                                                                 ACCEPTED
                                                             12-15-00068-CR
                                                TWELFTH COURT OF APPEALS
                                                              TYLER, TEXAS
                                                        9/17/2015 4:14:55 PM
                                                                   Pam Estes
                                                                      CLERK

              Nos. 12-15-00068-CR &
               12-15-00069-CR
                                           FILED IN
                                    12th COURT OF APPEALS
    IN THE COURT OF APPEALS FOR THE TYLER, TEXAS
12TH JUDICIAL DISTRICT OF TEXAS AT TYLER
                                    9/17/2015 4:14:55 PM
                                           PAM ESTES
                                             Clerk

          ANDREW PJ WHITAKER,
                 APPELLANT

                      v.

           THE STATE OF TEXAS,
                 APPELLEE




             APPELLEE'S BRIEF



 FROM THE 420TH JUDICIAL DISTRICT COURT
     NACOGDOCHES COUNTY, TEXAS
THE HONORABLE EDWIN A. KLEIN, PRESIDING

TRIAL CAUSE NUMBERS F1421007 AND F1521497
                               Respectfully submitted,



                               KEVIN BELANGER
                               Assistant District Attorney
Oral argument is requested,    Nacogdoches County, Texas
but only ifAppellant is also   State Bar No. 24094534
requesting oral argument.      101 W. Main St., Ste. 250
                               Nacogdoches, Texas 75961
                               Phone:(936)560-7766
                               FAX: (936) 560-6036




                                                             11
                        IDENTITY OF PARTIES & COUNSEL

Appellant. ............................................................ ANDREW PJ WIDTAKER

                                                           Winfred A. Simmons, II
                                                           APPELLATE COUNSEL


Appellee............................................................... TfIE STATE OF TEXAS

                                                           Kevin Belanger
                                                           Assistant District Attorney
                                                           APPELLATE COUNSEL

                                                           Cristin Lane
                                                           Assistant District Attorney
                                                           TRIAL COUNSEL

                                                           Andrew Jones
                                                           Assistant District Attorney
                                                           TRIAL CO-COUNSEL




                                                                                              l1l
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................... .iii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES ..................................................................................... v

STATEMENT OF TIIB CASE ................................................................................. 1

ISSUES PRESENTED .............................................................................................. 3

STATEMENT OF FACTS ........................................................................................ 3

SlJMMARY OF TIIE STATE'S ARGUMENT ....................................................... 5

STATE'S RESPONSE TO APPELLANT'S ARGUMENT ..................................... 6

PRAYER.................................................................................................................. 15

CERTIFICATE OF SERVICE ................................................................................ 16

CERTIFICATE OF COMPLIAN"CE ...................................................................... 17




                                                                                                                         IV
                                          INDEX OF AUTHORITIES

STATUTES                                                                                                                  PAGE

TEX. PENAL CODE (2015)

Sec. 6.03 .............................................................................................................. 11

Sec. 8.02(a) ............................................................................... 13

Sec. 31.07 ................................................................................. 10

RULES


TEX. R. APP. P. (2011)

R. 38 ...................................................................................................................... 1

FEDERAL CASES                                                                                                             PAGE


Jackson v. Virginia, 443 U.S. 307 (1979) ................................................ 9

Strickland v. Washington, 466 U.S. 668 (1984) ..................................... 12

STATE CASES                                                                                                               PAGE


Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ....................... 7,8

Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994) .......................... 9

Banks v. State, 530 S.W.2d 940 (Tex. Crim. App. 1975) ........................... 14

Benavides v. State, 763 S.W.2d 587 (Tex. App.-Corpus Christi 1988,pet. refd)
...............................................................................................................................9

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001) .................................... 9

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) ................................ 10



                                                                                                                                   v
STATE CASES (CON'T)                                                                    PAGE

Kingv. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) .................................. 9, 10

Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986) ................................ 10

McQueen v. State, 781 S.W.2d 600 {Tex. Crim. App. 2001) .................. 11

Okonkwo v. State 398 S.W.3d 689 {Tex. Crim App. 2013) .................. 12, 13

Posey v. State, 966 S.W.2d 57 {Tex. Cr. App. 1998) .......................... 5, 6, 7, 8

