ACCEPTED 02-17-00338-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 5/24/2018 1:29 PM DEBRA SPISAK CLERK
IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS FILED IN 2nd COURT OF APPEALS DAVID JOE ROWLAND, § FORT WORTH, TEXAS APPELLANT § 5/24/2018 1:29:03 PM § DEBRA SPISAK v. § NO. 02-17-00338-CRClerk § THE STATE OF TEXAS, § APPELLEE §
APPEALED FROM CAUSE NUMBER NO. 1443877D IN THE 213TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE TIMMIE WHITE AND HONORABLE LOUIS E. STURNS, JUDGES PRESIDING.
STATE’S BRIEF
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
JOSEPH W. SPENCE Assistant Criminal District Attorney Chief of Post-Conviction
Oral Argument is requested but ANDRÉA JACOBS only if granted to Appellant. Assistant Criminal District Attorney State Bar No. 24037596 COAappellatealerts@tarrantcountytx.gov
CHRISTOPHER M. BUCKALEW and WILLIAM KNIGHT Assistant Criminal District Attorneys 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 TABLE OF CONTENTS PAGE
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE ..................................................................................1
RESPONSE TO ISSUE PRESENTED ..................................................................... 2
The trial court properly allowed the admission of evidence that Appellant failed to appear during his first trial because the evidence was relevant and the probative value was not substantially outweighed by the danger of unfair prejudice.
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT ................................................................................. 7
ARGUMENTS AND AUTHORITIES ..................................................................... 8
Issue: Whether the testimony related to Appellant leaving a previous court setting was inadmissible because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice.
Response: The trial court did not abuse its discretion in overruling Appellant’s Rule 403 Objections to testimony that Appellant failed to appear at his first trial because the evidence was legally relevant and was not unfairly prejudicial.
I. The evidence at issue, Appellant’s objections, and the Court’s rulings............................................................................. 8
II. The Standard of Review.............................................................. 9
III. The trial court did not abuse its discretion in overruling Appellant’s 403 objections .......................................................11
i A. The trial court was free to disbelieve Appellant’s testimony because it was inconsistent with his actions. ............................................................................11
B. The evidence was legally relevant to the offense because Appellant fled from his trial in this case because he was afraid he would be convicted in this case. ................................................................................14
C. The trial court properly allowed admission of this legally relevant evidence because the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice................ 15
CONCLUSION ........................................................................................................16
PRAYER ..................................................................................................................17
CERTIFICATE OF SERVICE ................................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
ii INDEX OF AUTHORITIES
PAGE(S) CASES
Texas Court of Criminal Appeals
Aguilar v. State, 444 S.W.2d 935 (Tex. Crim. App. 1969) .....................................................10
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) ..........................................10, 14, 15
Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001) .......................................................... 9
Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005) ........................................................ 9
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ............................................ 9-10, 10
Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010), cert. denied, 565 U.S. 830 (2011)..................................................................10
Hodge v. State, 506 S.W.2d 870 (Tex. Crim. App. 1974) ...............................................11, 14
Kelly v. State, 163 S.W.3d 722 (Tex. Crim. App. 2005) ................................................12, 13
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010), cert. denied, 563 U.S. 727 (2010)..................................................................10
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ..................................................9, 10
iii Rumbaugh v. State, 629 S.W.2d 747 (Tex. Crim. App. 1982) ......................................................11
Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) ........................................................ 9
Wockenfuss v. State, 521 S.W.2d 630 (Tex. Crim. App. 1975) ..........................................11, 13, 14
Texas Courts of Appeal
Reyes v. State, 480 S.W.3d 70 (Tex. App. – Fort Worth 2016, pet. ref’d)............................10
STATUTES, RULES, AND ORDINANCES
Tex. R. Evid. 403 .....................................................................................................15
iv IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
DAVID JOE ROWLAND, § APPELLANT § § v. § NO. 02-17-00338-CR § THE STATE OF TEXAS, § APPELLEE §
APPEALED FROM CAUSE NUMBER NO. 1443877D IN THE 213TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE TIMMIE WHITE AND HONORABLE LOUIS E. STURNS, JUDGES PRESIDING.
