ACCEPTED 01-15-00609-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 12/29/2015 10:42:33 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00609-CR
IN THE COURT OF APPEALS FILED IN FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS 12/29/2015 10:42:33 AM CHRISTOPHER A. PRINE VICTOR ANTONIO SANCHEZ Clerk
Appellant
v.
THE STATE OF TEXAS Appellee
On Appeal from Cause Number 1458825 From the 230thDistrict Court of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas
MELISSA MARTIN Assistant Public Defender Harris County, Texas TBN. 24002532 1201 Franklin, 13th floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 437-4319
COUNSEL FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Victor Antonio Sanchez TDCJ # 02005365 Luther Unit, TDCJ 1800 Luther Dr Navasota, TX 77868
TRIAL PROSECUTORS: Alison Baimbridge Assistant District Attorney Harris County, Texas 1201 Franklin St 6th Floor Houston, TX 77002
DEFENSE COUNSEL AT TRIAL: Dorian Claude Cotlar. Attorney at Law 723 Main Ste. 826 Houston, TX77002
PRESIDING JUDGE: Hon. Brad Hart 230th District Court Harris County, Texas 1201 Franklin St 16th floor Houston, TX 77002
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin Assistant Public Defender Harris County, Texas 1201 Franklin St 13th floor Houston, TX 77002
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ........................................................................................................ v
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF FACTS............................................................................................................ 1
SUMMARY OF THE ARGUMENT ............................................................................................. 1
ISSUE PRESENTED ................................................................................................................... 2
COURT-APPOINTED COUNSEL BELIEVES THAT THE APPEAL IN THIS CASE IS FRIVOLOUS, SINCE THERE ARE NO ARGUABLE GROUNDS FOR APPEAL FROM THE APPELLANT’S PLEA OF GUILTY FOLLOWING A PRE- SENTENCE INVESTIGATION.
ARGUMENT ............................................................................................................................. 2
A. ANDERS BRIEFS, GENERALLY .................................................................................... 2
B. THE APPEAL IN THIS CASE IS FRIVOLOUS ................................................................... 4
1. SUFFICIENCY OF THE INDICTMENT ...................................................................... 5
2. ANY ADVERSE PRETRIAL RULINGS, INCLUDING BUT NOT LIMITED TO RULINGS ON MOTIONS TO SUPPRESS, MOTIONS TO QUASH, AND MOTIONS FOR SPEEDY TRIAL......................................................................................................................... 6
3. WAIVER OF CONSTITUTIONAL RIGHTS, AGREEMENT TO STIPULATE, JUDICIAL CONFESSION, AND COURT ADMONISHMENTS .................................................... 7
CONCLUSION ........................................................................................................................ 11
PRAYER ............................................................................................................................... 12
CERTIFICATE OF SERVICE .................................................................................................... 13 iii CERTIFICATE OF COMPLIANCE ........................................................................................... 14
iv INDEX OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)...........2, 3, 4, 12
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) .................................................... 4
Breaux v. State, 16 S.W.3d 854 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) ...... 8
Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App. 2001) ...................................................... 8
Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974) ..................................................... 3
Ex Parte Douthit, 232 S.W. 3d 69 (Tex. Crim. App. 2007) ................................................. 7
Ex Parte Smith, 678 S.W.2d 78 (Tex. Crim. App. 1984) ..................................................... 9
Ex parte Wilson, 965 S.W.2d 25 (Tex.Crim.App. 1997) .................................................... 12
Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) .................................................... 4
Griffith v. State, 391 S.W.2d 428 (Tex. Crim. App. 1965) (citation omitted). ................... 8
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978) ....................................................... 3
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) .................................................... 2
Lomax v. State, 133 3d 302 (Tex. Crim. App. 2007) ............................................................ 5
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). .............................. 2
Milburn v. State, 15 S.W.3d 267) ........................................................................................... 10
Missouri v. McNeely, 133 S.Ct. 1552 (2013) ........................................................................... 6
Mitchell v. State, 193 S.W.3d 153 (Tex. App.-Houston [1st Dist.] 2006, no pet.) .............. 4
Noland v. State, 264 S.W.3d 144 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) ...... 11
Sowels v. State, 45 S.W.3d 690 (Tex.App.--Waco 2001, no pet.) ........................................ 2 v Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ............................................... 3, 4
State v. Villareal, __ S.W.3d __ (Tex. Crim. App., Dec. 16, 2015) .................................... 6
Stephens v. State, 35 S.W.3d 770 (Tex.App.—Houston [1st Dist.] 2000, no pet.) .......... 12
