WR-85,447-0 COURT OF CRIMINAL APPEAL: AUSTIN, TEXA: Transmitted 4/16/2018 9:41 PP Accepted 4/18/2018 11:40AP DEANA WILLIAMSOI NO. WR-85,447-01 CLERI
IN THE COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS DEANA Cl'Smson, clerk AT AUSTIN, TEXAS
EX PARTE JEREMY WADE PUE, Applicant
On Art. 11.07 Application for Writ of Habeas Corpus Arising out of Cause Number CR2008-214-1 in the 207th District Court ofComal County, Texas
STATE'S MOTION FOR REHEARING
ATTORNEY FOR THE STATE
Sammy McCrary Chief Felony Prosecutor Comal County, Texas Texas Bar No. 90001990 150 N. Seguin Ave., Suite 307 New Braunfels, Texas 78130 (830) 221-1300 (830) 608-2008 (FAX) Email: mccras(£>co.comal.tx..us
ORAL ARGUMENT REQUESTED NO. WR-85,447-01
IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Comes now the State of Texas, Appellee in the above-entitled and -
numbered cause, and respectfully urges this Court to grant rehearing and deny
relief to the Applicant and in support thereof would show the Court as follows: GROUNDS FOR REHEARING
The statutory basis for holding that a probated sentence is not "final" was
long ago removed from our law by the Texas Legislature. Furthermore, denying
the use of a conviction followed by a suspended or probated sentence is contrary
to the express purposes of recidivist statutes. For these reasons, the State
respectfully requests that this Court grant rehearing in this matter, hold that
pursuant to Texas law a probated or suspended sentence is "final" for purposes of
enhancement, and deny relief to the Applicant.
STATEMENT OF THE CASE
In 2008, Applicant, Jeremy Wade Pue, was convicted by a jury of the third-
degree felony offense of evading arrest or detention with a vehicle. Because his
sentence was enhanced by two prior California felony convictions, one from 2002
and the other from 2007, the trial court sentenced Applicant to thirty years in
prison as a habitual offender. Subsequently, by way of application for writ of
habeas corpus, Applicant claimed that his thirty-year sentence was illegal because
it had been improperly enhanced by the 2007 California conviction. Ex parte Pue,
No. WR-85,447-01, 2018 Tex. Crim. App. LEXIS 63, at *1 (Crim. App. Feb. 28,
2018). While addressing that issue, by order dated November 1, 2017, this Court
noted that further briefing would be useful and invited both parties to provide this Court with legal and policy arguments as to whether, for purposes of punishment
enhancement in a Texas prosecution, the "finality" of an out-of-state conviction
should be determined in accordance with the law of the foreign jurisdiction or in
accordance with Texas law. Id. at *3. Ultimately, this Court held that whether
Applicant's 2007 California conviction could have been used as a punishment
enhancement in California did not control whether it was available for use as a
punishment enhancement in Applicant's Texas prosecution. This Court further
held that whether a prior conviction—in-state or out-of-state—is "final" under
Texas Penal Code § 12.42 is to be determined in accordance with Texas law. Id. at
*3-4. As a result, this Court found that Applicant's sentence was improperly
enhanced by the 2007 California conviction and granted relief. Id. at *2. However,
in reaching that conclusion, this Court noted that in its supplemental briefing the
State had argued that most other state and federal courts consider probated
sentences to be final convictions and stated, "We have not been asked to change
our longstanding Texas rule on this issue nor are we persuaded that we should do
so on our own motion." Id. at *5.
In this motion for rehearing, the State now respectfully asks this Honorable
Court to do exactly that, to find that a probated conviction is a "final" conviction
under Texas law and deny relief to Applicant. History ofthe View That a Suspended or Probated Sentence Is Not a Final Conviction
As this Court recognized in its original opinion, there are numerous cases
dating back almost one hundred years that seem to stand for the proposition that a
probated sentence is not a "final" conviction for purposes of enhancement under
Texas law. Although this proposition might seem well established and
unquestionable on its face, a review of its origins reflects that the basis for this
proposition ceased to exist many years ago. The earliest case cited by this Court
was the 1919 opinion rendered in Brittian v. State, 214 S.W. 351 (Tex. Crim. App.
1919). See Ex parte Pue, 2018 Tex. Crim. App. LEXIS 63 at *5. However,
Brittian cites back to a case decided the previous month, Ex parte Coots, 212 S.W.
