue was decided by the clear correct precedent of this Court in Igo v.

State8.

Applicable Law

     1.      Article 36.19 statutorily mandates that the egregious harm standard
             be applied to review of jury charge error claimed after judgment in
             the trial court and on appeal.

          In considering the Almanza harm standards, it is important to remember that

Almanza is a case of statutory interpretation. The egregious harm standard is not

simply a judicially-crafted rule of economy; it is mandated by Article 36.19 of the

Code of Criminal Procedure which governs courts’ review of jury charge error.

“The framework in Almanza is not a court-made rule.” Zamora v. State, 411

S.W.3d 504, 512 (Tex. Crim. App. 2013).

          In authoring this court’s opinion in Almanza, Judge Clinton provided a very

thorough and well-researched history of this court’s adventures in jury charge

review which culminated in the legislature’s enactment of Article 36.19. “After

researching Texas statutory and decisional law from 1857 forward, we have

concluded that Article 36.19 actually separately contains the standards for both

fundamental error and ordinary reversible error.” 686 S.W.2d at 171. Where error

is preserved by timely objection, the defendant need only demonstrate some harm.

Id. “On the other hand, if no proper objection was made at trial and the accused


8
    210 S.W.3d 645 (Tex. Crim. App. 2006).
                                           19
must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial

trial’ – in short ‘egregious harm.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985).

      Although the Almanza Court in interpreting Article 36.19 described the

statute’s particular harm standards as ambiguous and requiring resort to extra-

textual sources for interpretation, there is no ambiguity in the text as to when

Article 36.19 will apply. By its plain terms – in referring to situations involving

charge error where a “judgment shall not be reversed unless…” – Article 36.19

applies when a court is being asked to reverse the judgment in a criminal case.

Accordingly, the Almanza harm standards are mandated by Article 36.19 when a

defendant is asking a trial court to reverse the judgment of a jury 9 by a motion for

new trial and where either party seeks appellate review the trial court’s ruling. See

Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006) and State v. McKnight, 213

S.W.3d 915 (Tex. Crim. App. 2007), discussed infra.




9
  Although the article is entitled, “Review of Charge on Appeal,” it is the
plain meaning of the text of a statute that governs interpretation, and the
statute’s title is an extratextual consideration that will only be considered
as a factor to resolve ambiguity. See Chase v. State, 448 S.W.3d 6, 11
(Tex. Crim. App. 2014); Tex. Gov’t Code § 311.023. .

                                         20
   2.      In Igo v. State, this Court correctly held that the Almanza egregious
           harm standard applies to review of a trial court’s ruling on a motion
           for new trial claiming jury charge errors.

        In Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006), this Court

confronted the following issue and arrived at the stated conclusion:

        When a defendant complains on appeal that the trial court erroneously
        denied a motion for new trial that alleged a claim of jury charge error,
        is he entitled to have the underlying jury-charge error reviewed under
        a different harm standard than would have applied to that error absent
        a motion for new trial? We answer that question “no.”

        210 S.W.3d at 646.

        Petitioner’s first issue in the instant case may be stated identically with only

a couple of modifications:

        When the State complains on appeal that the trial court erroneously
        granted a motion for new trial, is the defendant entitled to have the
        underlying jury-charge error reviewed under a different harm standard
        than would have applied to that error absent a motion for new trial?

        This issue should also be answered in the negative on the basis of the

reasoning set forth in the Igo decision. Presiding Judge Keller’s majority opinion

decisively held that the proper standard of review for jury charge error first raised

in a motion for new trial “is Article 36.19, as construed in Almanza.” 210 S.W.3d

at 647. Although Igo (like Petitioner here) contended that review was limited to an

abuse of discretion standard pursuant to Rule of Appellate Procedure 21.3, this

Court soundly rejected that argument. “A statute cannot be superseded by a rule,”

and “when a statute directs what treatment an appellate court must give to a
                                           21
particular type of error, a rule of appellate procedure cannot be employed to

circumvent the statutory requirement.” Id., citing Rent v. State, 982 S.W.2d 382

(Tex. Crim. App. 1998).