Strickland v. Washington, 466 U.S. 668 (1984) ....................................................................... 6
Vanmeter v. State, 165 S.W. 3d 68, 72 (Tex. App.—Dallas 2005, pet. ref’d) .................... 7
Villareal v. State, 214 S.W.2d 464 (Tex. Crim. App. 1948) ................................................. 7
Statutes
Tex. Code Crim. Proc. art. 1.13 ............................................................................................ 7
Tex. Code Crim. Proc. art. 1.25 ............................................................................................ 7
Tex. Code Crim. Proc. art. 26.13(a) ..................................................................................... 9
Tex. Code Crim. Proc. art. 26.13(a) (1)-(5).......................................................................... 8
Tex. Code Crim. Proc. art. 26.13(b) .................................................................................... 9
Tex. Code Crim. Proc. art. 26.13(c) ..................................................................................... 9
Tex. Code Crim. Proc. art. 26.13(d). .................................................................................. 10
Tex. Code Crim. Proc. art. 26.13(h). .................................................................................... 9
Tex. Penal Code §12.32 ....................................................................................................... 11
Tex. Penal Code §19.02(b)(3) (West 2015)...................................................................... 1, 5
Tex. Penal Code §49.04(a) (West 2015). .......................................................................... 1, 5
Tex. Penal Code §49.09(b)(2) (West 2015)...................................................................... 1, 5
vi Other Authorities
http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf................................ 4
Constitutional Provisions
Tex. Const. art. I, § 10............................................................................................................. 7
vii Statement of the Case
This is an appeal from a conviction for first-degree felony murder, with the
underlying felony of driving while intoxicated (DWI), third offense, pursuant to Tex.
Penal Code Ann., §§19.02(b)(3); 49.04(a), & 49.09(b)(2) (West 2015). It was further
alleged that appellant had a prior felony conviction for arson. The instant offense
occurred on or about May 25, 2014 (C.R. at 7). On March 27, 2015, appellant Victor
Sanchez pled guilty (C.R. at 174-182) and the case was reset for a hearing on a
presentence investigation (C.R. at 183). The hearing took place on June 22, 2015 and
the trial court sentenced Mr. Sanchez to 18 years in the Institutional Division of the
Texas Department of Criminal Justice (C.R. at 184; 2 R.R. at 56).
Statement of Facts
Appellant was accused of and pled guilty to driving on the wrong side of the road
while intoxicated and colliding with the complainant’s vehicle; the complainant was
killed in the collision (C.R. at 7). Appellant also pled guilty to having had two prior
felony DWI convictions prior to the accident (C.R. at 7). The state abandoned the
felony arson enhancement paragraph (C.R. at 174).
Summary of the Argument
The undersigned has thoroughly reviewed the record and concluded that there
are no meritorious grounds for appeal from the appellant’s plea of guilty following a
pre-sentence investigation. Therefore, the undersigned moves to withdraw from
1 representing the Appellant and has filed, simultaneously with this brief, a motion to
withdraw.
Issue Presented
Court-appointed counsel believes that the appeal in this case is frivolous, since there are no arguable grounds for appeal from the appellant’s plea of guilty following a pre-sentence investigation.
Argument
A. Anders Briefs, generally
An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In
re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney finds,
following a professional, conscientious evaluation of the record, that a case is wholly
frivolous, his obligation to his client is to seek leave to withdraw. Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s obligation to the appellate
court is to assure it, through an Anders brief, that such a complete review of the record
has been undertaken and that the request to withdraw is well-founded. Id.
A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See McCoy
v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court must
resolve doubtful issues in the appellant’s favor. Id. In the brief which accompanies his
motion to withdraw, counsel must make references to the appellate record as well as to
any applicable statutes, rules, and cases that lead counsel to the conclusion that the
appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.--Waco 2001, no pet.).
The brief must contain references to anything in the record that might arguably support 2 the appeal, even though counsel believes that the appeal is frivolous. Anders v. California,
supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Counsel is not required to make arguments that would not be made on behalf of
a client who has retained counsel for the appeal; counsel is not required to make
arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim. App.
1974). If counsel concludes that there are no arguable grounds for appeal, then counsel
should so state and should make references to the record, statutes, and cases which
support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807 (Tex. Crim.
App. 1978). When discussing the record, counsel must discuss the evidence introduced
at trial and must provide the appellate court “with ready references to the record.”
Stafford v. State, supra at 510 n.3; High v. State, supra. Conclusory statements in the brief
are insufficient. Anders v. California, supra; High v. State, supra; Currie v. State, supra.
