ACCEPTED 07-14-00339-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/19/2015 11:58:16 PM Vivian Long, Clerk
FILED IN 7th COURT OF APPEALS NO. 07-14-00339-CR AMARILLO, TEXAS 6/19/2015 11:58:16 PM IN THE COURT OF APPEALS VIVIAN LONG CLERK FOR THE SEVENTH JUDICIAL DISTRICT AMARILLO, TEXAS
CURTIS WOODRUFF v. THE STATE OF TEXAS
BRIEF OF APPELLANT
ON APPEAL FROM CAUSE NO. 2014-403,191 IN THE 140TH DISTRICT COURT LUBBOCK COUNTY, TEXAS HON. JIM BOB DARNELL, JUDGE PRESIDING
JULIE GOEN PANGER Counsel for Appellant The Kiechler Law Firm 619 Broadway Street Lubbock, Texas 79401 Telephone (806) 712-2889 Facsimile (808) 712-2529 State Bar Number 24069793 Email: julie@thelubbocklawyer.com
ORAL ARGUMENT NOT REQUESTED IDENTITY OF PARTIES AND COUNSEL
CURTIS WOODRUFF ........................................................................... Defendant/Appellant
JESSE MENDEZ, MARLISE HERNANDEZ BOYLES ................... Trial Counsel for Appellant Attorney at Law 2833 74th Street Lubbock, Texas 79423
JULIE GOEN PANGER ....................................................... Appellate Counsel for Appellant The Kiechler Law Firm, PLLC 619 Broadway Street Lubbock, Texas 79401
THE STATE OF TEXAS ...................................................................... Prosecution/Appellee
TRACI BOWMAN, COURTNEY GRAFFT ..................................... Trial Counsel for Appellee Lubbock County District Attorney’s Office 904 Broadway Street, 2nd Floor Post Office Box 10536 Lubbock, Texas 79408
JEFFREY S. FORD ................................................................. Appellate Counsel for Appellee Lubbock County District Attorney’s Office 904 Broadway Street, 2nd Floor Post Office Box 10536 Lubbock, Texas 79408
BRIEF OF APPELLANT i TABLE OF CONTENTS
Identity of Parties and Counsel...............................................................................................i
Index of Authorities ...............................................................................................................iii
Statement of the Case ........................................................................................................... iv
Issues Presented...................................................................................................................... v
Statement of Facts .................................................................................................................. 1
Summary of the Argument .................................................................................................... 4
Argument ................................................................................................................................. 5
Issue One.................................................................................................................... 5 The trial court erred in overruling Woodruff’s objection to Officer Sims’ testimony regarding Woodruff’s questioning and arrest, because the statements and evidence discussed by the officer were obtained without Woodruff being read his Miranda warning.
Issue Two ................................................................................................................ 11 The evidence presented at trial was insufficient to prove that Woodruff committed the acts for which he was charged and convicted.
Prayer ..................................................................................................................................... 14
Certificate of Service ............................................................................................................ 15
Certificate of Compliance .................................................................................................... 15
BRIEF OF APPELLANT ii INDEX OF AUTHORITIES
CASES Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) ........................................................................ 12
Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001) .......................................................................... 12
Creager v. State, 952 S.W.2d 852 (Tex.Crim.App. 1997) .......................................................................... 7
Dickerson v. United States, 530 U.S. 428 (2000) .......................................................................................................... 7
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) ............................................................................ 6
Gear v. State, 340 S.W.3d 743 (Tex.Crim.App. 2011) ........................................................................ 11
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007) ............................................................................ 12
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................................................. 11, 12
Miranda v. Arizona, 384 U.S. 436 (1966) ...................................................................................................passim
Missouri v. Seibert, 542 U.S. 600 (2004) .......................................................................................................... 7
Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App. 2001) ........................................................................ 8, 9
STATUTORY PROVISIONS Tex. Code Crim. P. art. 32.51.............................................................................................. 13
BRIEF OF APPELLANT iii STATEMENT OF THE CASE
The entire record consists of the Clerk’s Record (one volume), and the
Reporter’s Record of the trial (seven volumes). The Clerk’s Record will be referenced
as “C.R.” with the page number following. The Reporter’s Record will be referenced
as “R.R.” with the volume number preceding and the page number following.