Tolbert v. State, 306 S.W.3d 776 (Tex. Crim App. 2010) ......................... .12

Vasquez v. State, 830 S.W.2d 948 {Tex. Crim. App. 1992) ........................ 12

Williams v. State, 692 S.W.2d 671 (Tex. Crim. App. 1984) ............................... 9




                                                                                              VI
                              Nos. 12-15-00068-CR &
                               12-15-00069-CR

                IN THE COURT OF APPEALS FOR THE
            12TH JUDICIAL DISTRICT OF TEXAS AT TYLER


                          ANDREW PJ WHITAKER,
                              APPELLANT

                                        v.

                           THE STATE OF TEXAS,
                                APPELLEE




                             APPELLEE'S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellee, the State of Texas, by and through the

undersigned Assistant District Attorney, and respectfully submits this brief in

response to Appellant, Andrew PJ Whitaker, pursuant to TEX. R. APP. P. 38, urging

the Court to overrule Appellant's alleged point of error and affirm the judgment

and sentence of the trial court in the above-numbered cause.

                         STATEMENT OF THE CASE

      On June 20, 2014, Andrew PJ Whitaker was indicted in cause number

F1421007 in a one count indictment for a State Jail Felony offense of


                                                                                I
Unauthorized Use of a Vehicle committed on or about June 3, 2015. (F1421007, 1

C.R. 6). On February 6, 2015, Andrew PJ Whitaker was indicted in cause number

F1521497 in a one count indictment for a Class A Misdemeanor offense of

Evading Arrest committed on or about June 6, 2015. (F1521497, 1 C.R. 6). This

offense was further aggravated by the fact that Appellant used a vehicle in the

commission of the offense, and had previously been convicted of the felony

offense of Robbery. Ibid.

      Appellant entered his plea of not guilty to in both cases on February 24,

2015. (3 R.R. 9:19-22). On February 24, 2015, a jury found Appellant guilty in

cause numbers F1421007 and F1521497; Unauthorized Use of a Motor Vehicle

and Evading Arrest, respectively.   (3 R.R. 116: 1-8). The offenses for which

Appellant was found guilty were alleged to have occurred on or about June 3 and 6

of2015. (Fl421007, 1 C.R. 6; F1521497, 1 C.R. 6).

      On February 25, 2015, the jury assessed Appellant's punishment at 2 years

confinement in a State Jail Facility in cause number F1421007, and 13 years

confinement to be served in the Texas Department of Criminal Justice in cause

number F1521497. (5 R.R. 28:7-20). Appellant's Notice of Appeal was filed on

February 26, 2015 with the district clerk's office. (F1421007 1 C.R. 36; F1521497

1C.R.25).




                                                                                2
                              ISSUES PRESENTED

      Appellant presents four issues to be addressed by this Court:

      1) Whether the defendant was deprived of a fair trial when the defense of

         mistake of fact was raised by the evidence, but was not submitted to the

         jury as part of the charge, and its absence was not objected to,

      2) Whether the evidence of unauthorized use of a vehicle was sufficient for

         the trier of fact to find the defendant guilty,

      3) Whether the failure of defense counsel to request an instruction on

         mistake of fact or to object to its absence constituted ineffective

         assistance of counsel, and

      4) Whether the defendant was sufficiently harmed by failure to prove venue

         to require a new trial.

                            STATEMENT OF FACTS

      On February 24, 2015, testimony and evidence were presented in the trial

court. Such evidence established that Jesus Barrios Quezada lived in Nacogdoches

County and owned a 2002 Dodge truck. (3 R.R. 16:16-17:7). On June 3, 2014,

Guadalupe Barrios Quezada, Jesus' sister, arrived at Jesus' home and noticed that

the Dodge truck was missing. (3 R.R. 11:11-12:8). She phoned Jesus about the

missing vehicle, then called 911. (3 R.R. 12:9-23). Mr. Barrios Quezada did not

give Appellant, Andrew PJ Whitaker, permission to use his truck. (3 R.R. 18:17-


                                                                                3
19:4).

