Ralph Garcia, Jr. v. State

Opinion

ACCEPTED 01-14-00954-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:43:57 PM CHRISTOPHER PRINE CLERK

NO. 01-14-00954-CR IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE HOUSTON, TEXAS FIRST DISTRICT OF TEXAS 9/11/2015 2:43:57 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

RALPH GARCIA, Appellant V. THE STATE OF TEXAS, Appellee

Appealed from the 405TH Judicial District Court of Galveston County, Texas Cause No. 12-CR-2430

BRIEF FOR THE STATE OF TEXAS

JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY

ALLISON LINDBLADE ASSISTANT CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY STATE BAR NO. 24062850 600 59TH STREET, SUITE 1001 GALVESTON, TX 77551 (409) 766-2355, FAX (409) 765-3261 allison.lindblade@co.galveston.tx.us ORAL ARGUMENT NOT REQUESTED

i IDENTITY OF PARTIES AND COUNSEL

Presiding Judge Hon. David Garner

Appellant Ralph Garcia

Appellee The State of Texas

Attorneys for Appellant Kendrick Ceasar – Trial

Joseph Salhab – Appeal

Attorneys for State T. Philip Washington – Trial

Allison Lindblade – Appeal

ii TABLE OF CONTENTS

Identity of Parties and Counsel ii

Table of Contents iii

Index of Authorities v

Summary of the Argument 1

Statement of Facts 2

Sole Issue 10 Whether an out-of-court statement is admissible as non- hearsay or as an exception to hearsay is within the trial court’s discretion. A trial court’s ruling will be upheld if it’s reasonably supported by the record and is correct under any theory of law.

How’s the Trial Court’s ruling to admit the statement wrong when the record supports admitting it as both as a hearsay exception admission against interest and as a nonhearsay prior consistent statement?

Argument and Authorities 10

Standard of Review and applicable law 11

Hearsay 12

The Trial Court found the statement was against Alvarez’s penal interest after hearing the State’s evidence 13

People don’t usually incriminate themselves unless it’s true 15

Alvarez made the blame sharing statement to Garcia’s cousin spontaneously without motive to gain favor 17

iii The Trial Court heard corroborating circumstances in the evidence that indicated Alvarez was being truthful in her statement to Clemente 20

Circumstantial evidence corroborated Alvarez’s custodial Statements to the police, Alvarez’s testimony, and Garcia’s guilt 24

The Trial Court could’ve admitted the statement as a nonhearsay prior consistent statement 27

Admitting the statement was harmless 30

Conclusion and Prayer 34

Certificate of Service 35

Certificate of Compliance 35

iv INDEX OF AUTHORITIES

CASES

Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) .........................17

Bingham v. State, 987 S.W.2d 54, 56 (Tex. Crim. App. 1999). ................. 15, 16, 21

Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). ................12

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ..............................31

Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ......................................................................................................................31

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) ................................12

Chaney v. State, 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 2009, no pet.) .........................................................................24

Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) ........................................................................................................ 31, 33

Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). ..............................12

Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). .....................................................................................................................31

Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) ......................... ...................................................................................................... 11, 14, 15, 20, 21

Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994) ....... 14, 15, 20, 21

Eby v. State, 165 S.W.3d 723, 735 (Tex. App.—San Antonio 2005, pet. ref'd). ........ ........................................................................................................................ 15, 26

Foxx v. State, 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston [14th Dist.] Oct. 21, 1999, pet. ref'd) ....................................................................17

v Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) ..............................31

Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007) ............................. ................................................................................................ 11, 12, 27, 28, 29, 30

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998) .............................31

Jones v. State, 13-00-087-CR, 2001 WL 1000994, at *2 (Tex. App.—Corpus Christi Mar. 29, 2001, no pet.) ..............................................................................32

Juarez v. State, 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, pet. ref'd) .........................................................................17

Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ................................31

Lester v. State, 120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.). ........... .................................................................................................................. 14, 15, 21

Mason v. State, 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015). ................... 14, 21

Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) ...................................31

Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). .....................................................................................................................30

Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, pet. ref'd) ...14

Rodriguez v. State, 07-09-0145-CR, 2010 WL 4628580, at *4 (Tex. App.— Amarillo Nov. 16, 2010, no pet.) ....................................................... 15, 21, 26, 27

Smith v. State, 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ......................................................................................................................31

Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) ....................................................................................................................28

United States v. Amerson, 185 F.3d 676, 691 (7th Cir.1999) ..................................21

vi United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991) ......................................28

Walter v. State, 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) ....................... .................................................................. 10, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24

Williams v. State, 14-11-01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d) ......................................................... 11, 12, 27, 28, 30

Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) ....................................................................................................................16

Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004)................................... ................................................................................................ 11, 16, 19, 21, 22, 23

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). ........................ 11, 12

RULES

TEX. R. APP. P. 33.1(a) .............................................................................................32

TEX. R. APP. P. 44.2(b) .............................................................................................30

TEX. R. EVID. 801(d). ...............................................................................................12

TEX. R. EVID. 801(e)(1)(B). .............................................................................. 11, 27

TEX. R. EVID. 802. ....................................................................................................12

TEX. R. EVID. 803(24). ...................................................................................... 12, 13

vii TO THE HONORABLE COURT OF APPEALS:

Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this brief for the State of Texas.