Counsel must furnish a copy of the motion to withdraw and a copy of the brief
to appellant and must advise appellant of his right to review the record and to file a pro
se brief. Counsel must certify or otherwise show the appellate court that appellant has
been furnished with a copy of the motion and brief and that appellant has been advised
of his right to obtain the record and to file a pro se brief.
After appellant has himself raised the points that he wishes to raise, or the time
has passed for him to do so, the appellate court must conduct an independent
examination of the proceedings and determine whether the appeal is wholly frivolous.
Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153 (Tex. App.-Houston [1st Dist.] 3 2006, no pet.). If the court finds that the appeal is wholly frivolous and that there are
no arguable grounds for appeal, it will grant the motion to withdraw and affirm the
judgment of the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009).
Although a reviewing court may issue an opinion explaining why the appeal lacks
arguable merit, it is not required to do so. Id., at 767. If the court determines that there
are arguable grounds, it will abate the appeal and remand the cause to the trial court
with instructions that the trial court appoint new and different counsel to represent
appellant on appeal to present those arguable grounds, as well as any others that new
counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). The appellate court does not make a decision on the merits of any issue,
except to determine whether an appeal is wholly frivolous and that there either are or
are not arguable grounds for appeal. Anders v. California, supra; Stafford v. State, supra. An
appellant may challenge a holding that there are no arguable grounds for appeal by filing
a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, supra, at
827-828, fn 6.
B. The appeal in this case is frivolous
The undersigned has evaluated the record from this case with the help of the
“Anders Guidelines” posted on the website of the Fourteenth Court of Appeals. See
http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf. 4 1. Sufficiency of the indictment
The elements of “felony” murder under Tex. Penal Code §19.02(b)(3) (West
2015) are 1) a person 2) commits or attempts to commit a felony, other than
manslaughter and, 3) in the course of and in furtherance of the commission or attempt,
or in immediate flight from the commission or attempt 4) commits or attempts to
commit an act clearly dangerous to human life that causes the death of an individual.
The elements of DWI, third offense are 1) a person 2) commits an offense if 3)
the person is intoxicated while operating a motor vehicle 4) on a public roadway and
the offense is a felony of the third degree if 5) it is shown on the trial of the offense
that 6) the person has previously been convicted 6) two times of any other offense
relating to the operating of a motor vehicle. Tex. Penal Code §§49.04(a) & 49.09(b)(2)
(West 2015).
The indictment in the instant case alleges each element as prescribed by the
statutes (C.R. at 7). It has been held that DWI may be the underlying felony for purposes
of felony murder because the legislative intent in drafting 19.04 (b)(3) was clearly to
preclude a culpable mental state. Lomax v. State, 133 3d 302, 303 (Tex. Crim. App. 2007).
Nothing else raises a question regarding the indictment, or which would suggest that it
should have been challenged in the trial court by defense counsel; it tracks the pertinent
statutes and is therefore sufficient to provide notice.
The indictment further alleges a prior conviction for the felony offense of arson,
that enhancement was dropped at the plea (C.R. at 174). 5 2. Any adverse pretrial rulings, including but not limited to rulings on motions to suppress, motions to quash, and motions for speedy trial
There were no adverse pretrial rulings. Defense counsel filed no motion to
suppress the blood draw, even though there was no warrant and appellant was
unconscious and therefore unable to consent when the blood was drawn (C.R. at 10).
The draw arguably was not a valid search under the Fourth Amendment to the United
States Constitution as no exigent circumstances existed to preclude the officers getting
a warrant and consent under these circumstances could not have been implied under
the statute cited in the probable cause statement. See, e.g. State v. Villareal, __ S.W.3d __
(Tex. Crim. App., Dec. 16, 2015); Missouri v. McNeely, 133 S.Ct. 1552 (2013).
The record is silent, however, as to why defense counsel failed to raise the issue
in a motion to suppress, therefore it cannot be determined whether or not counsel had
a reasonable trial strategy for not doing so; neither prong of Strickland v. Washington, 466
U.S. 668 (1984), therefore can be met to show ineffective assistance of counsel. Further,
the record indicates that the state abandoned the felony enhancement paragraph alleged
in the indictment and agreed to a cap at 40 years at the plea, which could well have had
a bearing on defense counsel’s strategy in failing to prosecute a suppression motion
(C.R. at 174; 1 R.R. at 6).