On August 26, 2014, a jury convicted Curtis Woodruff of the offense of
fraudulent use or possession of identifying information. 5 R.R. 29; C.R. 74, 82-84; see
TEX. PEN. CODE ANN. § 32.51(c)(1). After pleading true to certain enhancements, the
trial court assessed Woodruff’s punishment at confinement in the Texas Department
of Corrections for eighteen (18) years. 6 R.R. 12, 14-15; C.R. 82-84. Woodruff timely
filed a Notice of Appeal on August 27, 2014. C.R. 76. On September 23, 2014,
Woodruff filed a Motion for New Trial and Motion in Arrest of Judgment, both of
which were denied by operation of law. C.R. 86-87.
BRIEF OF APPELLANT iv ISSUES PRESENTED
1. The trial court erred in overruling Woodruff’s objection to Officer Sims’ testimony regarding Woodruff’s questioning and arrest, because the statements and evidence discussed by the officer were obtained without Woodruff being read his Miranda warning.
2. The evidence presented at trial was insufficient to prove that Woodruff committed the acts for which he was charged and convicted.
BRIEF OF APPELLANT v TO THE HONORABLE SEVENTH COURT OF APPEALS:
STATEMENT OF FACTS
Curtis Woodruff was indicted for possessing identifying information (a
checkbook) of someone else, without that person’s consent and with the intent to
harm or defraud that person. See C.R. 7.
Early in the morning hours of October 1, 2013, Lubbock police officer Brad
Sims was dispatched to a location in Lubbock, Texas, regarding a possible vehicle
burglary in progress. 4 R.R. 16. Officer Sims drove to the area and located someone
matching Dispatch’s description of the suspect. 4 R.R. 17-19.
Curtis Woodruff, the person identified by Officer Sims, stopped, turned
around, and complied with the officer’s requests.1 4 R.R. 19-20. Woodruff placed his
hands on the hood of the patrol car, and Officer Sims performed a pat-down search,
because Woodruff was in the area of a possible vehicle burglary, matched the
description of the alleged burglar, and had multiple items in his hands that might have
concealed a weapon. 4 R.R. 21-22. During the pat-down, Officer Sims did not feel
anything unusual that gave him cause to further investigate. 4 R.R. 22-23.
The officer asked Woodruff for consent to search his pockets, which Woodruff
granted. 4 R.R. 23. Woodruff’s pockets contained two debit cards with names on
1 Although Officer Sims’ patrol vehicle was equipped with recording equipment on the night in question, the recording was not available at trial, because Officer Sims failed to mark the recording as evidence. Consequently, the recording was purged from the storage system. 4 R.R. 20-21. Later in the encounter, at least two other officers arrived on scene with working recording equipment, but none of the recordings were maintained for trial. 4 R.R. 44.
BRIEF OF APPELLANT 1 them other than Woodruff. 4 R.R. 23. Woodruff’s answers to questions about the
card caused the officer to place Woodruff in handcuffs and detain him for additional
investigation. 4 R.R. 25-26.
Woodruff gave consent for Officer Sims to search his bags after Woodruff was
handcuffed and placed in the patrol car. 4 R.R. 26. The bag contained, among other
items, a knife, a checkbook with the names of people other than Woodruff, and a
Chase Bank envelope with $25.00 in cash inside the envelope. 4 R.R. 26-29, 36. The
briefcase contained a portable grill. 4 R.R. 37.
After the extensive investigation and interrogation, Officer Sims read Woodruff
his Miranda warning. 4 R.R. 37. According to Officer Sims, Woodruff waived his
Miranda rights and chose to speak with the officer. 4 R.R. 37. Woodruff provided
Officer Sims an explanation of how he came into possession of the items and denied
having been in the area of the vehicle burglaries. 4 R.R. 37-38. The officer did not
believe Woodruff’s stories. 4 R.R. 38. After failing to locate the debit card and
checkbook owners, Officer Sims placed Woodruff under arrest and transported him
to jail. 4 R.R. 39-40.
