ACCEPTED 13-15-00178-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 6/11/2015 9:03:55 AM CECILE FOY GSANGER CLERK
#13-15-00178-CR FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS Thirteenth Court of Appeals, Corpus 6/11/2015 Christi 9:03:55 AM & Edinburg CECILE FOY GSANGER Clerk
THE STATE OF TEXAS, Appellant
v.
ISMAEL SERDA, Appellee
ON STATE’S APPEAL FROM THE 28TH DISTRICT COURT OF NUECES COUNTY, CAUSE #13-CR-1027-A
STATE’S BRIEF A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas, District Attorney for the 105th Judicial District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney Chris Morrell, Asst. Dist. Atty. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401
Appellee: Ismael Serda, represented by
Travis W. Berry P.O. Box 6333 Corpus Christi, TX 78401
Trial Counsel:
Kenneth G. Botary 615 Leopard St. Ste. 836 Corpus Christi, TX 78401
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii INDEX OF AUTHORITIES ................................................................................... v STATEMENT OF THE CASE ............................................................................. vii ISSUE PRESENTED ............................................................................................ viii Whether the trial court erred by granting Serda’s motion to suppress evidence ................................................................................... viii A. Did the trial court properly conclude that reasonable suspicion was lacking in the face of the unanimous, uncontroverted evidence that Serda was speeding while being followed by Texas DPS Agent Eric Walters ...................... viii B. Did Serda’s explanation for his admitted speeding negate reasonable suspicion? ...................................................................... viii C. Was reasonable suspicion even necessary in light of the trial court’s finding that Serda did not realize he was being pursued by law enforcement when he brought his vehicle to a stop? ............................................................................................ viii STATEMENT OF FACTS .......................................................................................1 The traffic encounter and felony DWI charge ..............................................1 Serda admitted in his motion to suppress that he was speeding ..............1 Serda testified that he was speeding while being followed by Texas DPS Agent Walters, and Serda’s trial counsel argued Serda was speeding ....................................................................................1 The trial court found no reasonable suspicion to stop Serda, granted his motion to suppress, and refused to make any findings on his admitted speeding ..........................................................2 SUMMARY OF THE ARGUMENT ......................................................................3 ARGUMENT ............................................................................................................5 iii The trial court erred by granting Defendant Serda’s motion to suppress........................................................................................................5 1. The trial court found no reasonable suspicion by disregarding the collective knowledge of the cooperating officers ....................................................................................................5 1.a General Legal Standards ...............................................................5 1.b The legal standards applicable to reasonable suspicion should have required the trial court to consider the collective knowledge of the cooperating officers ......................8 1.b The undisputed evidence showed that the cooperating officers had reason to suspect that Serda was speeding ..........8 2. The trial court wrongly found no reasonable suspicion by weighing the relative innocence or guilt of Serda’s conduct .......10 2.a The legal standards should have required the trial court to examine only the relative degree of suspicion arising from Serda’s conduct through the prism of the reasonable officer..........................................................................11 2.b The trial court, in effect, found a "paranoid speeding drunk" defense to reasonable suspicion ...................................12 3. The trial court’s findings show that the traffic stop was a consensual encounter requiring no reasonable suspicion ...........13 3.a The legal standards recognize that some police-citizen encounters need not be supported by reasonable suspicion or probable cause ........................................................13 3.b No detention occurs when a person pulls over without believing he is yielding to a law enforcement officer .............15 PRAYER ..................................................................................................................15 CERTIFICATE OF COMPLIANCE ....................................................................16 CERTIFICATE OF SERVICE ...............................................................................16
iv INDEX OF AUTHORITIES
Cases Allen v. State, 13-13-00188-CR, 2014 WL 4402135 (Tex. App.—Corpus Christi Sept. 4, 2014, no pet.) .....................................................................14 Berkemer v. McCarty, 468 U.S. 420 (1984) ...........................................................6 Bland v. Texas Dep’t of Pub. Safety, No. 14-12-01057-CV, 2013 WL 3868447, (Tex. App.—Houston [14th Dist.] July 23, 2013, pet denied) ..........................................................................................................12 Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) ...... 6, 9, 11, 12 Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977) .....................................7 Fonseca v. State, 881 S.W.2d 144 (Tex. App.—Corpus Christi 1994, no pet.) .................................................................................................................8 Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) ................................7 Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App. 1987) ..................................8, 9 In re J.M., 995 S.W.2d 838 (Tex. App.—Austin 1999, no pet.) ........................11 Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011)................................8 McVickers v. State, 874 S.W.2d 682 (Tex. Crim. App. 1993) .........................7, 9 Power v. State, No. 13-05-693-CR, 2006 WL 2516525 (Tex. App.— Corpus Christi July 27, 2006, no pet.) ........................................................7 Praska v. State, 557 S.W.2d 83 (Tex. Crim. App. 1977) ............................. 11, 12 Scardino v. State, 294 S.W.3d 401 (Tex. App.—Corpus Christi 2009, no pet.) .................................................................................................................6 State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................6 State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................6 Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL 34230967 (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) ...............8
v United States v. Mendenhall, 446 U.S. 544 (1980) ............................................14 Valencia v. State, 820 S.W.2d 397 (Tex.App.—Houston [14th Dist.] 1991, pet. ref’d) ..............................................................................................7 Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) ............................ 14, 15 Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) ...................................11
vi STATEMENT OF THE CASE
Nature of the Case A grand jury indicted Defendant Ismael Serda for felony Driving While Intoxicated. CR 5.