SUMMARY OF THE ARGUMENT

Ralph Garcia brings a single issue on appeal in order to reverse his murder

conviction. Garcia submits that he was substantially harmed by the admission of

the statement Garcia’s girlfriend, Sarah Alvarez, made to Garcia’s cousin, Officer

Clemente Garcia. The Trial Court admitted the statement as a statement against

penal interest. The record shows that the statement is admissible as both a

statement against penal interest and as a prior consistent statement.

The Trial Court determined that the statement, considering all the

circumstances, subjected Alvarez to criminal liability. The Trial Court heard

corroborating circumstances in the evidence that indicated Alvarez was being

truthful in her statement to Clemente. The record shows that defense counsel made

an express or implied charge of recent fabrication and improper motive during

Alvarez’s examination. State offered the statement Alvarez made to Clemente

because it was consistent with the testimony that Garcia attacked.

For all these reasons, the Trial Court did not err to admit Alvarez’s statement

to Clemente.

1 STATEMENT OF FACTS

Maxie Flowers was murdered on October 13, 2011.1 Ralph Garcia’s

girlfriend, Sarah Alvarez, testified that she had been with Garcia on the night

that Flowers was killed.2 Alvarez told the jury that she and Garcia returned to

Garcia’s house after dinner and a movie.3 Around 2 a.m., they walked down the

street to find some marijuana.4 Garcia and Alvarez went to a two-story house at

55th and Ave L, the “weed house”, owned by Christopher Taylor’s family.5

Ernest Wells, also known as Dirk, and Genie Boy, were standing on the upstairs

porch.6 Flowers was there, too.7 Garcia and Alvarez asked if they had any

marijuana.8 Flowers remarked to Garcia how pretty Alvarez was.9 Garcia just

stared at Flowers and didn’t say anything in return.10 Garcia and Alvarez didn’t

find any marijuana so they left and walked back home.11

Flowers also went down the street to Garcia’s house.12 Flowers stood with

his bike on Garcia’s property and wouldn’t leave.13 Alvarez testified that Garcia

1 R.R.V:21, 28. 2 R.R.V:156-157. 3 R.R.V:156-157. 4 R.R.V:18. 5 R.R.V:18, 158-159. 6 R.R.V:18, 158-159. 7 R.R.V:18, 158-159. 8 R.R.V:160. 9 R.R.V:18, 159. 10 R.R.V:159. 11 R.R.V:18. 12 R.R.V:18.

2 was angry that Flowers said Alvarez was pretty and because Flowers was at

Garcia’s house.14

Alvarez testified that she and Garcia went back in the house.15 They went

into Garcia’s room.16 Alvarez testified that she saw Garcia get a shotgun from

underneath his bed.17 Garcia told Alvarez that God put him on this Earth to do

his dirty work.18

Alvarez stated that she and Garcia got into Alvarez’s mother’s truck and

Garcia drove down the street to where Flowers was riding his bike.19 Alvarez

testified that Garcia stopped the truck, took the shotgun from his lap, pointed it

out the window and shot Flowers twice before they took off and headed back to

Garcia’s house.20

The shotgun made a loud blasting noise and woke up the resident in the

house next to where Flowers lay dying on the side of the street at 54th and Ave

L.21 The resident called 911.22

Dirk, Genie Boy, and Christopher Taylor were still standing on the

13 R.R.V:18, 158-159. 14 R.R.V:157-158. 15 R.R.V:18. 16 R.R.V:163. 17 R.R.V:156-157. 18 R.R.V:159. 19 R.R.V:157-158, 188. 20 R.R.V:188-190. 21 R.R.VII:171-172. 22 R.R.VII:171-172.

3 upstairs porch, which was about a half a block away from where Flowers was

murdered.23 When they heard the gunshots, they left in their car.24

Flowers was still alive when the first responders arrived.25 He was taken

to the hospital where he died of multiple gunshot wounds.26

The Police found a bicycle belonging to Flowers in the road.27 The Police

also found two 12-gauge shotgun shells and two shotgun wads in the road.28

Flowers was known as a low level member of the Crips gang.29 The

investigation revealed that Flowers had been involved in at least one fight with

the rival gang, the Bloods, the day before he was murdered.30 However,

Detective Gomez, the lead investigator, testified that he ruled out the rival gang

member suspects. 31

Detective Gomez testified that after he spoke to Dirk, his investigation

was focused on 55th street, the scene of the murder.32 Dirk knew the Garcia

family because he worked for them from time to time and spent Thanksgivings

23 R.R.VI:32, 35, 144-145; State’s Exhibit 1 and State’s Exhibit 5. 24 R.R.V:191. 25 R.R.VI:18, 221. 26 R.R.VI:18, 221. 27 R.R.V:91. 28 R.R.V:92; 166. 29 R.R.VI:18. 30 R.R.VI:22. 31 R.R.VI:24. 32 R.R.VI:32.