         On June 6, 2014, at approximately 4:00 A.M., Deputy Austin McDonald

was working patrol. (3 R.R. 28:24-29:3). Deputy McDonald noticed a tan Dodge

truck commit a traffic offense.        (3 R.R. 29:9-13).     Deputy McDonald then

attempted to stop the vehicle, which fled down highway 59. (ST. Ex. 1; 3 R.R. 32-

21 ). During the pursuit, Deputy McDonald ran the plates on the Dodge truck, and

dispatch reported back that it was a stolen vehicle. (3 R.R. 33:21-34:4). After a

lengthy pursuit, the truck became stuck in a median on highway 59, and the

suspect driving the vehicle fled into the nearby woods. (3 R.R. 36:21-24). Deputy

McDonald then caught up to and apprehended the suspect, who turned out to be

Andrew PJ Whitaker. (3 R.R. 37:5-22).

         At the conclusion of the State's case-in-chief, the State rested. (3 R.R. 67:2-

3). The defense then called Appellant Andrew PJ Whitaker to the stand. (3 R.R.

73: 13-14). Appellant stated that he borrowed the truck in exchange for 10 dollars

from a man named "Runny". (3 R.R. 77:8-23, 75:24-76:6). The defense then

rested. (3 R.R. 90:25). After closing remarks, the jury deliberated. (3 R.R. 112:2-

115:10). The jury returned a guilty verdict as to cause numbers F1421007 and

f 1521497. (4 R.R. 4:14-21).

         The punishment phase of the trial followed the guilt/innocence phase. (8

R.R. 7:24). Testimony was elicited and evidence was admitted remarking as to


                                                                                      4
Appellant's past and character. (4 R.R. 5:17-13:16). Again, the jury deliberated,

returning a sentence of 2 years confinement on cause F 1421007 and 13 years

confinement on cause Fl521497.          (4 R.R. 28:7-20).     The sentence in cause

Fl421007 was to be served in state jail, and the sentence in cause Fl521497 was to

be served in the Texas Department of Criminal Justice-Institutional Division with

each count to run concurrently with one another. Ibid.

                   SUMMARY OF THE STATE'S ARGUMENT

         Appellant is not entitled to have his conviction overturned by this Court.

Appellant's first argument is that the trial court has a sua sponte duty to instruct the

jury on unrequested defense issues. Such an argument is without merit - case law

is clear on this point. Posey v. State, 966 S. W.2d 57 {Tex. Cr. App. 1998).

Appellant's second argument, that the evidence of unauthorized use of a motor

vehicle was not sufficient for the jury to return a verdict of guilt, is also without

merit.     A rational trier of fact could have found the essential elements of

Unauthorized Use of a Vehicle proved beyond a reasonable doubt. Appellant's

third argument is that Appellant's trial counsel's failure to request a jury

instruction on mistake of fact or to object to its absence constituted ineffective

assistance of counsel. This argument is also without merit. Trial counsel's failure

to request the instruction and object to its absence was a strategic decision by

counsel, and there is no reason to believe that but for the different instruction, the


                                                                                      5
result of the trial would be different.    Finally, Appellant also argues that he

requires a new trial as the State did not prove venue when it did not elicit evidence

that the crime occurred in Texas - only that the crime occurred in Nacogdoches

County - and that Appellant was substantially harmed as a result of this error.

This argument has no merit - the State proved that the offense occurred in

Nacogdoches County, and therefore proved venue through circumstantial evidence.

Furthermore, any possibility of harm to Appellant would be a legal fiction.

Accordingly, Appellant's conviction and sentence should be upheld.

          STATE'S RESPONSE TO APPELLANT'S ARGUMENT

   A. The trial court does not have a sua sponte duty to instruct the jury on an

      unrequested mistake of fact issue.