Woodruff objected to the State entering into evidence the events and
conversations that occurred prior to and after Officer Sims’ reading Woodruff his
Miranda rights. 3 R.R. 113-115. At a hearing on the matter, Officer Sims testified that
he made contact with Woodruff because he matched the description from Dispatch
of a person who had possibly burglarized vehicles. 3 R.R. 116, 119, 121. He provided
BRIEF OF APPELLANT 2 the timeline of his interrogation and arrest of Woodruff, as set forth above. 3 R.R.
122-130. The officer testified that he suspected a crime had occurred, and Woodruff
was a suspect in the crime. 3 R.R. 125. But, a lengthy investigation occurred prior to
Woodruff being read his Miranda rights. 3 R.R. 127.
Officer Sims acknowledged that when Woodruff was asked to place his hands
on the patrol vehicle, at the very onset of the officer’s interaction with Woodruff,
Woodruff was not free to leave. 3 R.R. 135-136. In fact, Woodruff could have been
charged with evading arrest or detention had he left the scene. 3 R.R. 135-136. This
occurred prior to any search of Woodruff’s person or his belongings and prior to any
specific questions about the possible vehicle burglaries. 3 R.R. 136. Woodruff was not
Mirandized at this point.
The investigation continued while Woodruff was searched and questioned
about his possible involvement in the alleged burglaries, which may have taken thirty
(30) minutes. 3 R.R. 136-143, 145. Officer Sims admitted that, before making contact
with Woodruff, he advised Dispatch that he was with someone he believed was a
suspect in the possible vehicle burglaries. 3 R.R. 143. The officer also disclosed that,
to his knowledge, no eyewitnesses were able to say that Woodruff was the person
who allegedly burglarized vehicles. 3 R.R. 147-148.
The trial court overruled Woodruff’s objection to the admission of evidence
and statements obtained before Officer Sims read Woodruff his Miranda rights. 3 R.R.
BRIEF OF APPELLANT 3 158. The trial court, however, sustained the objection as to any statements made by
Woodruff after he was Mirandized. 3 R.R. 158.
Officer Sims testified in front of the jury as to the events set forth above, and
at the close of the guilt/innocence portion of Woodruff’s trial, the jury found
Woodruff guilty of fraudulent use or possession of identifying information. 5 R.R. 29.
After electing for the trial court to assess punishment, Woodruff pleaded true to
certain enhancements, which increased his possible range of punishment. 6 R.R. 10-
14. The trial court sentenced Woodruff to a term of eighteen (18) years in prison. 6
R.R. 14-15.
SUMMARY OF THE ARGUMENT
Woodruff’s Fifth Amendment rights were violated when he was questioned
extensively by police about alleged vehicle burglaries before he was read his Miranda
rights. The investigating officer testified that he located Woodruff due to his close
proximity to the alleged burglaries and the fact that his description was consistent
with the description he received from Dispatch. Prior to any interaction with
Woodruff, the officer informed Dispatch that he was with a suspect in the alleged
burglaries. The officer also testified that almost immediately after his initial interaction
with Woodruff, Woodruff was no longer free to leave the scene. Woodruff was
searched and questioned extensively about his possible involvement in the alleged
burglaries, almost all of which occurred prior to being read his Miranda rights. Any
testimony regarding statements and evidence obtained by the officer after Woodruff
BRIEF OF APPELLANT 4 was detained and had his freedom to leave deprived should have been suppressed by
the trial court.
Without the testimony of Officer Sims regarding Woodruff, the evidence at
trial was not sufficient to prove that Woodruff committed fraudulent use or
possession of identifying information. Officer Sims testified that no witnesses were
able to identify Woodruff as the person who allegedly burglarized vehicles.
ARGUMENT
Issue One: The trial court erred in overruling Woodruff’s objection to Officer Sims’ testimony regarding Woodruff’s questioning and arrest, because the statements and evidence discussed by the officer were obtained without Woodruff being read his Miranda warning.