Course of Proceedings On February 25, 2015, Serda filed his Motion to Suppress Evidence. CR 30-32. On March 4, the trial court heard Serda’s motion to suppress. RR 2:1.
Trial Court’s Disposition On March 5, 2015, the trial court granted Serda’s motion to suppress. CR 34.
vii ISSUE PRESENTED
Whether the trial court erred by granting Serda’s motion to suppress evidence.
A. Did the trial court properly conclude that reasonable suspicion was lacking in the face of the unanimous, uncontroverted evidence that Serda was speeding while being followed by Texas DPS Agent Eric Walters?
B. Did Serda’s explanation for his admitted speeding negate reasonable suspicion?
C. Was reasonable suspicion even necessary in light of the trial court’s finding that Serda did not realize he was being pursued by law enforcement when he brought his vehicle to a stop?
viii STATEMENT OF FACTS
The traffic encounter and felony DWI charge.
Corpus Christi Police Department Officer Alexandria Castro was on
patrol when she received a dispatch to assist DPS Narcotics Agent Eric
Walters, who was in an unmarked pickup truck following Defendant
Serda. Supp. CR 17 (Findings ##1, 2). The ensuing traffic encounter led to
Serda’s arrest and grand jury indictment for felony Driving While
Intoxicated. CR 5.
Serda admitted in his motion to suppress that he was speeding.
On February 25, 2015, Serda filed his Motion to Suppress Evidence.
CR 30-32. The motion, while admitting Serda reached speeds of “80-100
miles per hour,” claimed that he thought he needed to evade another
driver who appeared to be “in a state of road rage.” CR 30.
Serda testified that he was speeding while being followed by Texas DPS Agent Walters, and Serda’s trial counsel argued Serda was speeding.
On March 4, 2015, the trial court heard Serda’s motion to suppress.
RR 2:1. At the suppression hearing, Serda limited his challenge to the
existence of reasonable suspicion for the traffic stop that led to his DWI
1 arrest. RR 2:52. Serda testified that he was speeding while DPS Agent
Walters pursued him—
[Prosecutor] . . . Is it a fair statement to say that you were speeding to try to get away from the vehicle that way following you? [Serda]: Entirely. Q: Okay. So you are speeding? A: To try to get away from the vehicle that was chasing me.
RR 2:45-46. Serda’s trial counsel agreed that “[Serda] was speeding to try
to avoid contact with whoever was chasing him because he was afraid.”
RR 2:49.
Also at the hearing, Officer Castro testified that she was dispatched
to try intercept Walters and Serda’s vehicles because Serda was suspected
of speeding, being intoxicated, and driving recklessly. RR 2:6, 12, 35-36.
The trial court found no reasonable suspicion to stop Serda, granted his motion to suppress, and refused to make any findings on his admitted speeding.
On March 5, 2015, the trial court granted Serda’s motion to suppress.
CR 34. Upon the State’s timely request (CR 30), the trial judge entered
findings of fact and conclusions of law (Supp. CR 17). The trial court based
its conclusion of no reasonable suspicion on its finding that Officer Castro
2 never witnessed Serda commit any traffic violations. Supp. CR 17-18
(Findings ##8, 9; Conclusion #2).
Officer Castro could not observe Serda’s driving before he pulled
over because Serda did so before Officer Castro could catch up to and get
behind his vehicle. Supp. CR 17 (Finding #7). Because Officer Castro had
not yet caught up to Serda, he did not realize that he was being followed
by any law enforcement authorities when he stopped his vehicle. Supp. CR
17 (Finding #3).