TO THE HONORABLE JUSTICES OF SAID COURT:
STATEMENT OF THE CASE
CHARGE ............................................................... BURGLARY OF A BUILDING [CR 6, 121; 2 RR 4, 5-6]
THE PLEA (Guilt/Innocence) ............................................................ NOT GUILTY [CR 121; 2 RR 6]
THE VERDICT (Jury) ............................................ BURGLARY OF A BUILDING [CR 121; 4 RR 30]
THE PLEA (Punishment) ......................................... NOT TRUE (STOOD MUTE) [CR 121; 5 RR 6, 69]
THE PUNISHMENT (Court) ..................................................................... 8 YEARS [CR 121; 5 RR 70]
1 RESPONSE TO ISSUE PRESENTED
The trial court properly allowed the admission of evidence that Appellant failed to appear during his first trial because the evidence was relevant and the probative value was not substantially outweighed by the danger of unfair prejudice.
2 STATEMENT OF FACTS
During the early morning hours of October 22, 2015, Matthew Bruce
(“Bruce”) was working security at Harbor One on Eagle Mountain Lake. [3 RR 122-
23, 128-29] While talking with some tenants, Bruce heard a loud metallic crash
coming from the other side of the Flight restaurant. [3 RR 123] Bruce rushed over
to Flight and observed a silver BMW, temporary Texas license number 688-085D,
and two men pushing a metal box up a grassy slope. [3 RR 124, 130] Bruce
approached the two men and recognized one of them as DAVID JOE ROWLAND
(“Appellant”). [3 RR 131] Bruce advised Appellant and his friend to leave. [3 RR
129] Appellant and his friend proceeded to put the metal box into the back of the
vehicle and left the area. [3 RR 129] State records later confirmed the silver BMW,
temporary Texas license number 688-085D, belonged to Appellant. [3 RR 148-49]
Around 9:00 a.m. that morning, the manager, Keith Armstrong
(“Armstrong”) arrived at Flight to begin the day. [3 RR 17, 18] After a few minutes,
he noticed the restaurant’s small safe was missing. [3 RR 19] Armstrong
immediately called David Bryan (“Bryan”), the owner of the restaurant, and Bryan
showed up about an hour later. [3 RR 21, 23] The restaurant had a surveillance
system on which both Armstrong and Bryan identified Appellant inside the locked
restaurant at around the time the safe was stolen. [3 RR 24-26, 56-57; S.Ex. 1]
On February 15, 2017, Appellant was set for trial. [CR 7; PP RR 4]
3 Appellant’s trial attorney requested a continuance. [CR 7, 57; PP RR 4] Counsel
requested a continuance for the following reasons:
• They had been unable to locate a witness for a year but Appellant now had information that could lead to finding him/her [PP RR 4-5];
• Appellant had indicated there was other information that was needed to be thoroughly vetted before trial [PP RR 6];
• Appellant was requesting the continuance [PP RR 6]; and
• Appellant just then said that he may have an alibi witness he would like subpoenaed [PP RR 9].