Woodruff’s Fifth Amendment rights were violated when he was questioned
extensively by police about alleged vehicle burglaries before he was read his Miranda
rights. The investigating officer testified that he located Woodruff due to his location
and the fact that his description was consistent with that of the suspect in the alleged
burglaries. Prior to any interaction with Woodruff, the officer informed Dispatch that
he was with a suspect in the alleged burglaries. The officer also testified that almost
immediately after his initial interaction with Woodruff, Woodruff was no longer free
to leave the scene. Woodruff was searched and questioned extensively about his
possible involvement in the alleged burglaries, almost all of which occurred prior to
being read his Miranda rights. Any testimony regarding statements and evidence
BRIEF OF APPELLANT 5 obtained by the officer after Woodruff was not free to leave should have been
suppressed.
Argument and Authorities
In reviewing a trial court’s ruling on a Miranda violation claim, an appellate
court conducts a bifurcated review: it affords almost total deference to the trial court’s
rulings on questions of historical fact and on application of law to fact questions that
turn upon credibility and demeanor, and it reviews de novo the trial court’s rulings on
application of law to fact questions that do not turn upon credibility and demeanor.
Ripkowski v. State, 61 S.W.3d 378, 381-382 (Tex.Crim.App. 2001) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
In Miranda v. Arizona, the Supreme Court held that
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. . .
Miranda, 384 U.S. 436, 444-445 (1966). The requirements of warning and waiver of
rights set forth in Miranda serve to protect the Fifth Amendment right against
BRIEF OF APPELLANT 6 compelled self-incrimination. Dickerson v. United States, 530 U.S. 428, 440 n. 4 (2000);
see Miranda, at 384 U.S. 436.
In Missouri v. Seibert, a plurality of the United States Supreme Court stated that
“the threshold issue when interrogators question first and warn later is thus whether it
would be reasonable to find that in these circumstances the warnings could function
“effectively” as Miranda requires.” Missouri v. Seibert, 542 U.S. 600, 611-12 (2004). As
such, the Court noted certain relevant facts that bear on whether Miranda warnings
delivered midstream could be effective enough to accomplish their object: the
completeness and detail of the questions and answers in the first round of
interrogation; the overlapping content of the two statements; the timing and setting of
the first and the second; the continuity of police personnel; and the degree to which
the interrogator’s questions treated the second round as continuous with the first.” Id.
at 615-616.
The Texas Court of Criminal Appeals has long held that the State bears the
burden of proving admissibility when a Miranda violation is found. See, e.g., Creager v.
State, 952 S.W.2d 852, 860 (Tex.Crim.App. 1997).
Woodruff was in a custodial interrogation when he was questioned.
The requirement that police advise a person of rights prior to interrogation
applies if the person is “in custody or otherwise deprived of his freedom of action in
any significant way.” Miranda, at 445. A custodial interrogation occurs when a
defendant is in custody and is exposed to any words or actions on the part of the
BRIEF OF APPELLANT 7 police that the police should know are reasonably likely to elicit an incriminating
response. Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001).
When the officer first confronted Woodruff on the side of the street, he told
Woodruff to put all his belongings on the ground and place his hands on the patrol
vehicle. At this point, Officer Sims expressly acknowledged that Woodruff was not
free to leave. In fact, the officer testified that Woodruff could have been charged with
evading arrest or detention if he had left the scene at that time.
Based upon Officer Sims’ testimony, Woodruff was in a custodial interrogation
as defined by Miranda. Woodruff was deprived of his freedom of action in a very
significant way – he was not free to leave when he was ordered to place his hands on
the patrol vehicle. This level of deprivation only increased over the course of the
interrogation, as Woodruff was later arrested, placed in the patrol car, and then
formally arrested and taken to jail.
Woodruff’s questioning was initiated by law enforcement.
Officer Sims determined that Woodruff was a suspect before making contact
with him, due to his physical appearance and close proximity to the alleged burglaries.