       The Igo opinion also recognized that the egregious harm standard – besides

being mandated by Article 36.19 – advances the “policy of encouraging the timely

correction of errors” embodied by statutes and rules governing review of jury

charge error. 210 S.W.3d at 647. In an appeal from a trial court’s ruling on a

motion for new trial, this policy is not merely a rule of economy but necessary to a

properly functioning system of appellate review:

       If appellant were correct, defendants would no longer be required to
       preserve a jury-charge error at trial so long as the issue was raised in a
       motion for new trial because any error in the charge could be said to
       “misdirect” the jury. […] Appellant’s reasoning would essentially
       exempt any jury-charge error from any sort of harmless-error analysis
       even when the erroneous instruction might have been fixed had the
       defendant brought the error to the trial court's attention. Such a result
       would essentially eviscerate the two- tiered harm analysis required by
       statute and do away with the requirement that egregious harm be
       shown when the defendant has failed to timely urge an objection.

       Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (emphasis

in original).

       Following the Igo decision, this Court was presented with a circumstance

such as the instant case, where the State appealed the trial court’s grant of a new

trial based on jury charge error. McKnight v. State, 213 S.W.3d 915 (Tex. Crim.



                                          22
App. 2007) (per curiam), 10 This Court remanded the case to the court of appeals,

because that court did not have the benefit of the Igo opinion, where the Court

“held that the Almanza harm analysis does apply to jury-charge errors presented in

a motion for new trial.” McKnight, 213 S.W.3d at 916. The McKnight opinion

informs the Court’s decision in the instant appeal both as a concise reification of

the holding in Igo and an application of the Almanza standards where a trial court

grants a defendant’s motion for new trial.

Application of Law

      After assuming but not deciding that the trial court erred in failing to sua

sponte instruct the jury on the accomplice witness rule, the appellate court below

was required by Article 36.19, as construed in Almanza, to conduct an egregious

harm analysis.     Like the appellant in Igo, Petitioner is attempting to use the

motion-for-new-trial procedure to circumvent the harm analysis mandated by

Article 36.19.     She makes no claim that Article 36.19 is unconstitutional or

superseded by some other authority. Neither does she propose any standard of

review to replace Almanza other than the abuse of discretion standard already

rejected in Igo.

      Petitioner distinguishes Igo from the present case by pointing out that the

defendant in that Igo was denied his motion for new trial whereas Petitioner was
10
   Petitioner describes McKnight as a case where the trial court denied
the motion for new trial. (Petitioner’s Brief at 11) That is incorrect.
                                        23
granted hers. Exactly why she believes this materially distinguishes the standards

of review or deference to be applied is unclear, but Petitioner essentially argues

that it’s different when it’s the defendant who wins below.            This argument

disregards both the reasoning in Igo and its straightforward application in

McKnight to a circumstance identical to her own – where the State appealed the

trial court’s grant of a new trial on unpreserved jury charge instruction error.

       Petitioner contends that the trial court’s entry of findings of fact and

conclusions of law necessitate the complete deference of appellate courts to the

trial court’s ultimate conclusion on egregious harm. However – as fully briefed

under the State’s response to Petitioner’s second ground for review infra – the trial

court in this case did not make any findings of fact related to credibility or

demeanor to which the appellate court was obliged to defer. If a trial court’s

egregious harm analysis could ever obviate any aspect of a review by a higher

court, this is not that case.

       Although abandoning the Almanza egregious harm standard would certainly

benefit this Petitioner in this appeal, this Court’s decision must be more globally

considerate of the consequences of such a radical policy shift. It can be safely

assumed that most claims of jury charge error brought by way of a motion for new

trial are overruled by the trial court. Where those claims were not raised before the

jury was charged, the trial court’s denial of the motion for new trial carries a

                                          24
conclusion – either explicit or implicit – that the defendant did not suffer egregious

harm.    If Petitioner gets her way from this court, such defendants would be

essentially forestopped in raising their claims of charge error on appeal, for – even

if error can be demonstrated – the appellate court would be bound to defer to the

trial court’s determination that egregious harm occurred. Such a scheme would

place defendants in the awkward and precarious position of either (1) raising the

issue in a motion for new trial and risking foreclosure of meaningful appellate

review, or (2) saving the issue for their direct appeal and forgoing the opportunity

to develop a record in support of their claims at the hearing on their motion for

new trial.