The judge denied the motion for continuance but offered to appoint an investigator
for witnesses. [PP RR 6] Court was recessed until 10:30 a.m. [PP RR 10]
At 11:30 a.m. the trial court found that Appellant had not returned from recess
even though diligent efforts were made to contact him. [PP RR 11] The trial court
then held Appellant’s bond insufficient, dismissed the jury panel, and issued a capias
for Appellant’s arrest. [PP RR 12]
On February 16, 2017, Appellant’s trial counsel filed motions for an
investigator and to withdraw from representation. [CR 62-68]
On March 1, 2017, Appellant’s case was again called for trial. [CR 8, 69, 70]
Appellant did not appear and his bond was forfeited. [CR 8, 69, 70] The trial court
also granted trial counsel’s motion to withdraw. [CR 68]
On or around August 16, 2017, Appellant was arrested on this case. [CR 71-
73] New trial counsel was then appointed to represent him. [CR 72]
4 On September 18, 2017, Appellant proceeded to trial a second time. [1 RR 1]
A hearing was held outside the presence of the jury regarding whether testimony
regarding Appellant’s failure to return for his first trial was admissible. [3 RR 155]
Appellant testified he did not return to trial for the following reasons:
• Appellant felt trial counsel was not ready. [3 RR 161-62]
• Appellant was concerned that trial counsel had no witnesses or material evidence. [3 RR 162]
• Appellant felt like trial counsel was not acting in Appellant’s best interest. [3 RR 162]
• Appellant felt like he was going to be railroaded. [3 RR 162]
• Appellant “had already entered into discussions with another attorney. And [he] was - - that helped to use that $5,000 to get another attorney to help represent [him].” [3 RR 162]
• Appellant “wanted it resolved.” [3 RR 163]
And Appellant admitted:
• During his first trial, he did not tell the judge that he wanted to hire new counsel. [3 RR 164-65]
• He did not turn himself in after he hired a lawyer. [3 RR 165]
• He had to be arrested to be brought back to court. [3 RR 165]
Appellant’s sister then testified:
• Appellant told her that he did return to court because his attorney did not bring the evidence needed to “prove his case.” [3 RR 167]
• Appellant told her in August, after he was arrested, that he was going to have to get a new attorney. [3 RR 168]
5 • She loved her brother and did not want him to go to prison. [3 RR 169]
The trial court took judicial notice of the District Clerk’s file, overruled Appellant’s
objections, and found the evidence regarding flight admissible. [3 RR 175]
During Appellant’s second trial, Sarah Sherman (“ACDA Sherman”) testified
regarding his flight during his first trial. [3 RR 176-82] ACDA Sherman testified
as follows:
Q. Now, back in February of 2017, did [Appellant] show up whenever he was required to do so by the Court for jury selection?
A. He did not.
Q. In fact, how long did - - we waited quite a while in this courtroom for him, didn’t we?
A. Yeah. I believe we waited about an hour.
[3 RR 179-80] The Court’s Charge did not mention Appellant’s failure to return.
[CR 110-14] Neither prosecutor argued during closing arguments that Appellant
failed to return during his first trial nor that it was evidence of consciousness of guilt.
[4 RR 5-12, 26-29] No connection was ever made to the jury that Appellant’s failure
to return to his first trial was evidence of guilt. [CR 110-114; 3 RR 179-80; 4 RR 5-
12, 26-29]
6 SUMMARY OF ARGUMENT
The trial court’s judgment should be affirmed. While Appellant testified that
he fled because he was afraid he would receive ineffective assistance of counsel at
trial, the trial court was free to disbelieve Appellant’s excuse. For whatever reason
Appellant chose to not return to trial, there was a logical connection to the charged
offense because it was the trial in this case. Therefore, the evidence was legally
relevant to the offense under prosecution. The trial court’s actions were proper.
Appellant’s sole issue should be overruled.
7 ARGUMENTS AND AUTHORITIES
Issue I: Whether the testimony related to Appellant leaving a previous court setting was inadmissible because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice.
Response I: The trial court did not abuse its discretion in overruling Appellant’s Rule 403 objections to testimony that Appellant failed to appear at his first trial because the evidence was legally relevant and was not unfairly prejudicial.
I. The Evidence at Issue, Appellant’s Objections, and the Court’s Rulings
Appellant contends that the trial court reversibly erred in overruling his Rule
403 objection to the testimony that Appellant failed to return during his first trial. See
Appellant’s Brief, p. 7. He argues that since Appellant failed to return only because
he believed he was receiving ineffective assistance of counsel and would be
“railroaded” by the State, the evidence was not “connected to the offense in this case.”