173 (Tex. Crim. App. 1919).
In Coots, a jury had convicted the defendant of a felony and sentenced him
to a term of three years in the penitentiary. Id. at 173. However, at the same time,
the jury gave the defendant the benefit of a suspended sentence. Id. Three and a
half years later, the defendant was charged with another felony. Id. The defendant
was convicted and sentenced for that subsequent felony. Id. Additionally, when
the trial court entered judgment upon the subsequent felony, the court also found
that the defendant had forfeited the suspension of the sentence for the former
conviction, sentenced the defendant for that offense, and cumulated that sentence with the sentence imposed for the subsequent offense. Id. By way of a writ of
habeas corpus, the defendant challenged the revocation of his suspended sentence
for his first felony conviction because its term had expired prior to his commission
of the second felony. Id. Thus, a review of the facts in Coots makes it clear that the
use of a prior conviction for purposes of enhancement was not the issue before the
Court. Instead, in Coots, the Court of Criminal appeals was merely asked to decide
if a suspended sentence could be revoked after its term had expired. Id.
Although the finality of a probated sentence used for enhancement was not
the issue faced by the Court in Coots, the Court's opinion in Coots does explain
where the doctrine that a conviction wherein the sentence was suspended was not
final originated. In the opinion, the Court explained that Article 865c, Vernon's
Criminal Statutes, provided that where a suspended sentence was awarded,
"neither the verdict of conviction nor the judgment entered thereon shall become
final, except under the conditions and in the manner and at the time provided for
by section 4 of this Act." Id. at 173-74. Article 865d, Vernon's Criminal Statutes
further provided that:
When sentence is suspended the judgment of the court on that subject shall be that sentence of the judgment of conviction shall be suspended during the good behavior of the defendant. By the term 'good behavior' is meant that the defendant shall not be convicted of any felony during the time of such suspension. Id. at 174. Additionally, Section 4 of said act as referred to in Article 865c was
found set out in Article 865e, Vernon's Criminal Statutes. It provided that:
Upon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and upon the execution of a capias, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.
Id. Based on this statutory scheme, as cited by the Court in Coots, it becomes clear
that a conviction where the sentence was suspended was not a final conviction
because the legislature said so by way of a specific statute in Article 865c,
Vernon's Criminal Statutes. Basically, if a defendant was convicted of another
felony during the period of suspension, his suspended sentence was revoked and
he forfeited all benefits of such suspension. It was only then that his conviction
became "final." Id. at 173-74.
The State's "Suspended Sentence Law" cited by the Court in Coots was
enacted by the Legislature1 and unofficially codified as Articles 865b through 865i
of the 1911 Code. See Vernon's Criminal Statutes of Texas (1916). Throughout
the years, Articles 865b through 865i were revised and moved on a number of
1See Acts 1913, 33rd Leg., p. 8, ch. 7, available athttp://www.lrl.state.tx.us/LASDOCS/33R /SB5/SB5_33R.pdf#page=l .
7 occasions. Eventually, the "Suspended Sentence Law" became what is today
known as Article 42.12 of the Texas Code of Criminal Procedure. Through those
many revisions, the Legislature eventually dropped the language found in Article
865c which stated that "neither the verdict of conviction nor the judgment entered
This statute was first enacted by the Legislature in 1911. See, Acts 1911, 32nd Leg., p. 67, ch. 44. In that year, the fourth revision of our Code of Criminal Procedure was also passed, and consequently, the new law was not assigned an official place in the revised Code. In 1912, the Act was declared unconstitutional by this Court in Snodgrass v. State, 150 S.W. 162 (1912) and Snodgrass v. State, 150 S.W. 178 (1912). A substantially revised version was, therefore, reenacted a year later (Acts 1913, 33rd Leg., p. 8, ch. 7), and unofficially codified as Articles 865b through 865i of the 1911 Code. See Vernon's Criminal Statutes of Texas (1916). The constitutionality of this Act was upheld the same year in Baker v. State, 158 S.W. 998 (1913). When the Code of Criminal Procedure was again revised in 1925, the Legislature officially codified the "Suspended Sentence Law" as Articles 776 through 781, and authorized the new Code to be published under a separate cover with the revised Penal Code. See Acts 1925, 39th Leg., p. 282, ch. 104, available at http://www.lrl.state.tx.us/LASDOCS/39R/SB382/SB382 _39R.pdf#page=12 . Article 776a was added in 1931 (Acts 1931, 42nd Leg., p. 65, ch. 43, § 4, available at http://www.lrl.state.tx.us/LASDOCS/42R/SB53/SB53_42R.pdf#page=21) and Articles 777 and 779 were amended in 1941. See Acts 1941, 47th Leg., p. 1334, ch. 602, available at http://www.lrl.state.tx.us/LASDOCS/47R/SB 127/SB127_47R.pdf#page=l 3 .