As noted above, there was no motion to quash filed; the indictment alleged all
the requisite elements of the offense and raised no reason to attempt to quash it. There
were no limitations or speedy trial issues. The offense occurred on May 25, 2014 and
6 was first indicted on a prior cause number on August 8, 2014. That indictment was
dismissed and reindicted on the instant cause number on February 19, 2015 (C.R. 7 &
8). Appellant pled guilty on March 27, 2015 and was sentenced on June 22, 2015 (C.R.
at 174 & 184; 2 R.R. at 56).
3. Waiver of Constitutional Rights, Agreement to Stipulate, Judicial Confession, and Court Admonishments
The defendant in a criminal proceeding, other than a capital case, has the right
to waive the right to trial by jury. Tex. Code Crim. Proc. art. 1.13. The defendant’s
written waiver must be filed with the case and it must show that it was made before the
defendant entered his plea and it must be in person and in open court. Tex. Code Crim.
Proc. art. 1.13. In addition, the waiver must include signed approvals from the
defendant’s attorney, the court, and the state. Tex. Code Crim. Proc. art. 1.13. Despite
these requirements, a defect in the defendant’s waiver is not reversible error unless the
defect is a jurisdictional defect, or a constitutional or fundamental error. Ex Parte
Douthit, 232 S.W. 3d 69, 74 (Tex. Crim. App. 2007).
The defendant also has a right to confront witnesses at trial. Tex. Code Crim.
Proc. art. 1.25; Tex. Const. art. I, § 10. That right attaches during the trial process and
not before, and the defendant may waive this right by waiver or by failing to object.
Vanmeter v. State, 165 S.W. 3d 68, 72 (Tex. App.—Dallas 2005, pet. ref’d). The
defendant also has a right against self-incrimination. Tex. Const. art. I, § 10; See Villareal
v. State, 214 S.W.2d 464 (Tex. Crim. App. 1948). The right against self-incrimination
7 may be waived by written waiver upon a plea of guilty, and in unitary cases, the waiver
extends to both the punishment and sentencing phases. Carroll v. State, 42 S.W.3d 129,
132 (Tex. Crim. App. 2001). The case becomes unitary when there is a guilty plea in
front of a judge or a jury. Carroll, 42 S.W.3d at 134. Furthermore, when a confession
and a stipulation(s) are admitted into evidence without objection, they are sufficient to
comply with provisions “requiring the state to introduce evidence into the record
showing the guilt of the accused who waives and pleads guilty to a non-capital felony.”
Griffith v. State, 391 S.W.2d 428, 430 (Tex. Crim. App. 1965) (citation omitted). In
addition, a judicial confession will support a plea of guilty if it is voluntarily given before
the court or magistrate during legal proceedings. Breaux v. State, 16 S.W.3d 854 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d).
Mr. Sanchez signed and filed a document entitled “Waiver of Constitutional
Rights, Agreement to Stipulate and Judicial Confession” (1 R.R. at 174). The contents
of that document are identical to the indictment but for the fact that the felony
enhancement paragraph has been crossed out, thereby limiting the minimum sentence
to five years. This document shows Mr. Sanchez waived the following rights before he
entered his guilty plea to murder: his right to trial by jury, the right to appearance,
confrontation and cross-examination of witnesses, and the right against incrimination.
He pleaded guilty in open court to the trial judge and the record shows the court
complied with Art. 23.13(a)(1)-(5) of the Texas Code of Criminal Procedure (1 R.R. at
8 3-5). Mr. Sanchez stated he was a U.S. citizen and the court, nevertheless, admonished
him that he would be deported, should he not be a citizen (1 R.R. at 4).
In compliance with Art. 26.13(b), the trial court asked defense counsel if it was
their opinion appellant was competent to go forward, which they confirmed he was.
Appellant himself averred that he understood the information in his agreement with
the state regarding the range of punishment, which included a cap at 40 years, and the
court’s discretion to sentence him anywhere within that range 1 R.R. at 4-5). Further,
the court confirmed appellant’s understanding of the waiver of constitutional rights,
agreement to stipulate and judicial confession (1 R.R. at 6). Appellant further confirmed
that he understood all the written admonishments he had initialed and signed (1 R.R. at
7; 1 C.R. at 176-79).
As part of the court’s evaluation of the voluntariness of the plea, it is required to
admonish the accused. Tex. Code Crim. Proc. art. 26.13(a). The admonishment must
include, among other matters, the range of punishment for the charged offense, or any
plea bargain agreements. Tex. Code Crim. Proc. art. 26.13(a). The standard for
complying with the rules of admonishment is substantial compliance, unless the accused
can show that he was misled, unaware of, or harmed by the admonishment. Tex. Code
Crim. Proc. art. 26.13(c). However, failure to comply with substantial compliance does
not set aside the conviction, sentence, or plea. Tex. Code Crim. Proc art. 26.13(h).