4 with them.33Although Dirk was a reluctant witness at trial, he admitted that he

was at the weed house on the night of the murder and that he saw Flowers riding

his bicycle.34

Detective Gomez testified that he executed a search warrant on Garcia’s

residence just a few months after the murder.35 The search uncovered shotgun

shells of the same caliber as those found at the scene.36 No gun was found.37 No

vehicle was found.38 Garcia was interviewed but he denied any involvement in

the murder.39

Detective Gomez testified that after he learned Alvarez was with Garcia

on the night of the murder, he contacted her.40 Initially, Alvarez told Garcia that

she didn’t know anything about the murder.41 Although Gomez attempted to

contact Alvarez again, she was unresponsive until she gave a recorded statement

at the police station on March 22, 2012.42 Gomez told the jury that he believed

Alvarez’s March 22nd statement was false.43

Clemente Garcia, a Galveston Police Officer, and Garcia’s cousin, knew 33 R.R.V:223-225; VIII:61-62. 34 R.R.V:223-231. 35 R.R.VI:98. 36 R.R.VI:99. 37 R.R.VI:152. 38 R.R.VI:113. 39 R.R.VI:38. 40 R.R.VI:48-49. 41 R.R.VI:48-49. 42 R.R.VI:51-52. 43 R.R.VI:51-52.

5 Garcia and Alvarez personally.44 Clemente testified that he saw Alvarez on

September 2, 2012, while he was on duty and that she appeared to be upset.45 He

also told the Trial Court that she appeared to be under the influence of alcohol or

drugs, and that she did not appear to have the normal use of her physical and

mental faculties.46 Alvarez testified that she had been drinking.47 Clemente told

the jury that even though Alvarez had an outstanding arrest warrant for public

intoxication, he was taking her home to her mother’s house.48

Clemente testified that he asked Alvarez what was wrong and if she was

involved in something.49 Clemente testified that Alvarez told him that she

couldn’t take it anymore.50 Clemente asked her what she meant.51 Alvarez

responded by saying “I am the key to the whole thing because I was there with

Ralphie. I could… I could be charged with murder, too.”52 Alvarez testified that

when she tried to tell Clemente about the murder, he told her she was being

recording so she tried to run.53 After Clemente called dispatch for help, Alvarez

44 RR.VVII:131-132. 45 RR.VVII:126. 46 RR.VVII:118-19. 47 R.R.V:168-169. 48 R.R.VII:112-113. 49 R.R.VII:112-113. 50 R.R.VII:112-113. 51 R.R.VII:112-113. 52 See State’s Exhibit 50. 53 R.R.V:169.

6 was found and arrested on a public intoxication warrant.54

While Alvarez was still in jail on a public intoxication warrant, she gave

another statement to Investigator Gomez.55 Detective Gomez testified that

Alvarez’s second statement matched the other details from his investigation.56

When Alvarez testified at trial, she admitted to the jury that her statements

to the police contradicted each other.57 Initially upon direct and cross-

examinations, Alvarez testified that she did not remember what happened on the

day of the murder, she was under the influence that night, and that everything

was a blur.58 Alvarez told the jury that she didn’t want to testify.59 Alvarez

explained that she was in a county jump suit because the sheriff arrested her in

order for her to comply with her trial subpoena to testify.60

After Alvarez was allowed to review her video statements, she told the

jury that her first statement wasn’t true and that her second statement was true.61

Alvarez also testified that she and Garcia broke up after the murder

around Thanksgiving of 2011.62 Alvarez told the jury that her relationship with

54 R.R.VI:54. 55 R.R.VI:54. 56 R.R.VI:54. 57 R.R.V:156-157. 58 R.R.V:5-6. 59 R.R.V:199. 60 R.R.V:6. 61 R.R.V:156-157. 62 R.R.V:175.

7 Garcia was abusive and that everybody knew how he beat her.63 Alvarez

testified that a few weeks before trial, Garcia started texting her again.64 Alvarez

messaged Garcia in return.65 Alvarez testified that the messages were friendly

and some of them sexual in nature.66 Alvarez testified that fear played a part of

communicating with Garcia.67 Alvarez told the jury that, although Garcia didn’t

outright ask her, she didn’t know what would happen if she didn’t keep her

mouth shut.68

Detective Gomez arrested Garcia for the murder of Flowers in September

2012.69 The jury found Garcia guilty of murder as charged in the indictment.70

Garcia was sentenced to 28 years’ imprisonment in the Texas Department of

Criminal Justice.71 This appeal followed.

63 R.R.V:200-201. 64 R.R.V:200-201. 65 R.R.V:200-201. 66 R.R.V:200-201. 67 R.R.V:200-201. 68 R.R.V:200-201. 69 C.R. 39-40. 70 C.R. 185-189. 71 C.R. 185-189.

8 SOLE ISSUE

Whether an out-of-court statement is admissible as non-hearsay or as an exception to hearsay is within the trial court’s discretion. A trial court’s ruling will be upheld if it’s reasonably supported by the record and is correct under any theory of law.

How’s the Trial Court’s ruling to admit the statement wrong when the record supports admitting it as both as a hearsay exception admission against interest and as a nonhearsay prior consistent statement?

ARGUMENT AND AUTHORITIES

Garcia’s sole issue contends that the Trial Court erred when it admitted a

statement of Garcia’s girlfriend, Sarah Alvarez, as an admission against interest.