In 1947, the first "Adult Probation and Parole Law" passed the Legislature, without repealing the "Suspended Sentence Law" (Acts 1947, 50th Leg., p. 1049, ch. 452, available at http://www.lrl.state.tx.us/LASDOCS/50R/HB120/HB120_50R.pdf#page=100), and was unofficially codified as Article 781b in Vernon's Texas Code of Criminal Procedure (1925). Section 17 of the Act was repealed in 1953. See Acts 1953, 53rd Leg., p. 489, ch. 175, § 2, available at http://www.lrl.state.tx.us/LASDOCS/53R/SB217/SB217_53R.pdf#page=ll). Four years later, the "Adult Probation and Parole Law of 1957" repealed and replaced the 1947 Act, as amended, but again expressly exempted from repeal the "Suspended Sentence Law." See Acts 1957, 55th Leg., p. 466, ch. 226, available at http://www.lrl.state.tx.us/LASDOCS/55R/SB154 /SB154_55R.pdf#page=119. This statute was then codified unofficially as Article 781d of Vernon's Texas Code of Criminal Procedure (1925). The Act was then further amended in 1959. See Acts 1959, 56th Leg., p. 1081, ch. 492, § 1, available at http://www.lrl.state.tx.us/LASDOCS /56R/HB581/HB581_56R.pdf#page=l 1 . Finally, as a part of the current revision of the Code of Criminal Procedure, the "Adult Probation and Parole Act of 1957," as amended, was officially codified as Art. 42.12 of the Code. See Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, available at http://www.lrl.state.tx.us/LASDOCS/59R/SB 107/SB107_59R.pdf#page=840 . Also at this time, the "Suspended Sentence Law" was deleted from the statutes by a general repealer section. Since 1965, Art. 42.12 has been amended by the Legislature more than 50 times.
8 thereon shall become final, except under the conditions and in the manner and at
the time provided for by section 4 of this Act."
It is a general rule of statutory construction that when the legislature amends
a particular statute and omits certain language of the former statute in its amended
version, the legislature specifically intended that the omitted portion is no longer
the law. Every word excluded from a statute must be presumed to have been
excluded for a reason. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). In
enacting an amendment the Legislature is presumed to have changed the law, and
a construction should be adopted that gives effect to the intended change, rather
than one that renders the amendment useless. Ex parte Trahan, 591 S.W.2d 837,
842 (Tex. Crim. App. 1979). However, although the statutory language providing
that a conviction wherein the sentence is suspended in not "final" has long been
omitted from the law, Texas Courts have stubbornly continued to hold that a
probated judgment is not "final" and, therefore, cannot be used for purposes of
enhancement.
An excellent discussion of the reasons why a probated conviction should
now be considered "final" was provided by Judge Teague in his dissenting opinion
in Ex parte Renter. 1987 Tex. Crim. App. LEXIS 742, *59-63, 734 S.W.2d 349 (Tex Crim. App. 1987) (Teague, J., dissenting). Judge Teague noted that, under
the "Suspended Sentence Law," this Court had "consistently held that there is no
appeal from a suspended sentence because it is not a final judgment from which an
appeal may be taken." Id. (citing Lamkin v. State, 138 Tex. Crim. 311, 136 S.W.2d
225 (1940)). Instead, a judgment became final and appealable only if and when
the suspended sentence was revoked. Judge Teague explained that this procedure
caused long delays between the trial of a cause and its appeal, subjecting the
ultimate validity of a conviction to direct review years after it had been entered,
and to considerable uncertainty during the interim. As a result, the Legislature
eventually acted to remove that uncertainty when the Adult Probation and Parole
Law, Art. 781b, Vernon's Texas Code of Criminal Procedure (1925), was enacted.