The State requested additional findings concerning Serda’s testimony
that he was speeding and what Officer Castro heard from dispatch. Supp.
CR 19. The trial court refused on the basis that DPS Agent Walters did not
testify at the hearing. Supp. CR 25. This Court denied the State’s motion to
abate and remand for additional findings.
SUMMARY OF THE ARGUMENT
Reasonable suspicion depends on the knowledge of the cooperating
officers—here—DPS Agent Walters, Officer Castro, and the police
dispatcher. It is undisputed that Serda was speeding while being followed
3 by DPS Agent Walters in an unmarked vehicle and that CCPD Officer
Castro was dispatched to help him stop Serda. This evidence is
undisputed because Serda admitted it in his motion to suppress and on the
stand during the suppression hearing, and Officer Castro testified that she
was dispatched to assist DPS Agent Walters due to, among other reasons,
speeding by Serda. The trial court’s legal conclusion that reasonable
suspicion was lacking because Officer Castro did not witness Serda’s
speeding is wrong and should be reversed by this Court.
Furthermore, Serda’s motion to suppress admitted that he was
speeding yet sought suppression because he mistakenly thought he was
being chased by an unknown driver instead of DPS Agent Walters.
However, Serda’s subjective thoughts are not part of the reasonable
suspicion analysis. That is because reasonable suspicion depends on the
degree of suspicion that attaches to the circumstances facing the officers—
not the relative guilt or innocence of those circumstances. Thus, regardless
why he was speeding, Serda’s admitted speeding over several miles while
4 being followed by DPS Agent Walters provided reasonable suspicion to
stop him.
Finally, the trial court made no findings concerning which law
enforcement officer supposedly stopped Serda. It could not because the
trial judge found that Serda brought his vehicle to a stop before he knew
that law enforcement was pursuing him. Thus, Serda did not stop due to
any show of authority. As a result, his initial encounter with police was
consensual and need not have been supported by reasonable suspicion.
Thus, had reasonable suspicion been lacking, the trial court’s granting of
Serda’s motion to suppress would still be wrong and deserving of reversal.
ARGUMENT
The trial court erred by granting Defendant Serda’s motion to suppress.
1. The trial court found no reasonable suspicion by disregarding the collective knowledge of the cooperating officers.
1.a General Legal Standards
In reviewing a trial court’s ruling on a motion to suppress, appellate
courts employ a bifurcated standard, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact
5 that rely upon the credibility of a witness, but applying a de novo standard
of review to pure questions of law and mixed questions that do not depend
on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273
(Tex. Crim. App. 2013). When a trial court makes explicit fact findings, the
appellate court determines whether the evidence (viewed in the light most
favorable to the trial court’s ruling) supports these fact findings. State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). “Whether the facts
known to the officer at the time of the detention amount to reasonable
suspicion is a mixed question of law that is reviewed de novo on appeal.”
Kerwick, 393 S.W.3d at 273.
“A warrantless automobile stop is a Fourth Amendment seizure
analogous to a temporary detention, and it must be justified by reasonable
suspicion.” Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus
Christi 2009, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).
A police officer has reasonable suspicion for a detention if he has specific,
articulable facts that, when combined with rational inferences from those
facts, would lead the officer to reasonably conclude that the person
6 detained is, has been, or soon will be engaged in criminal activity.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This
standard is an objective one that disregards the subjective intent of the
arresting officer and looks, instead, to whether there was an objectively
justifiable basis for the detention. Ibid.
It is generally accepted that law enforcement officers may lawfully
stop a motorist who commits a traffic violation. McVickers v. State, 874
S.W.2d 682, 664 (Tex. Crim. App. 1993), superseded by statute on other
grounds as stated in Granados v. State, 85 S.W.3d 217, 227-30 (Tex. Crim. App.
2002); see also Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2 (Tex.
App.—Corpus Christi July 27, 2006, no pet.) (citing McVickers; not
designated for publication). In stopping vehicles for an investigative
detention based on a traffic violation, the State need not prove that the
detainee actually committed a traffic violation. Drago v. State, 553 S.W.2d
375, 377 (Tex. Crim. App. 1977). Reasonable suspicion to believe that a
violation occurred or is occurring will suffice. Ibid.; Valencia v. State, 820
S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); see also
7 Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL 34230967,
at *3 (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) (citing Valencia; not
designated for publication).