Substantial compliance is deemed to have occurred when the admonishment is given.
Ex Parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984). The admonishment may be 9 made orally or in writing; however, if the court chooses to make a written
admonishment, it must receive a statement by the accused and his attorney stating that
the accused is aware and understanding of the consequences. Tex. Code Crim. Proc.
art. 26.13(d).
In this case appellant was admonished both orally by the court. He further
initialed and signed written admonishments (C.R. at 176-79). The trial court, therefore,
was more than substantially compliant with Art. 26.13.
Mr. Sanchez was interviewed by a presentence investigator on June 18, 2015 with
his defense counsel (2 R.R. at State’s Ex. 2). Objections were made by neither side (2
R.R. at 7). Appellant denied having had an abusive childhood and stated he had never
been diagnosed with or treated for mental health problems. The report writer noted
that appellant’s juvenile probation file from January 2009 included a diagnosis of Axis
I –Disruptive Behavior Disorder NOS, ADHD, and cannabis abuse.
Mr. Sanchez initialed a paragraph in the Admonishments document filed at his
plea to this offense, stating he was mentally competent (C.R. at 178). As noted in the
discussion of the plea colloquy, his defense counsel stated his opinion that Mr. Sanchez
was competent at that time and the trial court agreed (1 R.R. at 6).
Mr. Sanchez and his father both testified for the defense at the PSI hearing, so
punishment evidence was presented on appellant’s behalf, attempting to mitigate
appellant’s actions (2 R.R. at 25 & 1, respectively). The record demonstrates no reason
to believe defense counsel failed to seek out mitigation evidence. See, e.g. Milburn v. State, 10 15 S.W.3d 267, 270). Even had there been reason to believe there was no mitigation
investigation, appellant did not raise the issue in a motion for new trial so the issue is
waived.
Mr. Sanchez’s sentence falls within the range of punishment for a first-degree
felony (Tex. Penal Code, §12.32). No objection was made to his sentence in the trial
court or in a post-trial motion; therefore any error in sentencing was made for purposes
of appellate review. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d) (“[I]n order to preserve for appellate review a complain that a sentence
is grossly disproportionate, constituting cruel and unusual punishment, a defendant
must present to the trial court a timely request, objection, or motion stating the specific
grounds for the ruling desired.”)
Conclusion
Appellate counsel certifies that she has diligently reviewed the entire appellate
record in this cause as well as relevant case law. In her opinion, the appeal of Mr.
Sanchez’s guilty plea and the trial court’s sentencing in this cause lacks merit and is
wholly frivolous because the record reflects no reversible error.
A copy of the entire appellate record (which comprises one volume of the Clerk’s
record and two volumes of the Reporter’s Record) has been sent to the Appellant,
Victor Antonio Sanchez, TDCJ # 02005365, Luther Unit, TDCJ, 1800 Luther Dr.,
Navasota, TX 77868.
11 In addition to sending Mr. Sanchez a copy of this brief, the undersigned also sent
him a letter explaining the brief and how he might pursue issues that cannot be raised
on direct appeal in an 11.07 writ, as well as a copy of the attached Motion to Withdraw.
See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E. 2d 493 (1967) and Stephens
v. State, 35 S.W.3d 770, 771 (Tex.App.—Houston [1st Dist.] 2000, no pet.)(motion to
withdraw pursuant to Anders brief is properly directed to the appellate court, not the
trial court).
Should this Court grant the undersigned’s Motion to Withdraw, the undersigned
will inform the Appellant of the result of his appeal and will also inform Mr. Clark that
he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See
Ex parte Wilson, 965 S.W.2d 25, 27 (Tex. Crim. App. 1997).
PRAYER
Counsel for appellant asks that this Court grant the motion to withdraw as
counsel filed with this brief.
Respectfully submitted,
ALEXANDER BUNIN Chief Public Defender Harris County Texas
/s/Melissa Martin ______________________________ MELISSA MARTIN Assistant Public Defender Harris County Texas 12 1201 Franklin 13th Floor Houston Texas 77002 (713) 368-0016 (713) 437-4319 e-fax TBA No. 24002532
CERTIFICATE OF SERVICE
I certify that I provided a copy of the foregoing brief to the Harris County
District Attorney on the day the brief was accepted.
/s/ Melissa Martin ______________________________ MELISSA MARTIN Assistant Public Defender
13 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 3,088 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3. Upon request, undersigned counsel will provide an electronic version of this brief
and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Melissa Martin ______________________________ MELISSA MARTIN