        In a circumstance such as this one – where the State appeals the trial court’s

grant of a new trial based on unpreserved jury charge instruction – the State is

entitled by Article 44.01 of the Code of Criminal Procedure to meaningful

appellate reviewed of claimed errors. See State v. Cullen, 195 S.W.3d 696, 698

(Tex. Crim. App. 2006) (Trial court may not frustrate “meaningful review of the

decision to grant a motion to suppress.”) Yet, resorting to an abuse of discretion or

highly deferential standard of review, as Petitioner prays of this Court, would

deprive the State of the statutorily mandated entitlement of meaningful review of

when a trial court grants a new trial.




                                          25
      Justice Barnard’s concurring opinion below in this case expressed concern

“about the effect of the standard on the trial court’s authority to grant a new trial in

a case such as this.” 457 S.W.3d 154, 162 (Barnard, J., concurring). Thid concern

recognizes what this Court has already acknowledged: that egregious harm “is a

difficult standard to meet.”   11
                                    Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013). However, the limitation that this standard places on a trial court’s

authority is not a judicially-crafted rule which may be set aside in equity; it is a

statutory mandate that must be applied correctly by all courts – including trial

courts – when reviewing whether unpreserved jury charge error warrants reversal

of a jury’s judgment.

      The Almanza harm standards are required by Article 36.19 – both at the trial

court level and on and appellate review – and they may only be modified or

obviated by an enactment of the legislature. Accordingly, Petitioner’s first ground

for review is without merit and should be overruled.


II. Second Ground for Review – In which Petitioner contends that appellate
    courts must defer to a trial court’s conclusion on the issue of egregious
    harm.




11
  The fact that egregious harm is difficult standard (and thus more
easily decided) is presumably why the appellate court below chose it as
the dispositive issue instead of deciding the substantive issue of whether
an accomplice witness instruction was even required.
                                           26
        In her second ground for review, Petitioner complains that the appellate

court below erred by conducting an egregious harm analysis that did not defer to

the trial court’s findings of fact and conclusions of law. This ground is without

merit, because (1) appellate courts are never bound by a trial court’s conclusion on

a mixed question of law and fact that does not turn on credibility such as egregious

harm; and (2) the trial court did not make findings of fact or conduct a meaningful

harm analysis to which the court of appeals was obliged to defer.

     1. The issue of egregious harm is a mixed question of law and fact which
        the appellate court was correct to review de novo.

        Texas courts do not seem to have addressed the level of deference owed to a

trial court’s ruling on the issue of whether a defendant suffered egregious harm as

result of jury charge error. This is understandable as trial courts are not often

called upon to engage in harm analyses. However, applying principals explained

by this Court in Guzman v. State12 and subsequent cases, it is clear that egregious

harm involves an application of facts to the law, also called a “mixed question of

law and fact.” Because the egregious harm analysis in this case does not turn on a

question of credibility or demeanor, the court of appeals was correct to review it de

novo.




12
     955 S.W.2d 85 (Tex. Crim. App. 1997)
                                         27
        Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), identified three

types of questions which a reviewing court may be called upon to answer which

are not “pure” questions of law:

        First, there are questions which entail the trial court’s determination of

historical facts or which are based on an evaluation of credibility and demeanor.

Appellate courts should afford almost total deference to a trial court’s findings on

such issues. Guzman, at 89.

        Second, there are applications of law to fact, also known as “mixed

questions of law and fact,” “where the resolution turns on an evaluation of

credibility or demeanor.” In reviewing such credibility-based mixed questions,

appellate courts afford similarly great deference to a trial court’s rulings where it

assessments are supported by the record. Id.

        Third, a there are mixed questions of law and fact where the ultimate

question does not turn on a matter of credibility or demeanor. These questions

appellate courts review de novo. Id. “Mixed questions of law and fact that do not

turn on the credibility of the witness, as well as all purely legal questions will be

reviewed de novo.” Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App.