See Appellant’s Brief, p. 10. The admission, he concludes, was therefore error. See
Appellant’s Brief, p. 10.
However, the evidence was connected to this case because Appellant fled his
trial in this case. In addition, the trial court was free to disbelieve Appellant’s
explanation for why he fled. Finally, the issue at trial was Appellant’s guilt. The
trial court therefore did not abuse its discretion in overruling Appellant’s Rule 403
objection because the probative weight of the evidence to demonstrate consciousness
of guilt in a case where Appellant’s defense was that he was not the person who
8 committed the offense was not “substantially” outweighed by its prejudicial effect.
In the alternative, the error was harmless.
II. The Standard of Review
An appellate court must review a trial court’s admission of evidence under the
abuse of discretion standard. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.
App. 2011). Under this standard, a trial court enjoys “wide latitude to exclude, or
particularly in view of the presumption of admissibility of relevant evidence, not to
exclude” evidence. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App.
1990). So long as the court operates “within the bounds of discretion, an appellate
court should not disturb its decision, whatever it may be.” Montgomery, 810 S.W.2d
at 390; see also Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A
trial court abuses its discretion in admitting evidence only if its ruling is so clearly
wrong that it lies outside the “zone of reasonable disagreement.” Montgomery, 810
S.W.2d at 391; see also Tillman, 354 S.W.3d at 435. In other words, an appellate
court must uphold the trial court’s ruling if it is reasonably supported by the record
and is correct under any theory of law applicable to the case. See Carrasco v. State,
154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
Evidence that is relevant may nevertheless be excluded under Rule 403 if the
danger of unfair prejudice substantially outweighs the probative value of the
evidence. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The
9 term “probative value” refers to the inherent probative force of an item of evidence,
or “how strongly it serves to make more or less probable the existence of a fact of
consequences to the litigation.” Id. Only “unfair” prejudice provides a basis for
exclusion of relevant evidence, however. See Montgomery, 810 S.W.2d at 389; see
also Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010), cert. denied,
563 U.S. 727 (2010) (“Rule 403 does not require exclusion of evidence simply
because it creates prejudice; the prejudice must be ‘unfair’”). Unfair prejudice arises
from evidence that has an undue tendency to suggest that a decision be made on an
improper basis, commonly but not exclusively, an emotional one. See Casey, 215
S.W.3d at 879; see also Reyes v. State, 480 S.W.3d 70, 78 (Tex. App. – Fort Worth
2016, pet. ref’d) (“‘Unfair prejudice’ refers to evidence that has an undue tendency
to suggest a decision on an improper basis, such as an emotional one”). Rule 403
applies only when a clear disparity exists between the degree of prejudice of the
offered evidence and its probative value. Davis v. State, 329 S.W.3d 798, 806 (Tex.
Crim. App. 2010), cert. denied, 565 U.S. 830 (2011).
The Court of Criminal Appeals has repeatedly held that flight or failing to
appear for court is generally admissible “as a circumstance from which an inference
of guilt may be drawn.” See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994) (citations omitted); see also Aguilar v. State, 444 S.W.2d 935, 938 (Tex. Crim.
App. 1969) (failure to appear at a previous setting is properly admissible to show
10 flight). Before such evidence is admitted, however, it must appear that it has some
legal relevance to the offense under prosecution. Rumbaugh v. State, 629 S.W.2d
747, 752 (Tex. Crim. App. 1982). Once the State demonstrates some legal relevance,
“. . . the burden then shifts to the defendant to show affirmatively that the escape and flight is directly connected to some other transaction and further show that it is not connected with the offense on trial.”
Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975) (quoting Hodge
v. State, 506 S.W.2d 870, 873 (Tex. Crim. App. 1974) (op. on reh’g)). However,
“[i]f the defendant offers evidence that the escape and flight may have sprung from some other cause, but its connection to the offense on trial remains a logical one, the evidence would still be admissible, the defensive evidence going only to the weight of the evidence.”