At that time, the Legislature expressly provided that a probationer could appeal his
conviction at the time he was placed on probation.
Subsequently, in Gossett v. State, this Court held that it was lawful for the
Legislature to provide for the appeal of a conviction prior to the pronouncement or
imposition of sentence. 282 S.W.2d 59 (Tex. Crim. App. 1955). Judge Teague
noted that, since that opinion, no probationer had been denied the right to appeal a
judgment of conviction against him upon the ground that such a conviction was
3Superseded by statute on other grounds as stated in Ex parte Ramirez, No. 08-13-00194-CR, 2014 Tex. App. LEXIS 499, at *5 (App.—El Paso Jan. 15, 2014).
10 not final until his probation had been revoked. Renter, 1987 Tex. Crim. App.
LEXIS 742 at *60-61. However, he also recognized that in a line of cases
beginning with Fetters v. State (1 S.W.2d 312, 313 (Tex. Crim. App. 1927)), this
Court had held that a defendant's punishment could not be enhanced with a prior
suspended sentence based upon the notion that an unappealable conviction was
not yet final. He explained that Article 42.12, Sec. 8(b), V.A.C.C.P., and
Tex.R.App.Proc. 41(b)(1), provided that a judgment of conviction was fully
complete in the trial court, and thus appealable, even if the imposition of sentence
had been suspended. Id. at *54-55. Therefore, unlike under the prior Suspended
Sentence Law, the judgment of conviction was not prevented from becoming
"final" in the sense contemplated by Fetters. He then stated, "[nevertheless, for
reasons not apparent on the face of our more recent opinions, we have continued
to cite Fetters for the long obsolete proposition that an ordinary probationer has
not yet been finally convicted." Id. at *63.
It is also notable that Texas is not the only state whose law has followed this
pattern of evolution. It appears that the laws of Pennsylvania followed a similar
progression. In Commonwealth ex rel. Trotter, v. Hendrick, the defendant argued
that the suspended sentence imposed for his earlier offense did not satisfy the strict
legal definition of the word "conviction" to make him subject to a greater penalty
as a second or subsequent offender. 177 A.2d 162, 163 (Pa. Super. 1962).
11 Addressing that argument, the Superior Court of Pennsylvania noted that although
at common law and in present day common parlance a person is considered
convicted when he enters a plea of guilt or a jury returns a guilty verdict, in many
cases - including cases where punishment is being increased due to a previous
conviction - something more is necessary to identify an accused as a convicted
offender. The Court recognized that the purpose served by requiring something
more than a plea of guilty or a verdict of guilty was to assure an accused a final
determination of his guilt before he was thereafter subjected to exceptional or
enhanced penalties based on such conviction. The Court also noted that earlier
decisions held that this could not be accomplished when the imposition of
sentence was suspended and the person placed on probation, because for many
years it was the practice to quash appeals taken from suspended sentences as they
were deemed to be interlocutory. However, in Commonwealth v. Elias, the
Supreme Court of Pennsylvania recognized that an accused whose trial resulted in
a suspended sentence and probation might never be able to establish his
innocence, however erroneous the verdict against him might be. 149 A.2d 53, 54-
55 (1959). As a result, the Supreme Court held that persons who had received a
suspended sentence and been placed on probation were also to be afforded a right
of appeal. Id. In Commonwealth ex rel. Trotter v. Hendrick, the Superior Court
explained that, after the decision in Commonwealth v. Elias, an accused was
12 entitled to have the propriety of his "conviction" determined without his probation
ever having been revoked. As a result, the Court concluded that the suspended
sentence imposed for the defendant's earlier offense had properly been used to
subject him to a greater penalty as a second or subsequent offender.
Commonwealth ex rel. Trotter v. Hendrick, ill A.2d 162, 163-164 (Pa. Super.
1962).
Purposes ofthe Penal Code Generally and Recidivism Statutes Specifically
The Texas Penal Code specifically provides that its provisions "are
intended, and shall be construed, to achieve the following objectives: (1) to insure
the public safety through: (A) the deterrent influence of the penalties hereinafter
provided; (B) the rehabilitation of those convicted of violations of this code; and
(C) such punishment as may be necessary to prevent likely recurrence of criminal
behavior." Tex. Penal Code § 1.02. The Texas Penal Code also provides that the
rule that a penal statute is to be strictly construed does not apply to it. Instead, it
specifically states that, "The provisions of this code shall be construed according
to the fair import of their terms, to promote justice and effect the objectives of the
code." Tex. Penal Code §1.05.