2015)

        Of course the Guzman Court’s promulgation of these three classes of review

is more descriptive than categorical; “This is about as comprehensive a statement

                                         28
of the applicable standards as we can provide.” Guzman at 89. For example, a

question may involve a credibility assessment but not “turn on” that assessment.

In further clarification, this Court has also said that a “question ‘turns’ on an

evaluation of the credibility of the witnesses when the testimony of one or more

witnesses, if believed, is always enough to add up to what is needed to decide the

substantive issue.” Loserth v. State, 963 S.W.2d 770, 774 (Tex. Crim. App. 1998)

(emphasis in original); citing Hunter v. Statew, 955 S.W.3d 102, 105 n.4 (Tex.

Crim. App. 1997). “But the fact that credibility and demeanor are factors, even

important factors, in the trial court’s assessment does not necessarily mean the

mixed question falls within the second category identified in Guzman.” Loserth v.

State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).

      Petitioner relies on this Court’s decision in Ex parte Wheeler, 203 S.W.3d

317 (2006), and the Supreme Court’s decision in Oregon v. Kennedy, 456 S.W.667

(1982), for the proposition that the court of appeals and this Court should defer to

the conclusion of egregious harm reached by the trial court.        However, both

Wheeler and Kennedy presented issues that turned on a trial court’s determination

that a prosecutor did not act in bad faith when causing a mistrial. The analyses in

both cases came down to the trial judge being in a better position to gauge the

credibility of the prosecutor’s assertion that his intent in asking an improper

question was not to goad the defense into requesting a mistrial.         In such a

                                        29
circumstance, deference to the trial court’s credibility determination is absolutely

justified.

       The egregious harm analysis is a different animal entirely.       Like other

standards of harm, it is naturally an appellate standard of review. In situation like

this one – where a trial court is called upon to consider whether a defendant was

egregiously harmed by jury charge error – the analysis sits in a limited remove

from its natural appellate environment. Although credibility and demeanor may be

factors informing the analysis, it will be a rare situation where the question turns

on such findings.

       In conducting an egregious harm analysis, “courts evaluate harm by taking

into account (1) the entire jury charge; (2) the state of the evidence, including

contested issues; (3) arguments of counsel; and (4) any other relevant information

contained in the record as a whole.” Gelinas v. State, 398 S.W.3d 703, 705-06

(Tex. Crim. App. 2013). In the context of accomplice-witness instruction error,

“the reviewing court must take the entire record into account to assess whether the

jury, had it been properly instructed on the law requiring corroboration of

accomplice-witness testimony, would have found the corroborating evidence so

unconvincing in fact as to render the State’s overall case for conviction clearly and

significantly less persuasive.” Casanova v. State, 383 S.W.3d 530, 534 (Tex. Crim.

App. 2012).

                                         30
       While this analysis may involve assessments of the relative strength

corroborating evidence insomuch as it tends to connect the defendant to the

offense, it does not turn on an assessment of credibility or demeanor. Thus, the

trial court will not generally be so better positioned that the appellate court must

afford it the total deference urged by Petitioner. Accordingly, egregious harm falls

within the third category of Guzman questions, and the court of appeals was

correct to review the question de novo.


   2. The trial court did not make findings of fact or conduct a meaningful
      harm analysis to which the court of appeals was obliged to defer.

      In this case, the findings of fact and conclusions of law drafted by Petitioner

and adopted by the trial court did not contain any egregious harm analysis or any

facts which would inform an egregious harm analysis. (CR Supp. 2 nd 6-11) The

adopted findings and conclusions recite some law applicable to the egregious harm

analysis and summarily conclude that Petitioner was caused egregious harm by the

failure of the court to instruct the jury on the accomplice witness rule. (CR Supp.

2nd 10) And, that is it. There are no findings of fact informing the egregious harm

analysis, and there are no credibility determinations whatsoever.

      In the absent of explicit findings, Petitioner contends that the trial court

made “implicit” findings to which the court of appeals was obliged to defer.