1.b The legal standards applicable to reasonable suspicion should have required the trial court to consider the collective knowledge of the cooperating officers.
When officers cooperate, a court must consider their cumulative
information in determining whether reasonable suspicion exists at the time
of the stop. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987), cited
with approval in Fonseca v. State, 881 S.W.2d 144, 150 (Tex. App.—Corpus
Christi 1994, no pet.). A police dispatcher is considered a cooperating
officer. Martinez v. State, 348 S.W.3d 919, 924 (Tex. Crim. App. 2011)
(construing Derichsweiler).
1.b The undisputed evidence showed that the cooperating officers had reason to suspect that Serda was speeding.
The trial court based its ruling on the fact that Officer Castro, who
was dispatched to help DPS Agent Walters stop Serda, did not see Serda
commit any traffic violations. Supp. CR 17-18 (Findings ##7, 8; Conclusion
8 #2). However, the undisputed evidence before the trial court1 showed that
Serda was speeding when being followed by DPS Agent Walters—
Serda’s motion to suppress admitted he drove 80-100 miles per hour while being followed by DPS Agent Walters. CR 30.
Serda testified at the suppression hearing that he was speeding over a distance of about 10 miles in an attempt to discern whether the vehicle driven by DPS Agent Walters was following him and to evade it. RR 2:40-41, 45-46.
Serda’s counsel argued that he was speeding to evade Walters’s vehicle. RR 2:49.
Officer Castro testified that she was dispatched to help DPS Agent Walters stop Castro for, among other reasons, speeding. RR 2:6.
The unanimous, uncontroverted evidence that Serda was speeding over
several miles while being followed by DPS Agent Walters—relayed to
dispatch and Officer Castro—provided reasonable suspicion to stop Serda.
McVickers, 874 S.W.2d at 664; Hoag, 728 S.W.2d at 380; Derichsweiler, 348
S.W.3d at 914-15.2
1 Even before this Court, Serda continues to admit his speeding. Appellee’s Objection to State’s Motion to Abate and Remand at 1 (“[DPS Narcotics Agent Walters] chased appellee at very high speeds . . . .”). 2 The State acknowledges, as it stated above concerning the general legal standards, that a trial court’s findings of historical fact are entitled to almost total 9 2. The trial court wrongly found no reasonable suspicion by weighing the relative innocence or guilt of Serda’s conduct.
Serda boldly challenged reasonable suspicion to stop him while
admitting that he was speeding. CR 30; RR 2:40-41, 45-46. He premised
that position on the theory that his speeding was “innocent” because he
thought he was being chased by an unknown driver. RR 2:51 (“My client
said he was trying to avoid contact with someone that was chasing him,
and I think he was driving at a reasonable speed . . . to do just that.”); but
see RR 2:41-42 (admitting he could think of no reason that someone would
chase him).
deference. Here, however, the trial court made no findings on Serda’s speeding and the reason for Officer Castro’s dispatch (which included speeding). Thus, the trial court presumably felt that Serda’s speeding in DPS Agent Walters’s presence was irrelevant to its ruling, which is an erroneous legal conclusion under McVickers and Hoag. Further, had he trial court found that Serda was not speeding, it would have exceeded the deference that it enjoys when finding historical facts. Not only was the evidence uncontroverted and unanimous, Serda’s speeding was an integral part of his story that he thought he had to break the law to determine whether he was being followed and then to evade the pursuing driver. RR 2:40-41, 45-46. The trial court believed the story (Supp. CR 17 [Findings ##3, 4], 25) and would have had no basis to reject the essential subpart that Serda exceeded the speed limit when being followed by DPS Agent Walters. 10 2.a The legal standards should have required the trial court to examine only the relative degree of suspicion arising from Serda’s conduct through the prism of the reasonable officer.
Reasonable suspicion depends on whether the articulable facts would
lead a reasonable officer to conclude that a person is, has been, or soon will
be engaged in criminal activity. E.g., Derichsweiler, 348 S.W.3d at 914.
“[T]he relevant inquiry is not whether particular conduct is innocent or
criminal, but the degree of suspicion that attaches to particular non-
criminal acts.” Id. (quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.