Under a recidivist statute, a sentence is "based not merely on that person's
most recent offense but also on the propensities he has demonstrated over a period 13 of time during which he has been convicted of and sentenced for other crimes."
Rummel v. Estelle, 445 U.S. 263, 284 (1980). A state with a recidivist statute is not
required to treat a defendant as if an offense was his first but is entitled to place
upon the defendant "the onus of one who is simply unable to bring his conduct
within the social norms prescribed by the criminal law of the State." Id. at 284.
"[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at
some point in the life of one who repeatedly commits criminal offenses serious
enough to be punished as felonies, to segregate that person from the rest of society
for an extended period of time." Id. Within the Texas Penal Code, there are several
recidivist statutes that provide for more harsh punishments for those who have
previously violated the law. See Tex. Penal Code §12.42 and §12.43. This Court
has specifically recognized that the legislative purpose behind §12.42 is to "punish
more harshly persons who repeatedly commit crime." Jordan v. State, 256 S.W.3d
286, 293 (Tex. Crim. App. 2008).
A defendant who has repeatedly committed felonies, pled or been found
guilty of committing those crimes, and been placed on community supervision has
certainly repeatedly committed crimes. The fact that such a defendant has been
given the benefit of suspended or probated sentences does nothing to change the
fact that they have chosen to repeatedly violate the law. Considering the objectives
of the Penal Code in general and our recidivist statutes specifically, it seems
14 obvious that requiring such a suspended or probated sentences to be revoked
before the defendant's convictions are considered "final" under §12.42 does not
further those objectives. It would "simply beg logic and common sense to say that
a person adjudicated guilty of an offense who is fined, ordered imprisoned, with
execution 'suspended'. .. has not been convicted" for purposes of forming a
predicate offense under the habitual offender statute. Whiteman v. State, 846 A.2d
239 (Del. 2004). Thus, a clear majority of the other states (and the federal system)
consider convictions wherein a defendant receives a suspended or probated
sentence to be "final" and allow for such convictions to be used to enhance the
penalties imposed for subsequent offenses.4
4See, e.g., Alabama {Johnson v. State, 398 So. 2d 393, 399 (Ala. Crim. App. 1981)), Alaska {Shaw v. State, 673 P.2d 781, 786 (Alaska App. 1983)), Arizona {State v. Robison, 408 P.2d 29 (1965)), Arkansas {Rolark v. State, 772 S.W.2d 588 (1989)), California {People v. Banks, 348 P.2d 102 (1959), People v. Balderas, 711 P.2d 480 (1985)), Delaware {Wehde v. State, 983 A.2d 82 (Del. 2009)), Florida {State v. Richardson, 915 So.2d 86 (Fla. 2005)), Georgia {Bennett v. State, 208 S.E.2d 181 (1974)), Hawai'i (Haw. Rev. Stat. Ann § 706-666 (West, Westlaw through 2017 1st S.S.) (commentary notes suspended sentence is immaterial)), Indiana (Ind. Code Ann. § 35-50-2-8 (West, Westlaw through 2017) (it appears probation does not preclude use of the Indiana "prior"conviction)), Iowa {State v. Ueding, 400 N.W.2d 550 (Iowa 1987)), Kansas {State v. Robertson, 592 P.2d 460, 463 (1979)), Kentucky {Winn v. Commonwealth, Ky., 303 S.W.2d 275 (1957)), Louisiana (La. Code Crim. Proc. Ann. art. 893 (West, Westlaw through 2017 S.E.S.), Michigan {People v. Funk, 33 N.W.2d 95 (1948); People v. Justice, 550 N.W.2d 562, 567 (1996)), Mississippi {Green v. State, 802 So.2d 181, 183 (Miss. Ct. App. 2001) (one of two enhancement statutes does not require actual incarceration); Davis v. State, 5 So.3d 435, 441 (Miss. Ct. App. 2008)), Missouri {State v. Whipple, 501 S.W.3d 507, 522 (Mo. Ct. App. 2016)), New Jersey {State v. McCall, 99 A.2d 153 (App. Div. 1953), reversed on another point, 103 A.2d 376 (1954); N.J. Stat. Ann. § 2C:44-4 (West, Westlaw through 2017)), New Mexico {State v. Larranaga, 424 P.2d 804, 805 (1967)), Oregon {State v. Glenn, 420 P.2d 60 (1966)), Pennsylvania {Com. ex rel. Trotter v. Hendrick, 177 A.2d 162, 164 (1962)), Rhode Island
15 ARGUMENTS
It is clear that the concept that a conviction followed by a suspended
sentence is not "final" and, therefore, unavailable to enhance or increase the
punishment for subsequent offenses is contrary to the basic purposes of recidivist
statutes. Furthermore, the statutory basis for concluding that a conviction with a
suspended sentence is not "final" was long ago removed by the Texas Legislature.