Alvarez told Garcia’s cousin, Officer Clemente Garcia, “I am the key to the

whole thing because I was there with Ralphie. I could… I could be charged with

murder, too.”72 The Trial Court’s decision to admit this evidence wasn’t an

abuse of discretion because Alvarez believed that her role in the murder was

important enough that she could be charged with murder.73 In addition,

Alvarez’s statement was a blame-sharing statement and not a blame-shifting

statement.74 Where circumstances do not indicate motives to shift blame or curry

72 State’s Exhibit 50 (Clemente Garcia’s patrol car video/audio). 73 See Walter v. State, 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) (When the statement against interest was offered, it became the job of the trial court to determine whether the declarant was under the impression that the statement was against her interest at the time she made it.). 74 See Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004) (finding statement

9 favor, the statement is admissible.75

Moreover, the statement is admissible as a prior consistent statement.76

Alvarez testified and was cross-examined at trial; there was an accusation of

recent fabrication and improper motive; the State offered the statement to rebut

the challenged testimony; and the statement was made before Alvarez appeared

to have motive to lie.77 For all these reasons, the Trial Court did not err to admit

Alvarez’s statement to Clemente.78

Standard of review and applicable law

Whether an out-of-court statement is admissible under an exception to the

general hearsay exclusion rule is a matter within the trial court’s discretion.79 A

trial court’s decision to admit or exclude evidence of a statement against penal

interest is reviewed for an abuse of discretion.80 Similarly, a trial court’s

determination that a prior consistent statement is admissible is reviewed for an

abuse of discretion.81

The appellate court only determines whether the record supports the trial

trustworthy where declarant made it to friends without any motive to shift blame or minimize involvement). 75 Id. 76 See TEX. R. EVID. 801(e)(1)(B). 77 Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007); Williams v. State, 14-11- 01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d). 78 See Woods, 152 S.W.3d at 113. 79 Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). 80 Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) (en banc). 81 Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.

10 court’s ruling.82 The appellate court only reverses when “the trial judge’s

decision was so clearly wrong as to lie outside that zone within which

reasonable persons might disagree.”83 The 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.84

Hearsay

Hearsay is a statement, other than one made by the declarant while

testifying at trial, offered in evidence to prove the truth of the matter asserted.85

For hearsay to be admissible, it must fit into an exception provided by statute or

the Rules of Evidence.86 One exception to hearsay is a statement against

interest.87 A statement against interest is a statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and

(B) is supported by corroborating circumstances

82 Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). 83 Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)). 84 Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). 85 TEX. R. EVID. 801(d). 86 TEX. R. EVID. 802. 87 TEX. R. EVID. 803(24).

11 that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.88

The Trial Court found the statement was against Alvarez’s penal interest after

hearing the State’s evidence

Garcia argues this evidence wasn’t admissible as a statement against

interest under Texas Rule of Evidence 803(24). Here, it is important to note that

the statement was admitted during the final witness of the State; therefore, the

Trial Court had heard most, if not all, of the State’s evidence. Trial Court had

already heard evidence of relevant corroborating circumstances that supported

its ruling.

As stated above, a statement against interest in the criminal context is an

exception to the hearsay rule that tends to subject the declarant to criminal

liability.89 The rule sets out a two-step foundation requirement for

admissibility.90 First, the trial court must determine whether the statement,

considering all the circumstances, subjects the declarant to criminal liability and

whether the declarant realized this when he made the statement.91 Second, the

court must determine whether there are sufficient corroborating circumstances

88 Id. 89 TEX. R. EVID. 803(24); see also Walter, 267 S.W.3d at 890. 90 Walter, 267 S.W.3d at 890. 91 Id. at 890–91.

12 that clearly indicate the trustworthiness of the statement.92 Both statements that

are directly against the declarant’s interest and collateral “blame-sharing”

statements may be admissible under rule 803(24) if corroborating circumstances

clearly indicate their trustworthiness.93

Whether corroborating circumstances clearly indicate trustworthiness lies

within the sound discretion of the trial court. Appellate courts will conduct this

review by examining pertinent factors, favorable and unfavorable, which are

relevant to corroborating circumstances.94

The appellate court may consider positive and negative indicia of

trustworthiness in reviewing a trial court’s decision to admit or exclude a

hearsay statement against penal interest.95 However, the appellate court must be

“careful not to engage in a weighing of the credibility of the in-court witness.”96

“The overriding consideration is that the requirement of corroboration should be

utilized and construed in such a manner as to effectuate its purpose of

92 Id. at 891. 93 Id. at 896; see also Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, pet. ref'd); see also Mason v. State, 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015). 94 Cunningham, 877 S.W.2d at 310. 95 Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994); see also Lester v. State, 120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.). 96 Davis, 872 S.W.2d at 749; see also Lester, 120 S.W.3d at 901; Rodriguez v. State, 07-09- 0145-CR, 2010 WL 4628580, at *4 (Tex. App.—Amarillo Nov. 16, 2010, no pet.) (not designated for publication).

13 circumventing fabrication.”97

People don’t usually incriminate themselves unless it’s true

The Trial Court determined that the statement, considering all the

circumstances, subjected Alvarez to criminal liability.98 Garcia claims that

Alvarez’s statement was not self-inculpatory.99 The Trial Court found the

statement inculpating because Alvarez indirectly claimed that she was involved

in the murder.100

A reasonable person would not normally claim that he committed a crime,

unless it was true.101 The exception for statements against pecuniary, penal, or

social interest stems from the commonsense notion that people ordinarily do not

say things that are damaging to themselves unless they believe they are true.102

This is the guiding principle behind the Texas hearsay exception for statements

against penal interest found in Rule 803(24).103

Statements against penal interest fall into three general categories: Some

97 Cunningham, 877 S.W.2d at 312; Eby v. State, 165 S.W.3d 723, 735 (Tex. App.—San Antonio 2005, pet. ref'd). 98 See Walter, 267 S.W.3d at 890–91; see also R.R.V:120-121. 99 Garcia brief, p. 10. 100 See State’s Exhibit 50: “I could be charged with murder, too.” 101 Bingham v. State, 987 S.W.2d 54, 56 (Tex. Crim. App. 1999). 102 See Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (discussing the federal counterpart to the Texas exception for statements against penal interest and noting that “Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.”). 103 Bingham, 987 S.W.2d at 56.