      It is not disputed that when Appellant testified at trial, in doing so he raised

the defense of mistake of fact to the jury. The State further does not dispute that

Appellant's defense was "obvious, he believed he had consent of the owner to

possess the vehicle". The State further agrees with Appellant's concession that the

Posey court has held that omission of mistake of fact from a jury charge does not

deny the Appellant a fair trial. Id. at 71. However, Appellant's assertion that

Posey must be distinguished because the defendant did not testify on his own

behalf at trial in that case is disingenuous, as evidence of mistake of fact was




                                                                                    6
submitted to the jury in Posey in the defense' case in chief, even if the defendant

himself did not testify.

       In Posey, the defendant was stopped in a Jaguar by a deputy, and the deputy

noticed that the car was not registered in the defendant's name. Posey at 58. The

deputy noticed that the inside door panel of the driver's side of the

Jaguar was pulled back and the alarm system was cut. Ibid. The defendant told

the deputy that a man named "Chuck" had given him permission to use the vehicle,

and inside the glove compartment of the Jaguar were some repair bills with the

name "Chuck" written on them. Ibid. The owner was in fact a woman named

Wanda Thomas, who did not give anybody permission to use her vehicle, which

she had parked at Hobby Airport on November 4, 1993. Ibid.                Though the

defendant did not testify at trial, he did produce two witnesses.          Ibid.   The

witnesses stated that they saw a man named Charles Yates give the keys to the

Jaguar to the defendant on November 7, 1993. Ibid. This testimony was not

contradicted by any evidence from the State other than impeachment evidence and

cross-examination.     Id. at 59.   The state argued in closing that the defense'

arguments were not worthy of belief.         Ibid.   There was no mistake of fact

instruction in the jury charge - the defendant did not request it, nor did he object to

its absence at trial. Ibid.




                                                                                     7
      The court in Posey upheld the verdict at trial, on the basis that the harm

analysis of Almanza v. State does not apply until the court finds an error in the jury

charge. Id at 61, citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.

1984). The Almanza court set out a framework for analysis on appeal to preserved

and unpreserved errors in a jury charge based on its interpretation of Article 36.19

of the Texas Code of Criminal Procedure.        See Almanza at 171-74. Because

Almanza and Article 36.19 are solely concerned with the harm analysis, neither is

instructive on whether an error actually occurred. See Posey at 60. "Therefore, the

question boils down to whether Article 36.14 imposes a duty on trial courts to sua

sponte instruct the jury on defensive issues, or whether article 36.14 permits a

defendant to complain for the first time on appeal about the omission of

unrequested defensive issues in the charge." Id at 60-61. The Posey court found

that the plain language of 36.14 makes clear that a defendant must object to the

charge to preserve error, and that the trial court does not have a duty to instruct a

jury sua sponte on defensive issues. See Posey at 61-62. Therefore, as there was

no error, the harm analysis under 36.19 and the Almanza court did not apply. Id at

62.

      This case and Posey are functionally identical. The distinction Appellant

attempts to make is irrelevant - even though the defendant in Posey did not testify,

evidence was submitted to the jury, and argued at closing, that the defendant was


                                                                                    8
mistaken in his belief that he had permission from the lawful owner to use the

vehicle. The state, as it did in the instant case, argued that the defense case did not

hold water. Because the charge to the jury was not objected to at trial, and because

the trial court does not have a duty to sua sponte instruct the jury on defensive

issues, no error occurred, and the Almanza harm analysis does not apply.

   B. The evidence of Unauthorized Use of a Vehicle was legally sufficient for

         the jury to return a guilty verdict.

            a. The Legal Sufficiency Standard of Review

         The relevant question in a legal sufficiency review is not whether there is

any evidence to support a conviction, but whether there is sufficient evidence for a

rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); Kingv. State, 29 S.W.3d 556, 562 (Tex. Crim. App.

2000).     In reviewing the legal sufficiency of the evidence under the criminal

standard, all the evidence should be viewed in the light most favorable to the

judgment in order to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S.

at 319; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).

         The trier of fact, in this case the jury, is the exclusive judge of the credibility

of witnesses and of the weight to be given their testimony. Barnes v. State, 876

S.W.2d 316, 321 (Tex. Crim. App. 1994); Williams v. State, 692 S.W.2d 671, 676


                                                                                          9
(Tex. Crim. App. 1984). The jury is entitled to draw reasonable inferences from

the evidence.   Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.-Corpus

Christi 1988,pet. refd). Moreover, reconciliation of any conflict in the evidence

is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309

(Tex. Crim. App. 1986). Although this Court's analysis should properly consider

all the evidence presented at trial, it should not re-weigh the evidence and

substitute its judgment for that of the jury. King, 29 S.W.3d at 562.