Hodge v. State, 506 S.W.2d at 873. In short, absent a showing by the defendant that
the flight was related to circumstances unrelated to the charged offense, evidence of
flight is admissible. See Rumbaugh v. State, 629 S.W.2d at 752.
III. The Trial Court did not Abuse Its Discretion in Overruling Appellant’s Rule 403 Objections.
A. The trial court was free to disbelieve Appellant’s testimony because it was inconsistent with his actions.
As explained above, evidence of flight is admissible unless the defense
demonstrates that the flight had no connection to the charged offense. Id. When
determining whether the flight had any connection to the charged offense, the trial
court heard testimony from Appellant and his sister that Appellant fled because he
11 was afraid he was receiving ineffective assistance of counsel and did not want to be
railroaded by the State on the charged offense. [3 RR 161-69] Appellant argues that
this testimony was consistent with the record that Appellant’s trial counsel requested
a continuance to prepare Appellant’s defense. See Appellant’s Brief, p. 9. However,
Appellant’s testimony was inconsistent with his own actions. And “the factfinder is
empowered, on the basis of credibility and demeanor evaluations, to completely
disregard a witness’s testimony, even if that testimony is uncontroverted.” Kelly v.
State, 163 S.W.3d 722, 727 (Tex. Crim. App. 2005) (hearing on speedy trial claim).
Appellant testified he “had already entered into discussions with another
attorney. And [he] was - - that helped to use that $5,000 to get another attorney to
help represent [him].” [3 RR 162] However, Appellant never advised the trial court
that he wanted to hire a new attorney. [PP RR 4-11; 3 RR 164-65] And, when he
was arrested six months later, he did not have counsel. [CR 72; 3 RR 168]
According to his sister, he told her in August he would need to get a new attorney.
[3 RR 168]
Appellant testified that he “wanted [the case] resolved” and only left because
he was afraid he would not have a defense. [3 RR 163] But Appellant did not return
for his March 1, 2017, setting. [CR 8, 69, 70] Appellant never contacted the court.
[CR 8] And at no time did he turn himself in to have the case resolved. [3 RR 165]
He ultimately had to be arrested to be brought to court. [3 RR 165, 168]
12 Finally, Appellant testified that he left because his first attorney did not have
any witnesses or material evidence to demonstrate his innocence. [3 RR 161-62]
However, Appellant never explained to the court who those witnesses were or what
material evidence trial counsel did not have with him. [3 RR 161-62] During the
hearing on the motion for continuance in February 15, 2017, Appellant’s first
attorney advised the trial court that he needed a continuance to obtain (1) a witness
to testify regarding the ownership of the automobile, (2) a possible alibi witness, and
(3) additional information. [PP RR 4-5, 6, 9] But there was never any showing to
the trial court, during the motion for continuance or during the admissibility hearing,
as to who those witnesses are or what additional information should have been
presented.
The trial court was tasked with deciding whether there was any connection
between Appellant’s flight and the charged offense. See Wockenfuss v. State, 521
S.W.2d at 632. In doing so, the court heard the evidence and was free to believe or
disbelieve each witness. See Kelly v. State, 163 S.W.3d at 727 (speedy trial hearing).
And, based on Appellant’s own actions, the trial court was free to find that
Appellant’s argument that he fled because he was afraid he was not going to be
defended at trial was not credible.
13 B. The evidence was legally relevant to the offense because Appellant fled from his trial in this case because he was afraid he would be convicted in this case.
Assuming, without conceding, that Appellant truly fled because he was afraid
that he was going to receive ineffective assistance of counsel in this case, the
evidence was still legally relevant because Appellant fled his trial in this case. As
the Texas Court of Criminal Appeals held in Bigby v. State,
Appellant’s attempted escape clearly had relevance to appellant’s guilt of the crime charged as it was committed during the guilt phase of the trial.