14 inculpate only the declarant; others inculpate equally both the declarant and a

third party, such as a co-defendant; still others inculpate both the declarant and

third party, but also shift blame by minimizing the speaker’s culpability.104 A

confession, conversation or narrative, even a short one, might mix together all

three types of statements.105 Where circumstances do not indicate motives to

shift blame or curry favor, the statement may be admissible.106

Here, the statement equally inculpated Alvarez and Garcia. Garcia had not

been charged or arrested at the time Alvarez made the statement to Clemente.

Although indirectly, Alvarez’s statement indicated that she and Garcia were

together and could be charged with murder. Alvarez didn’t try to shift the blame

onto Garcia; instead, it could be interpreted that she made herself the decisive

factor in the murder.

Garcia argues that Alvarez’s statement amounts to no more than mere

presence which, alone, is not enough to criminally inculpate someone.107

Alvarez’s statement included more than mere presence. To the contrary, Alvarez

implies she could’ve been a participant.108 She said, “I could get charged with

104 Walter, 267 S.W.3d at 897-99. 105 Id. 106 Woods, 152 S.W.3d at 113. 107 Garcia’s Brief, p. 10-11. 108 See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (Mere presence alone at the scene of the offense will not support a conviction; however, it is a circumstance which, combined with other facts, may show that the defendant was a participant.); see also Foxx v.

15 murder, too.”109 Her actions show that she believed what she said. She testified

that when she knew she was being recorded, she ran.110

Alvarez made the blame-sharing statement to Garcia’s cousin spontaneously

without motive to gain favor

The night Alvarez made the statement to Clemente, Clemente was on duty

and responded to a disturbance about a couple arguing in a parking lot.111

Alvarez testified she’d been arguing with a male friend while drinking that

night, but that Clemente was there on a different call.112 Clemente testified that

when he saw Alvarez she was upset and crying.113 Alvarez testified that she had

been drinking.114 Clemente testified that although Alvarez had an outstanding

arrest warrant for public intoxication, he told the other officers that he knew

Alvarez and that he was going to take her home to her mother’s house.115

State, 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston [14th Dist.] Oct. 21, 1999, pet. ref'd) (not designated for publication). 109 State’s Exhibit 50; see Juarez v. State, 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, pet. ref'd) (not designated for publication) (Appellant's question to the declarant, in which he asked “how [she] would feel towards him if the police said that he had killed the two ladies,” satisfies the first inquiry under rule 803(24). Though hypothetical, the question was self-inculpatory and against appellant's self- interest.) 110 See Walter, 267 S.W.3d at 891, fn. 26 (“Whenever a statement against interest is offered, it is the job of the Trial Judge to determine whether the declarant was under the impression that the statement was against his interest at the time he made it.”). 111 R.R.VII:112-113. 112 R.R.V:168-169. 113 R.R.VII:112-113. 114 R.R.V:168-169. 115 R.R.VII:112-113.

16 Clemente testified that he asked Alvarez what was wrong and if she was

okay.116 Clemente testified that he asked Alvarez if she was involved in

something.117 Clemente testified that Alvarez told him that she couldn’t take it

anymore.118 Clemente asked her what she meant.119 Alvarez responded by

saying that she was the key to the whole thing.120 She was there with Ralph

Garcia.121 She could get charged with murder, too.122

At trial, Alvarez testified that she tried to tell Clemente about the murder

that night so he could help Garcia but when Clemente said his in-car video was

recording, she tried to run.123 Clemente testified that after Alvarez ran from his

vehicle, he called for backup because he didn’t know if she was going to be in

any danger.124

The record shows that Alvarez’s statement to Clemente was inculpatory

considering Alvarez implied she was involved in the murder, placed herself at

the scene of the murder, and when she found out her statement was being

recorded, she ran.125

116 R.R.VII:112-113. 117 R.R.VII:112-113. 118 R.R.VII:112-113. 119 R.R.VII:112-113. 120 See State’s Exhibit 50. 121 See State’s Exhibit 50. 122 See State’s Exhibit 50. 123 R.R.V:169. 124 R.R.VII:127-128. 125 See Walter, 267 S.W.3d at 890.

17 Alvarez’s flight from the police car suggests that Alvarez wasn’t

attempting to gain or curry favor by trying to implicate Garcia.126 To the

contrary, her flight, coupled with her statement, shows that Alvarez reasonably

believed that she could be charged with the murder. Alvarez’s statement was an

equal blame-sharing statement. Alvarez’s statement didn’t try to shift blame by

minimizing her culpability or try to implicate Garcia to a greater degree.127

It must be kept in mind that the basis of the statement against penal

interest exception is not that a declarant is in a general “trustworthy” frame of

mind.128 The probability of trustworthiness comes only from the statement being

self-inculpatory.129 The out-of-court statements from a co-defendant that are

against the declarant’s penal interest, but also inculpate the defendant, are

viewed with some suspicion.130 That suspicion is lessened when the speaker

makes no distinction between his conduct and that of the defendant—where

there is absolute equality.131 Although Alvarez was not charged as a co-

defendant, these principles support the trial court ruling because Alvarez’s

statement was an equal blame-sharing statement.