However, she does not identify these implicit findings except to imply herself that


                                          31
the trial court must have found the testimony of all of the State’s corroborating

witnesses “so unconvincing in fact as to render the State’s overall case for

conviction clearly and significantly less persuasive.” 13 (Petitioner’s Brief at 15).

This assertion is contrary to a fair reading of the record on the whole and the swift

verdict rendered by the jury. Moreover, appellate courts are under no obligation to

defer to a trial court’s implicit findings where they cannot be discerned from the

record:

        Although reviewing courts should also grant deference to ‘implicit
        factual findings’ that support the trial court’s ultimate ruling, they
        cannot do so if they are unable to determine from the record what the
        trial court’s implied factual findings are.

Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)

        To obtain deference from the appellate courts in an analysis as involved as

egregious harm, a trial court must actually conduct such an analysis and enter

findings of fact relevant to its conclusions. Merely stating that a defendant was

egregiously harmed is a bare conclusion of law that can not serve to frustrate the

reviewing function of the courts of appeals. The reality of this case is that the trial

court did not actually engage in a meaningful egregious harm analysis. The court

of appeals did and its holding should be affirmed.          Accordingly, Petitioner’s

second ground for review is without merit and should be overruled.



13
     Casanova v. State, 383 S.W.3d 530, 534 (Tex. Crim. App. 2012).
                                          32
III. Third Ground for Review – In which Petitioner complains that the Court
     of Appeals did not properly conduct its egregious harm analysis.

    In her third ground for review, Petitioner complains that the appellate court

below did not properly conduct its egregious harm analysis.          This ground is

without merit, because the court of appeals applied the correct standard of review,

conducted a proper egregious harm analysis, and arrived at the correct conclusion

that Petitioner did not demonstrate egregious harm.

Applicable Law

         As discusses supra, where a defendant fails to preserve jury charge error on

an issue which the trial court is required by law to instruct the jury on, reviewing

courts are to apply the egregious harm standard announced in Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1984).           The tenets of the egregious harm

standard has become very familiar to appellate jurists and advocates in the last 30

years.

         Under the Almanza standard, a defendant muse demonstrate that she suffered

actual, rather than merely theoretical, harm from jury charge error. Dickey v. State,

22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Errors that result in egregious harm

are those that affect “the very basis of the case,” “deprive the defendant of a

valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175 S.W.3d

738, 749 (Tex. Crim. App. 2005).



                                          33
      With regard to accomplice-witness instructions, this Court “has definitively

held that the procedural framework of Almanza applies to accomplice-witness

instructions, both as a matter of law and fact[.]” Zamora v. State, 411 S.W.3d 504,

512 (Tex. Crim. App. 2013). “Under Almanza, courts evaluate harm by taking into

account (1) the entire jury charge; (2) the state of the evidence, including contested

issues; (3) arguments of counsel; and (4) any other relevant information contained

in the record as a whole.” Gelinas v. State, 398 S.W.3d 703, 705-06 (Tex. Crim.

App. 2013). “[T]he reviewing court must take the entire record into account to

assess whether the jury, had it been properly instructed on the law requiring

corroboration   of   accomplice-witness     testimony,   would    have    found   the

corroborating evidence so unconvincing in fact as to render the State’s overall case

for conviction clearly and significantly less persuasive.” Casanova v. State, 383

S.W.3d 530, 534 (Tex. Crim. App. 2012).        This should not be confused with the

analysis for legal sufficiency of the evidence supporting a conviction. This Court

has “long held that corroborative evidence need not be legally sufficient in itself to

establish a defendant’s guilt.” Casanova, at 538. However, the failure to give an

accomplice witness instruction will not cause egregious harm if other evidence

standing alone would be sufficient to sustain a conviction. Solis v. State, 792

S.W.2d 95, 98 (Tex. Crim. App. 1990).

Application of Law

                                          34
   1. The court of appeals conducted a proper and thoughtful egregious harm
      analysis and reached the correct conclusion.

      In rendering its opinion that Petitioner was not egregiously harmed by the

absence of an accomplice-witness instruction, the court of appeals conducted a

considerate analysis, adhering to the correct applicable standards of law. State v.

Ambrose, 457 S.W.3d 154, 160-162 (Tex. App. – San Antonio 2015, pet. granted).

      The court of appeals below began its analysis by narrowing the issue to the

one disputed element of the offense: whether Petitioner intended that the other

children strike A.N. “We therefore focus our analysis on the evidence ‘tending to

connect’ [Petitioner’s] intent to the intent alleged in the charge – that [Petitioner]

intended that other students strike A.N. 457 S.W.3d at 160-161.

      The court below then proceeded with an examination of the state of the

evidence and noted foremost that “The non-accomplice evidence in the record is

relatively strong.” Id. at 161. The court observed that Petitioner initially admitted

to directing the students to strike A.N. when questioned by her principal and vice-

principal. Later, at trial, Petitioner denied directing the hits but testified that she

asked the students whether the class should show A.N. what it feels like to be

bullied. The court correctly noted that both of these admissions tended to connect

Petitioner to the identified requisite intent. Id.

          The court below next observed that the “jury charge and the State’s

arguments emphasized the strength of the corroborating evidence and the weakness
                                           35
of [Petitioner’s] contradictory testimony.      Id.    The State focused on the

corroborating nature of the witness testimony presented in its case while the

defense argued that Ms. Ramirez was a “psychopathic liar.” The jury’s swift

rendering of a guilty verdict indicates that they found the theory of corroboration

advanced by the State to be persuasive. Thus, the court below concluded that the

jury would not have found the State’s case “clearly and significantly less

persuasive had the jury been instructed on the accomplice-witness rule.” Id. at

161-162.

      Although Petitioner complains of the contradictory testimony presented by

A.N. – a six year old child testifying about events that occurred over a year earlier

– that the court of appeals deliberately avoided reliance on A.N.’s testimony in

evaluating the relative strength of the corroborating evidence. Even setting aside

the testimony of Ms. Ramirez (the alleged accomplice witness) and A.N. the

corroborating evidence tending to connect Petitioner with the offense was

“relatively strong” and more than tended to connect Petitioner to the alleged

offense.

      The detailed and considered egregious harm analysis conducted by the court

of appeals stands in stark contrast to the lack of analysis on the part of the trial

court. The court of appeals applied the proper standards of law in a considerate

manner and reached the correct conclusion that Petitioner was not egregiously

                                         36
harmed by the absence of an accomplice-instruction. Accordingly, Petitioner’s

third ground for review is without merit and should be overruled.



                         CONCLUSION AND PRAYER

      BY THE FORGOING REASONS AND AUTHORITIES, the State of Texas

prays this Honorable Court affirm the decision of the Fourth Court of Appeals.

Should this court find merit in Petitioner’s issues, the State prays that this case be

remanded to the Fourth Court of Appeals so that that court may consider the

undecided issue of whether the witness in question was actually an accomplice to

Petitioner’s criminal conduct.

                                              NICOLAS “NICO” LAHOOD
                                              Criminal District Attorney
                                              Bexar County, Texas



                                              ______________________________
                                              S. Patrick Ballantyne
                                              Assistant Criminal District Attorney
                                              Bexar County, Texas
                                              State Bar # 24053759
                                              101 W. Nueva St., 7th floor
                                              San Antonio, Texas 78205
                                              210-335-2277 (phone)
                                              sballantyne@bexar.org




                                         37
                     CERTIFICATE OF WORD COUNT

      The undersigned counsel certifies pursuant to Texas Rule of Appellate
Procedure 9.4(i)(2)(B), that the State’s Brief in Response filed this day contains
9,126 words. Counsel relies for his certification on the word count of the computer
program used to prepare this document: Microsoft Word 2013.



                                                    ______________________
                                                    S. Patrick Ballantyne




                         CERTIFICATE OF SERVICE

      I, S. Patrick Ballantyne, hereby certify that a true and correct copy of this
Brief was transmitted this 24th day of August, 2015, to Dayna L. Jones
(daynaj33@gmail.com), attorney of record for Petitioner, by email and electronic
service through a court-approved eFiling service.



                                                    ______________________
                                                    S. Patrick Ballantyne




                                        38