App. 1997)). A defense to a traffic infraction does not negate reasonable
suspicion to detain arising from the infraction. Praska v. State, 557 S.W.2d
83, 85-86 (Tex. Crim. App. 1977) (“The fact that appellant may have used a
hand signal which Officer Alexander could not see from his vantage point
is certainly a defense to the charge that he committed the traffic offense,
but it just as certainly would not negate the officer’s justification for
stopping appellant’s vehicle in the first place.”); see also In re J.M., 995
S.W.2d 838, 843 n.7 (Tex. App.—Austin 1999, no pet.) (“The fact that an
11 arrestee may offer exculpatory evidence to an officer that may later support
a defense to criminal activity does not eliminate probable cause to arrest.”).
2.b The trial court, in effect, found a “paranoid speeding drunk” defense to reasonable suspicion.
Serda’s motion to suppress presented the issue of justifying his
admitted speeding based on his paranoia of being chased by an unknown
driver. But what Serda subjectively believed is not part of a reasonable
suspicion analysis because (1) a suspect’s thoughts are unknown to the
officer; and (2) whether a suspect has a defense to speeding does not negate
reasonable suspicion arising from speeding itself. Derichsweiler, 348 S.W.3d
at 914; Praska, 557 S.W.2d at 85-86; see also Bland v. Texas Dep’t of Pub. Safety,
No. 14-12-01057-CV, 2013 WL 3868447, at *4 (Tex. App.—Houston [14th
Dist.] July 23, 2013, pet denied) (“Even if a fact finder later might determine
that Bland’s speed was reasonable and prudent, that Bland was exceeding
the posted speed limit supports the officer’s reasonable suspicion that
Bland had committed a traffic violation.”; not designated for publication).
Thus, regardless whether the trial judge thought that a paranoid drunk
12 might be justified in speeding away from an officer in an unmarked
vehicle, that speeding provides reasonable suspicion to stop him.
3. The trial court’s findings show that the traffic stop was a consensual encounter requiring no reasonable suspicion.
The trial court found—
Before Defendant brought his vehicle to a stop, Defendant did not know that he was being followed by any police officers or agents or any authorities; he thought he was being chased by an unknown person.
Supp. CR 17 (Finding #3).
3.a The legal standards recognize that some police-citizen encounters need not be supported by reasonable suspicion or probable cause.
There are three types of legally-recognized police citizen
interactions—
(1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures.
13 Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) (footnotes
omitted); see also Allen v. State, 13-13-00188-CR, 2014 WL 4402135, at *2-4
(Tex. App.—Corpus Christi Sept. 4, 2014, no pet.) (discussing Wade; not
No bright-line rule governs when a consensual encounter becomes a
detention. Wade, at 667. Similar to probable cause, courts must take into
account “the totality of the circumstances of the interaction to decide
whether a reasonable person would have felt free to ignore the police
officer’s request or terminate the consensual encounter.” Ibid. This is the
Mendenhall test. Id. at 667-68 (citing United States v. Mendenhall, 446 U.S.
544, 554 (1980)). If ignoring the request or terminating the encounter is an
option, then no Fourth Amendment seizure has occurred. Wade, at 668.
But, if an officer through force or a show of authority succeeds in
restraining a citizen in his liberty, the encounter is no longer consensual; it
is a Fourth Amendment detention or arrest, subject to Fourth Amendment
scrutiny. Ibid. The question of whether the particular facts show that a
14 consensual encounter has evolved into a detention is a legal issue that is
reviewed de novo. Ibid.
3.b No detention occurs when a person pulls over without believing he is yielding to a law enforcement officer.
A reasonable driver who believes he is being followed by a fellow
citizen on the highway would not feel burdened by any decision as to
whether to heed a police officer’s request and would feel free to continue
on his way. Wade, 422 S.W.3d at 667-68. That Serda—enjoying “a pretty
high BAC” (RR 2:20-21) and stopping to “get into a fight with somebody”
(RR 2:42)—might have felt otherwise does not affect the analysis. Thus,
Serda’s initial encounter with police was consensual and need not have
been supported by reasonable suspicion. Wade, at 667.
PRAYER
For these reasons, the State requests that the Court reverse the trial
court order granting Serda’s motion to suppress, remand for further
proceedings, and grant the State all other proper relief.
15 Respectfully Submitted,
/s/ A. Cliff Gordon A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to prepare this document, it contains 4,000 words.
CERTIFICATE OF SERVICE
On June 11, 2015, a true copy of the foregoing was served via eServe on the following:
Mr. Travis W. Berry P.O. Box 6333 Corpus Christi, TX 78401 via email: travisberrylaw@gmail.com Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________ A. Cliff Gordon