126 Woods, 152 S.W.3d at 113. 127 See Woods, 152 S.W.3d at 113; see also Walter, 267 S.W.3d at 897-99. 128 Walter, 267 S.W.3d at 897-99. 129 Id. 130 Id. 131 Id.

18 The Trial Court heard corroborating circumstances in the evidence that

indicated Alvarez was being truthful in her statement to Clemente

The Trial Court impliedly determined that there were sufficient

corroborating circumstances that clearly indicated the trustworthiness of the

statement.132 The determination of whether corroborating circumstances clearly

indicate trustworthiness lies within the trial court’s sound discretion.133

The corroborating circumstances must be sufficiently convincing to clearly indicate the trustworthiness of the statement. The focus of this inquiry is on verifying to the greatest extent possible the trustworthiness of the statement so as to avoid the admissibility of a fabrication.134

The structure of the rule and its wording demonstrate the obvious suspicion with which the drafters of the rule regarded a statement exposing the declarant to criminal liability, but exculpating the accused. The requirement of corroboration is therefore construed in such a manner as to effectuate its purpose of circumventing fabrication.135

While there is no definitive test to determine whether sufficient

corroborating circumstances exist, when analyzing the sufficiency of

corroborating circumstances, a number of factors are relevant: (1) whether the

guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether

132 Walter, 267 S.W.3d at 891. 133 Cunningham, 877 S.W.2d at 313. 134 Davis, 872 S.W.2d at 748–49 (internal quotations omitted). 135 Walter, 267 S.W.3d at 891; Lester, 120 S.W.3d at 901; see generally United States v. Amerson, 185 F.3d 676, 691 (7th Cir.1999) (Posner, C.J., dissenting) (discussing rationale for requiring corroboration).

19 the declarant was so situated that he might have committed the crime; (3) the

timing of the declaration; (4) the spontaneity of the declaration; (5) the

relationship between the declarant and the party to whom the statement was

made; and (6) the existence of independent corroborative facts.136 The trial court

may consider evidence which undermines the reliability of the statement as well

as evidence corroborating its trustworthiness.137 The first two factors logically

applies only when the defendant is the proponent of the statement against

interest that tends to exculpate the defendant.138

Here, several factors support a clear indication of trustworthiness. To

begin, Alvarez’s statement to Clemente was made while the investigation was

still pending nearly 11 months after the murder. Alvarez’s statement was

spontaneous and not the result of a custodial interview. The statement was made

to a familiar person that she believed she could confide it.

Alvarez made the statement to Garcia’s cousin, Clemente Garcia.139

Clemente, although also law enforcement, was someone she’d known personally

through her relationship with Garcia.140 Clemente testified that he treated Garcia

136 Woods, 152 S.W.3d at 113; Davis, 872 S.W.2d at 749; Rodriguez, 07-09-0145-CR, 2010 WL 4628580, at *3. 137 Cunningham, 877 S.W.2d at 312; see also Bingham, 987 S.W.2d at 58; Mason, 416 S.W.3d at 733-34. 138 Woods, 152 S.W.3d at 113. 139 R.R.VII:108. 140 R.R.VII:131-132.

20 like a son.141 Clemente testified that he’d come to know Alvarez through Garcia

while the two were dating.142 Clemente testified that he was somewhat close to

Alvarez, that they would talk, and Alvarez came to him for advice.143 Alvarez

called Clemente by his first name.144 In addition, Clemente testified that he

wasn’t involved in the murder investigation and that he hadn’t spoken to either

Alvarez or Garcia about it.145

Alvarez likely didn’t believe she was making a statement law enforcement

but confiding in someone that was close to the family. Therefore, she did not

have a motive to shift blame to Garcia.146 Statements to friends, loved ones, or

family members normally do not raise the same trustworthiness concerns as

those made to investigating officers because there the declarant has an obvious

motive to minimize his own role in a crime and shift the blame to others.147

Alvarez testified about seeing Clemente that night,

And him being Ralph’s -- you know, Ralph looking up to him and him looking up to Ralph at the same time, I thought that -- you know what I’m saying -- "Man, he needs to help this kid," you know? Like, that was the only person close to him that could really get to him.

141 R.R.VII:112-113. 142 R.R.VII:112-113. 143 R.R.VII:111. 144 R.R.VII:112-113. 145 R.R.VII:112-113. 146 See Walter, 267 S.W.3d at 897-99. 147 Id.

21 Q. Right. Did you tell Officer Garcia what happened?

A. I tried to, kind of sort of. Then he said they were recording. That’s when I tried to run.148

Because Alvarez was not being arrested, but escorted home, she did not

have a motive to curry favor.149 Clemente testimony established that Alvarez

made the statement spontaneously to him. The fact that this was a “street corner”

spontaneous conversation with Garcia’s uncle distinguishes this statement from

custodial statements to the police.150 Thus, the timing, spontaneity, and

relationship between the Alvarez and Clemente (the party to whom the

statement was made) tend to establish the reliability of the statement.151

Circumstantial evidence corroborated Alvarez’s custodial statements to the

police, Alvarez’s testimony, and Garcia’s guilt

Alvarez testified that she and Garcia went down the street to a two-story

house to find some marijuana.152 Alvarez testified that Ernest Wells, also known

as Dirk, and Genie Boy, were standing on the upstairs porch.153 Alvarez’s

testimony was corroborated when Taylor testified that Dirk and Genie Boy were

148 R.R.V:169. 149 R.R.V:169; see also Woods, 152 S.W.3d at 113. 150 See Walter, 267 S.W.3d at 897-99. 151 Chaney v. State, 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 2009, no pet.) (not designated for publication). 152 R.R.V:18. 153 R.R.V:18, 158-159.