Although Texas Courts have long failed to recognize that significant change in the
law and continued to hold that a probated conviction is unavailable for purposes of
enhancement, "[t]he rule of stare decisis, has but little application in criminal
jurisprudence, and ought to have none when wrong and tending to overturn the
plainly written law. Adjudicated error persisted in cannot make truth of that error."
Cline v. State, 36 S.W. 1099, 1099 (Tex. Crim. App. 1896).
When the legislature amended the statutes governing suspended sentences
and omitted the language of the former statute stating that, "neither the verdict of
conviction nor the judgment entered thereon shall become final, except under the
conditions and in the manner and at the time provided for by section 4 of this Act"
{State v. Burke, 811 A.2d 1158, 1167 (R.I. 2002)), South Carolina {State v. Sosbee, 637 S.E.2d 571, 574 (Ct. App. 2006); State v. Spratt, 2013-UP-186, 2013 WL 8508095, at *1 (S.C. Ct. App. May 8, 2013) (not designated for publication)), South Dakota {Whitepipe v. Weber, 536 F.Supp.2d 1070, 1090 (D.S.D. 2007)), Washington {State v. Braithwaite, 600 P.2d 1260 (1979), overruled on other grounds, 670 P.2d 256 (1983); State v. Carlyle, 576 P.2d 408, 412-13 (1978)), Wisconsin (Wis. Stat. Ann. § 939.62(2) (West, Westlaw through 2017)); see also Federal System {Davis v. Estelle, 502 F.2d 523, 524 (5th Cir. 1974)).
16 in its amended version, the legislature specifically intended that the omitted
portion was no longer the law. Morrison v. Chan, 699 S.W.2d at 208. For these
reasons, this Court should hold that convictions with suspended or probated
sentences are "final" and may be used for purposes of enhancement.
PRAYER FOR RELIEF
For all the foregoing reasons, the State respectfully prays that this
Honorable Court grant rehearing in this matter, hold that pursuant to Texas law a
probated or suspended sentence is "final" for purposes of enhancement, and deny
relief to the Applicant.
Respectfully submitted,
Isi Sammy McCrary Sammy McCrary Chief Felony Prosecutor Comal County, Texas T.B.C No. 90001990 150 N. Seguin Ave., Suite 307 New Braunfels, Texas 78130 (830)221-1300 (830) 608-2008 (FAX) Email: mccras@co.comal.tx..us Attorney for the State
17 CERTIFICATE OF COMPLIANCE WITH RULE 9.4
I hereby certify that this document complies with the requirements of Tex.
R. App. Proc. 9.4(i)(2)(D) because there are 4,163 (a number less than 4,500)
words in this document, excluding the portions of the document excepted from the
word count under rule 9.4(i)(l), as calculated by the MS Word computer program
used to prepare it. The document was prepared in proportionally-spaced typeface
using Times New Roman 14 for text and Times New Roman 12 for footnotes.
/s/ Sammy McCrary Sammy McCrary Chief Felony Prosecutor Comal County, Texas
CERTIFICATE OF SERVICE
I hereby certify that on April 16l , 2018, a true and correct copy of the
foregoing Motion for Rehearing was delivered by electronic mail to:
John C. Moncure John.Moncure@tdcj .texas.gov P.O. Box 4005 Huntsville, TX 77342-4005 Fax:(512)406-5960 Attorney for Applicant
At the forgoing email address through efile.txcourts.gov.
/s/ Sammy McCrary Sammy McCrary Chief Felony Prosecutor Comal County, Texas