Bigby v. State, 892 S.W.2d at 883. Here, just like in Bigby, Appellant was trying to
flee the guilt phase of his trial. No matter what the reason, Appellant did not want
to go to trial in this case. Therefore, the connection to this case is still a logical one.
While Appellant was free to explain to the jury why he fled his first trial, the
explanation did not make the evidence any less admissible. See Hodge v. State, 506
S.W.2d at 873. The evidence was legally relevant.
Because the evidence was legally relevant, and Appellant was unable to
demonstrate the flight was not connected with the offense at trial, the evidence was
generally admissible. See Wockenfuss v. State, 521 S.W.2d at 632.
14 C. The trial court properly allowed admission of this legally relevant evidence because the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
Otherwise admissible evidence can become inadmissible if the probative
value of the evidence was substantially outweighed by the danger of unfair
prejudice. See Tex. R. Evid. 403. To make this determination, this Court should
“look to the strength of the [State’s] other evidence tending to show [Appellant]
committed the crime charged.” Bigby v. State, 892 S.W.2d at 883 (citation omitted).
In addition, it should consider the State’s “need” for the evidence and “the time it
may take to prove such evidence in determining the prejudicial effect of the
evidence.” Id. (citation omitted).
“[E]vidence of flight goes to the very guilt of [A]ppellant.” Id. at 884. As
such, it enhances the State’s case. Id. And here, the other evidence of guilt against
Appellant was strong. Appellant was identified by three witnesses and the jury
viewed video evidence of Appellant in the restaurant at the time of the offense. [3
RR 24-26, 56-57, 131; S.Ex. 1] In addition, an eyewitness identified Appellant’s
vehicle by its license plate number as the vehicle of the persons that were in
possession of a “metal box” like the safe stolen from the restaurant. [3 RR 124, 130,
148-49]
Comparatively, the State spent very little time on the evidence of flight.
ACDA Sherman only testified that Appellant did not show up for jury selection and
15 the parties waited an hour before calling it a day. [3 RR 179-80] Neither the Court’s
Charge nor the State’s arguments mentioned the flight. [CR 110-14; 4 RR 5-12, 26-
29] And no connection was ever made to the jury that Appellant’s failure to return
to his first trial was evidence of guilt. [CR 110-114; 3 RR 179-80; 4 RR 5-12, 26-
29]
In short, the probative value of the evidence was not substantially outweighed
by its prejudicial nature in this case. Appellant’s sole point of error should be
overruled.
CONCLUSION
Appellant’s sole issue should be overruled. Because Appellant fled his first
trial on this offense, his flight was relevant to this offense. Appellant’s reasons for
his flight only went to the weight of the evidence and not its admissibility as there
was a logical connection between the flight and the charged offense. Therefore, the
trial court properly admitted the evidence as it was legally relevant. The trial court’s
judgment should be affirmed.
16 PRAYER
The State prays that this Court affirm the trial court’s judgment and overrule
Appellant’s sole issue.
Respectfully submitted,
SHAREN WILSON Criminal District Attorney Tarrant County
JOSEPH W. SPENCE, Chief Post-Conviction
/s/ Andréa Jacobs Andréa Jacobs, Assistant Criminal District Attorney State Bar No. 24037596 401 West Belknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672 COAappellatealerts@tarrantcountytx.gov
CERTIFICATE OF SERVICE
I hereby certify that a copy of the State’s Appellate Brief was e-served on the
24th day of May, 2018, to Appellant, David Joe Rowland, by and through his
attorney-of-record, Mr. Brian J. Newman, Brian_Newman@defendyourfuture.com,
209 W. 2nd Street, Suite 347, Fort Worth, Texas 76102.
/s/ Andréa Jacobs Andréa Jacobs
17 CERTIFICATE OF COMPLIANCE
The total number of words in this State’s Brief, including any caption, identity
of parties and counsel, statement regarding oral argument, table of contents, index
of authorities, statement of the case, statement of the issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and/or appendix, is 4138 words, as
determined by the word count feature of Microsoft Office Word 2013.