22 with him at the house the night of the murder.154 Dirk testified to that he knew

Chris Taylor and Genie Boy.155 Dirk testified that he was at the weed house that

night with Genie Boy.156

Alvarez testified that she had been with Garcia on the night that Flowers was

killed.157 Alvarez told the jury that she and Garcia returned to Garcia’s house

after dinner and a movie.158 Further, Alvarez said she spent the night there after

the murder.159 Alvarez’s testimony was corroborated when Garcia’s mother

testified to the jury that Alvarez stayed at their house a lot.160 Garcia’s mother

did not provide an alibi for him for the night of the murder; instead, she told the

jury that Garcia could have left with Alvarez.161

Alvarez testified that Garcia shot Flowers twice before they took off in the

truck and headed back to Garcia’s house.162 Alvarez’s testimony was

corroborated when the detectives testified that there were 2 shotgun shells found

at the scene that were consistent with the shotgun shells found in Garcia’s

154 R.R.V:208. 155 R.R.V:221. 156 R.R.V:222. 157 R.R.V:156-157. 158 R.R.V:156-157. 159 R.R.V:188-190. 160 R.R.VIII:48. 161 R.R.VIII:59. 162 R.R.V:188-190.

23 bedroom.163 The medical examiner testified that the wounds on the body were

consistent with the shotgun blasts coming from the driver’s side window of a

vehicle.164 Christopher Taylor and a neighbor testified that they heard gun shots

and vehicle travel down the street after the gun shots.165 Garcia lived on the

same street where Flowers was found murdered.166

Alvarez testified that Flowers was riding his bike.167 Alvarez testified that

Flowers came to Garcia’s house on his bike.168 Alvarez’s testimony was

corroborated when Dirk testified that he saw Flowers ride his bike down the

street.169 The detectives testified that Flowers’s body was found near his

bicycle.170

Considering the relevant factors, it appears the corroborating evidence,

even in light of evidence tending to undermine the trustworthiness of Alvarez’s

statements, is sufficiently convincing to indicate trustworthiness.171

Here, the Trial Court was aware of the applicable rule of evidence, and of the

relevant standards for admitting and excluding a hearsay statement against penal

163 R.R.V:91; VI: 42, 96. 164 R.R.VI:216-217. 165 R.R.V:208-209; R.R.VIII:23-24. 166 R.R.VI:33; V:37, 86, 167 R.R.V:157-158, 188. 168 R.R.V:18, 158-159. 169 R.R.V:223. 170 R.R.V:91. 171 See Eby, 165 S.W.3d at 737.

24 interest. The Trial Court did not abused its discretion. The corroborating

circumstances surrounding Alvarez’s statement to Garcia’s uncle clearly

indicated the trustworthiness of the statement.172 Therefore, the Trial Court

properly admitted the statement because its determination that Alvarez’s

statement qualified as a Rule 803(24) statement against interest was within the

zone of reasonable disagreement.173

The Trial Court could’ve admitted the statement as a nonhearsay prior

consistent statement

During Alvarez’s testimony there was an express or implied charge of

recent fabrication and improper motive.174 The State offered the statement to

after Garcia implied Alvarez was lying.175 The statement was made before

Alvarez had a motive to lie.176

Rule 801(e)(1)(B) permits the substantive, non-hearsay admission of prior

consistent statements of a witness “offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive.”177

Four requirements must be met for prior consistent statements to be admissible:

(1) the declarant must testify at trial and be subject to cross-examination, (2)

172 See Rodriguez, 07-09-0145-CR, 2010 WL 4628580, at *5. 173 See id. 174 Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2. 175 Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2. 176 Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2. 177 Hammons, 239 S.W.3d at 804 (quoting TEX. R. EVID. 801(e)(1)(B)).

25 there must be an express or implied charge of recent fabrication or improper

influence or motive of the declarant’s testimony by the opponent, (3) the

proponent must offer a prior statement consistent with the declarant’s challenged

in-court testimony, and (4) the prior consistent statement must be made prior to

the time that the supposed motive to falsify arose.178

The Court of Criminal Appeals has emphasized that rule 801(e)(1)(B)

“sets forth a minimal foundation requirement of an implied or express charge of

fabrication or improper motive.”179 “‘[T]here need only be a suggestion that the

witness consciously altered his testimony in order to permit the use of earlier

statements that are generally consistent with the testimony at trial.’”180 The trial

court therefore possesses “substantial discretion to admit prior consistent

statements under the rule.”181

There is no bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court should determine whether the cross-examiner’s questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate.182

The defense opens the door to the admissibility of a prior consistent

statement by an express or implied suggestion that the witness is fabricating her

178 Id. (citing Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)). 179 Id. 180 Id. (quoting United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991)). 181 Id. at 804–05. 182 Id. at 805; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.