Woodruff’s questioning was initiated by law enforcement – he was confronted by
Officer Sims while walking along the street. He did not voluntarily meet with the
officer.
BRIEF OF APPELLANT 8 Woodruff was exposed to words on the part of Officer Sims that the officer should have known were reasonably likely to elicit an incriminating response from Woodruff.
As set forth above, a custodial interrogation occurs when a defendant is in
custody and is exposed to any words or actions on the part of the police that the
police should know are reasonably likely to elicit an incriminating response. Roquemore,
60 S.W.3d at 868.
Officer Sims did not randomly stop Woodruff on the side of the street – he did
so because Woodruff matched the description of the alleged vehicle burglar and was
in close proximity to the location of the burglaries. When Officer Sims searched
Woodruff’s pockets and located the debit cards with identifying information from
someone else, the officer should have known that any questions about the cards were
reasonably likely to elicit incriminating responses from Woodruff. Yet, Officer Sims
questioned Woodruff about the debit cards without Mirandizing him.
Woodruff’s responses to the officer’s questions caused him to place Woodruff
in handcuffs and detain him in the back seat of the patrol vehicle. His freedom was
deprived in the most literal manner, yet Officer Sims continued to interrogate
Woodruff without Mirandizing him. The officer searched Woodruff’s bag and
briefcase and only then decided to provide Woodruff with a Miranda warning.
The checkbook upon which Woodruff’s indictment was based was not located
by Officer Sims until well after Woodruff should have been read his Miranda rights.
BRIEF OF APPELLANT 9 From the time Woodruff placed his hands on the patrol vehicle, he was in a
custodial interrogation, and he should have been read his Miranda rights. Prior to
Woodruff being Mirandized, Officer Sims obtained all the evidence and almost all the
statements used to prosecute Woodruff at trial. As such, the trial court erred in
overruling Woodruff’s objection to Officer Sims’ testimony about the statements and
evidence obtained prior to Woodruff being Mirandized.
Conclusion
Because Woodruff was deprived of his freedom in a significant way during the
entirety of Officer Sims’ investigation, any statements or evidence obtained during
that interrogation should have been suppressed, because Woodruff was not read his
Miranda rights. Officer Sims knew that the answers to the questions he asked would
likely incriminate Woodruff in the alleged vehicle burglaries, yet he continued with the
interrogation without notifying Woodruff of his constitutional rights. Once he did
notify Woodruff of his Miranda rights, the evidence and statements were obtained as a
result of the improper pre-Miranda interrogation.
Moreover, the Miranda warnings delivered midstream were not effective
enough to accomplish their object, as set forth in Seibert. Specifically, the officer
questioned first and obtained all the necessary statements and evidence needed for
Woodruff’s prosecution before Mirandizing Woodruff. The entire interrogation took
place in one setting, but the warning was not delivered until the necessary evidence
BRIEF OF APPELLANT 10 was obtained. All statements and evidence obtained after Woodruff was ordered to
place his hands on the patrol car should have been suppressed.
The trial court’s failure to sustain Woodruff’s objection violated Woodruff’s
federal and state constitutional rights and Texas statutory rights. This Court should
reverse the trial court’s judgment and remand this case for a new trial in which the
State cannot adduce improperly-obtained evidence and statements to prosecute
Woodruff.
Issue Two: The evidence presented at trial was insufficient to prove that Woodruff committed the acts for which he was charged and convicted.
Without the testimony of Officer Sims regarding Woodruff, which should have
been suppressed, the evidence at trial was not sufficient to prove that Woodruff
committed fraudulent use or possession of identifying information. Officer Sims
testified that no witnesses were able to identify Woodruff as the person who allegedly
burglarized vehicles.
In reviewing a challenge to the sufficiency of evidence, an appellate court
examines all the evidence in the light most favorable to the verdict and determines
whether a rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789
(1979); Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011). This standard
accounts for the factfinder’s duty “to resolve conflicts in the testimony, to weigh the
BRIEF OF APPELLANT 11 evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Jackson, at 319. Therefore, in analyzing legal sufficiency, an appellate court must
“determine whether the necessary inferences are reasonable based upon the
cumulative force of all the evidence when viewed in light most favorable to the
verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (citing Hooper v.
State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). This review of “all of the evidence”
includes evidence that was properly and improperly admitted. Clayton, at 778 (citing
Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Evidence is insufficient to
support a conviction in two circumstances: (1) the record contains no evidence, or
merely a “modicum” of evidence, probative of an element of the offense, or (2) the
evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318
n. 11.
Without Officer Sims’ testimony regarding Woodruff, the record contains no evidence to establish that Woodruff committed the offense for which he was charged.
The evidence is legally insufficient to support Woodruff’s conviction. The jury
had to find that Woodruff fraudulently used or possessed identifying information of
someone else, without consent and with the intent to harm or defraud that person.
However, without the testimony of Officer Sims that should have been suppressed, as
set forth in Issue One, the record contains no evidence to show that Woodruff
fraudulently used or possessed identifying information as set forth in Woodruff’s
indictment.
BRIEF OF APPELLANT 12 Pursuant to the Texas Penal Code, in relevant part, a person commits the
offense of fraudulent use or possession of identifying information if he, with the
intent to harm or defraud another, obtains, possesses, transfers, or uses an item of . . .
identifying information of another person without the other person’s consent . . .” See
TEX. PEN. CODE § 32.51.
All evidence tending to show that Woodruff fraudulently used or possessed
identifying information of someone else was obtained while Woodruff was subjected
to a custodial interrogation without having been read a Miranda warning. See Issue
One. As such, the evidence offered by the State to prove Woodruff’s guilt was
improperly admitted. Additionally, Officer Sims testified that no eyewitnesses to the
alleged vehicle burglaries were able to identify Woodruff as the person who allegedly
Without Officer Sims’ improperly admitted evidence, and without any
eyewitnesses to testify regarding Woodruff, the State failed to meet its burden to
prove beyond a reasonable doubt that Woodruff fraudulently used or possessed the
identifying information indicated in the indictment, one of the elements of the crime
for which he was charged and convicted by the jury.
Because the only evidence admitted to show Woodruff’s guilt was improperly
admitted, the State failed to produce sufficient evidence to prove beyond a reasonable
BRIEF OF APPELLANT 13 doubt that Woodruff committed the offense for which he was charged. Therefore,
this Court should reverse Woodruff’s conviction and render a judgment of acquittal.
PRAYER
Appellant Curtis Woodruff asks this Court to: (1) reverse the trial court’s
decision to admit statements and evidence obtained by the State as a result of a
Miranda violation, and (2) render a judgment of acquittal for Woodruff, because the
State failed to produce sufficient evidence to prove that Woodruff was guilty of the
offense beyond a reasonable doubt. Woodruff further requests that this Court grant
any such other and further relief to which Woodruff may show himself justly entitled.
Respectfully submitted,
__/s/ Julie Goen Panger_______ Julie Goen Panger Attorney for Appellant The Kiechler Law Firm, PLLC 619 Broadway Street Lubbock, Texas 79401 Telephone (806) 712-2889 Facsimile (806) 712-2529 Email: julie@thelubbocklawyer.com State Bar Number 24069793
BRIEF OF APPELLANT 14 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following parties by electronic service on June 19, 2015:
JEFF FORD Lubbock County District Attorney’s Office Appellate Division, Chief 904 Broadway P.O. Box 10536 Lubbock, Texas 79408 Counsel for Appellee jford@co.lubbock.tx.us
__/s/ Julie Goen Panger_______ Julie Goen Panger
CERTIFICATE OF COMPLIANCE In accordance with Texas Rule of Appellate Procedure 9.4(i), the undersigned
attorney of record certifies that the Brief of Appellant contains 3,263 words, excluding
those words identified as not being counted in TEX. R. APP. P. 9.4(i)(1), and was
prepared on Microsoft Word 2013®.
__/s/ Julie Goen Panger____ ____ Julie Goen Panger
BRIEF OF APPELLANT 15