      The legal sufficiency of the evidence is measured by the elements of the

offense as defined by the hypothetically correct jury charge, which is a charge that

accurately sets out the law, is authorized by the indictment, and does not

unnecessarily increase the State's burden. Gollihar v. State, 46 S.W.3d 243, 253

(Tex. Crim. App. 2001).

         b. Application of the Law to the Facts of this Case

   There was legally sufficient evidence for a rational trier of fact to find every

essential element proved beyond a reasonable doubt and that Appellant committed

the offense of Unauthorized Use of a Vehicle. A person commits the offense of

Unauthorized Use of a Vehicle ifhe 1) intentionally or knowingly 2) operates

another's boat, airplane, or motor-propelled vehicle 3) without the effective

consent of the owner. TEX. PENAL CODE §31.07 (2015).

      As for the culpable mental states, Texas law defines them as follows:


                                                                                      10
      A person acts intentionally ... with regard to the nature of his conduct
      or to a result of his conduct when it is his conscious objective or
      desire to engage in the conduct or cause the result.

      A person acts knowingly ... with respect to the nature of his conduct
      or to the circumstances surrounding his conduct when he is aware of
      the nature of his conduct or that the circumstances exist. A person acts
      knowingly ... with respect to a result of his conduct when he is aware
      that his conduct is reasonably certain to cause the result.

      TEX. PENAL CODE §6.03 (2015).

   In the instant case, it is not in dispute that Appellant operated another's motor-

propelled vehicle without the effective consent of the owner-what is in dispute is

whether or not he did so knowingly. In this regard, the opinion in McQueen v.

State is instructive. McQueen v. State, 781 S. W.2d 600 (Tex. Crim. App. 2001 ).

The McQueen court held that Unauthorized Use of a Vehicle encompassed two

"conduct elements" which make the overall conduct criminal - that the defendant

intentionally or knowingly operated a motor vehicle, knowing that such operation

was without the effective consent of the owner. McQueen at 604.

      In the instant case, as in McQueen, Mr. Quezada's testimony that he did not

give Appellant permission to use his vehicle proved, from a sufficiency standpoint,

that Appellant knew that he did not have Mr. Quezada's permission. As to the

affirmative defense of mistake of fact, that Appellant had "Runny"' s permission to

use the vehicle and that he believed that "Runny" owned the vehicle, the finder of

fact was free to reject this evidence.


                                                                                        11
   C. Appellant's Counsel was not ineffective for failing to request a mistake

         of fact instruction or object to its absence.

         The relevant question in an ineffective assistance of counsel argument is first

whether in light of all the circumstances, the acts or omissions of trial counsel were

so outside the wide range of professionally competent assistance as to implicate the

adversarial nature of the proceeding. Strickland v. Washington, 466 U.S. 668, 690

(1984). "Defensive issues frequently 'depend upon trial strategy and tactics"', and

therefore the failure to request or object to the lack of any possibly available

defensive instruction is not necessarily objectively unreasonable . Okonkwo v.

State 398 S.W.3d 689, 397(Tex. Crim App. 2013), citing Tolbert v. State, 306

S.W.3d 776, 779-82 (Tex. Crim App. 2010). "Just because a competent defense

attorney recognizes that a particular defense might be available to a particular

offense, he or she could also decide it would be inappropriate to propound such a

defense in a given case." Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App.

1992).

         Trial counsel's conduct in the instant case certainly falls within the scope of

providing a competent defense, and the Okonkwo decision is particularly

instructive. In Okonkwo, the Appellant was charged with forgery of money.

Okonkwo at 692. The Appellant's defense was that he did not know that the

money was counterfeit, and his trial counsel did not request, nor object to the


                                                                                       12
absence of a mistake of fact instruction in the jury charge. However, the Okonkwo

Court on appeal found that trial counsel's actions were objectively reasonable,

given that a mistake of fact instruction could have arguably mislead the jury into

decreasing the state's burden of proof. Id at 696.

      "the instructions on the forgery elements required the State to prove beyond
      a reasonable doubt that appellant actually knew the bills were forged. By
      comparison, had counsel pursued an instruction on mistake of fact to address
      his second alternative theory, the jury would have also had to decide whether
      that belief was reasonable. See TEX. PENAL CODE§ 8.02(a). This would have
      been problematic for appellant because the instruction would have decreased
      the State's burden of proof by permitting the jury to convict him if it
      concluded that his mistake was unreasonable, even if it found that the belief
      was honest. Therefore, counsel was not objectively unreasonable in failing
      to request an instruction that may have caused the jury to convict him based
      on a lessened burden of proof."

      Id at 696.

      Counsel's strategy in the instant case could easily have followed the same

line of logic as the Okonkwo court - had counsel successfully requested a mistake

of fact defense be included in the jury charge, the jury might have been misled that

the State's burden of proof was not to prove that Appellant knew that he did not

have the permission of the rightful owner to operate the motor vehicle, but instead

that Appellant's belief that he had consent to use the motor vehicle was objectively

unreasonable. Therefore, as Appellant's counsel at trial acted to protect his client

from a lowered burden of proof, it cannot be said that trial counsel's strategy

rendered his performance ineffective.


                                                                                       13
D. The State successfully proved that the crime occurred within the state of

   Texas through circumstantial evidence.

   Appellant's argument that the State did not properly prove venue is without

merit. The evidence established that Mr. Barrios Quezada lived in

Nacogdoches County, and kept his 2002 Dodge truck at his home there. (3

R.R. 16: 16-17 :7). Deputy McDonald also testified that he was on patrol on

Highway 7 in Nacogdoches County when he first attempted to pull Appellant

over. (3 R.R. 29:3-8).

   Appellant states in his motion, and the State agrees, that venue need only be

proven by a preponderance of the evidence. Banks v. State, 530 S.W.2d 940,

943 (Tex. Crim. App. 1975). Though there is no direct evidence that

Nacogdoches County is in the State of Texas, there is circumstantial evidence

given that there is no other Nacogdoches County in the entire United States of

America or the State of Texas. This circumstantial evidence was never

contradicted by counsel at trial or on appeal, and certainly meets the standard of

preponderance of evidence to prove venue.

   Furthermore, Appellant cannot articulate any actual harm that was suffered

at a result of the State's failure to prove that venue was proper in Nacogdoches

County. Appellant raises the spectre of forum shopping within the state of

Texas, however this argument is without merit, as again, there is only one


                                                                                   14
   Nacogdoches County in the State of Texas and the entire United States of

   America.

                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, the undersigned counsel for

the State of Texas respectfully requests and prays that this Honorable Court

overrule Appellant's Point of Error and affirm the judgment and sentence of the

420th Judicial District Court of Nacogdoches County, Texas.


                                           Respectfully submitted,



                                           KEVIN BELANGER
                                           Assistant District Attorney
                                           Nacogdoches County, Texas



                                           State Bar No. 24094534
                                           101 W. Main St., Ste. 250
                                           Nacogdoches, TX 75961
                                           Phone: (936) 560-7766
                                           FAX: (936) 560-6036




                                                                              15
                        CERTIFICATE OF SERVICE


      A true copy of the State's briefhas been served via FAX/certified mail/hand

delivery to counsel for Appellant, Winfred A. Simmons II, on this, the 17th day of

September, 2015.




                                           ~
                                           Kevin Belanger




                                                                                 16
                     CERTIFICATE OF COMPLIANCE


      Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this

brief contains 3,436 words-excluding the caption, identity of parties, table of

contents, index of authorities, signature, proof of service, certification, and

certificate of compliance.   This is a computer-generated document created in

Microsoft Word, using 14-point typeface for all text. In making this certificate of

compliance, I am relying on the word count provided by the software used to

prepare the document.




                                           'Ke\lil;Belanger




                                                                                  17