26 testimony in some relevant respect.183 In deciding that question, the trial court

must consider the totality of the cross-examination, not isolated portions or

selected questions and answers.184

Here, the four requirements are met. First, Alvarez testified and was

cross-examined. Second, during cross examination, Garcia implied that Alvarez

lied when she described the murder. Garcia expressly accused Alvarez of not

being credible because she was a jealous, scorned, drug-addicted, suicidal ex-

girlfriend.185 Third, the State offered the statement Alvarez made to Clemente

because it was consistent with the testimony that Garcia attacked.

Fourth, according to Garcia, Alvarez had a motive to lie or for revenge

since she stop dating Garcia. But the record shows that in her March 2012

statement to Gomez, months after her relationship with Garcia ended, she

refused to implicate him in the murder. When she spoke to Clemente in

September 2012, she implicated herself in addition to Garcia. Afterwards, she

made an addition statement to police where she stated Garcia shot Flowers. If

Alvarez’s motive was revenge all along she would’ve blamed Garcia for the

murder the first time she spoke to Detective Gomez or, at the very least, when

she talked to Clemente in the patrol car. But she didn’t.

183 Hammons, 239 S.W.3d at 804. 184 Id. 185 R.R.V:50, 57-58, 174-75.

27 Reviewing the record from the totality of the examinations, and giving

due deference to its assessment of tone, tenor, and demeanor, the Trial Court

reasonably could have found that defense counsel’s cross-examination suggested

that Alvarez’s testimony that Garcia was the murderer was a recent

fabrication—made during the trial—in light of her allegedly conflicting

custodial statements.186

Admitting the statement was harmless

Even if this Court were to assume that Alvarez’s statement to Clemente

constituted inadmissable hearsay, the admission of the statement was harmless

because the same or similar evidence was admitted at another point in the trial

without objection.187 The admission of inadmissible hearsay is nonconstitutional

error and will be considered harmless if, after examining the record as a whole,

the error did not affect appellant's substantial rights—i.e., did not have a

substantial and injurious effect or influence in determining the jury's verdict.188

Moreover, the improper admission of evidence is harmless if the same or similar

186 See Hammons, 239 S.W.3d at 808–09; Williams, 14-11-01068-CR, 2013 WL 84903, at *6. 187 See TEX. R. APP. P. 44.2(b); see also Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d). 188 Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998); Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

28 evidence is admitted without objection at another point in the trial.189

Alvarez testified as the first State’s witness and then again after she

reviewed her previous statements. Alvarez’s statement to Clemente came into

evidence during one of the last State witnesses. The statement didn’t tell the

jurors anything they hadn’t already heard from Alvarez’s testimony.

The statement Alvarez made to Clemente said that she was the key to the

murder, she was there with Garcia, and she could be charged for murder, too.

The jury already heard Alvarez testify that she was with Garcia on the night of

murder. The jury already heard Alvarez say that she was in the truck with Garcia

when he shot Flowers. Alvarez testified that the reason Garcia was upset was

because Flowers commented on how pretty Alvarez was and then came down

the street to Garcia’s house. The jury already heard Alvarez testify about her

personal feelings toward the murder, how it really upset her, and how she was

reluctant to come forward as a witness. There was nothing in that statement that

the jury hadn’t already heard in the testimony.

Garcia claims he was harmed by the admission of the statement and the

189 See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); see also Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); see also Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.— Houston [14th Dist.] 2004, pet. ref'd); see also Smith v. State, 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).

29 State’s use of the statement during closing arguments.190 Garcia argues that the

statement was used to bolster the credibility of Alvarez. However, Garcia’s

bolstering argument should not be considered as it was not preserved because he

did not object on that basis.191 Additionally, if Garcia was concerned that the

statement affected Alvarez’s credibility in front of the jury, Garcia could have

called Alvarez as a rebuttal witness to attempt to impeach her about her

statements to Officer Clemente.192

Nonetheless, admitting Alvarez’s statement to Clemente into evidence

was cumulative and did not tell the jury anything that wasn’t already in

evidence; therefore, the statement didn’t have a substantial or injurious effect on

the verdict.

After examining the record, this Court may be reasonably assured that any

possible improper admission of Alvarez’s statement to Clemente did not

influence the jury verdict, or only had but a slight effect, because the same or

similar evidence was admitted without objection elsewhere at trial.193

Garcia’s sole issue should be overruled and the Trial Court’s ruling

upheld.

190 Garcia brief, p. 15-16. 191 See TEX. R. APP. P. 33.1(a); see also Jones v. State, 13-00-087-CR, 2001 WL 1000994, at *2 (Tex. App.—Corpus Christi Mar. 29, 2001, no pet.) (not designated for publication). 192 R.R.VII:124-125 193 See Chapman, 150 S.W.3d at 814.

30 CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays that the

judgment of the Trial Court be affirmed in all respects.

Respectfully submitted,

JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS

/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney State Bar Number 24062850 600 59th Street, Suite 1001 Galveston, Texas 77551 Tel (409)766-2452/Fax (409)765-3261 allison.lindblade@co.galveston.tx.us

31 CERTIFICATE OF SERVICE

The undersigned Attorney for the State certifies a copy of the foregoing

brief was sent via email, eFile service, or certified mail, return receipt requested, to

Joseph Salhab, 2018 Buffalo Terrace, Houston, Texas 77019,

josephsalhab@mindspring.com, on September 11, 2015.

/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas

CERTIFICATE OF COMPLIANCE

The undersigned Attorney for the State certifies this brief complies with Tex.

R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 6,492

words.

/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas