Storm, Melanie ( 2015 )

PD-0621-15
PD-0621-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/26/2015 9:50:50 AM
Accepted 5/26/2015 10:57:35 AM
ABEL ACOSTA
NO._________________
CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
MELANIE STORM
Petitioner
v.
THE STATE OF TEXAS
Respondent
Petition is in Cause No.1373849D from Criminal District
Court No. One of Tarrant County, Texas,
and Cause No. 02-14-00419-CR in the
Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Phone: (817) 222-3333
May 26, 2015
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorney for Petitioner
Melanie Storm
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s
final judgment, as well as the names and addresses of all trial and
appellate counsel.
Trial Court Judge: Hon. Elizabeth
Petitioner: Melanie Storm
Petitioner’s Trial Counsel: Hon. Jack Duffy
TBN: 06168950
Attorney at Law
6220 Midway
Haltom City, Texas 76117
Petitioner’s Counsel Hon. Abe Factor
on Appeal: TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Appellee: The State of Texas
Appellee’s Trial Counsel: Hon. Sam Williams
TBN: 24034742
District Attorney’s Office
401 W. Belknap
Fort Worth, Texas 76196
Appellee’s Counsel Hon. Charles Mallin
on Appeal: TBN: 12867400
Hon. Helena Faulkner
TBN: 06855600
District Attorney’s Office
401 W. Belknap Street
Fort Worth, Texas 76196
ii
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY. . . .. . . . . . . . . . . . . . . . . .1
GROUNDS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
REASONS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
I. Ms. Storm’s right to confront the witnesses against her was
violated when the trial court considered the PSI at
punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
D. Confrontation Clause Principles. . . . . . . . . . . . . . . . . . . . . . . 5
E. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
F. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
iii
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv
INDEX OF AUTHORITIES
Cases page
Black v. State,
816 S.W.2d 350 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . 3
Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). . . . . . . 4, 5, 9
Davis v. Washington,
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). . . . . . .6-7, 9
Davis v. State,
203 S.W.3d 845 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . 10
De La Paz v. State,
273 S.W.3d 671 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . 5, 6
Ex parte Casarez,
508 S.W.2d 620 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . . . . 4
Ex Parte Hathorn,
296 S.W.3d 570 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 3
Huizar v. State,
12 S.W.3d 479 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 7
Langham v. State,
305 S.W.3d 568 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . 6
McNac v. State,
215 S.W.3d 420 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 9
Pointer v. Texas,
380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). . . . . . . . . . . . 5
Russeau v. State,
171 S.W.3d 871 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 8
v
Smith v. State,
227 S.W.3d 753 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . 2, 4, 5
Storm v. State,
02-14-00419-CR, 2015 WL 1868864 (Tex. App.–
Fort Worth, April 23, 2015, no. pet. h.)
(mem. op., not designated for publication). . . . 1, 3
Stringer v. State,
309 S.W.3d 42 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . 2, 4, 5
Ex parte Turner,
542 S.W.2d 187 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . 4
Wall v. State,
184 S.W.3d 730 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . .9-10
Whorton v. Bockting,
549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). . . . . . . . . . . . 6
Constitutions
U.S. C ONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9
Statutes
T EX. C RIM. P ROC. C ODE A NN. §37.07(3)(a) (West Supp. 2014). . . . . . .7 -8
T EX. C RIM. P ROC. C ODE A NN. § 37.07(3)(d) (West Supp. 2014). . . . . 6, 7
T EX. C RIM. P ROC. C ODE A NN. § 42.12(9)(a) (West Supp. 2014). . . . . 6, 7
T EX. P ENAL C ODE A NN. § 31.03(f)(4) (West Supp. 2014). . . . . . . . . . . . .1
Court Rules
T EX. R. A PP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
vi
STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On July 23, 2014, Melanie Storm (“Ms. Storm” or “Appellant”)
was charged by indictment with theft under $1500 with two prior theft
convictions. (C.R. 5); See T EX. P ENAL C ODE A NN. § 31.03(f)(4) (West
Supp. 2014). On August 8,2014,Ms.Storm entered an open plea of guilty
to the charged offense. (C.R. 22; II R.R. 5). The trial court continued the
proceedings pending the preparation of a Presentence Investigation
Report (“PSI”), until September 29, 2014. (II R.R. 5; III R.R. St. Ex. 1). On
that date, the trial court sentenced Ms. Storm to one (1) year
incarceration in state jail. (C.R. 24; II R.R. 21). A Timely Notice of
Appeal was filed on October 7, 2014. (C.R. 30). This appeal ensued.
STATEMENT OF PROCEDURAL HISTORY
The opinion by the Second Court of Appeals affirming Ms.
Storm’s conviction was handed down on April 23, 2015. See Storm v.
State, 02-14-00419-CR, 2015 WL 1868864 (Tex. App.–Fort Worth, April
23, 2015, no. pet. h.) (mem. op., not designated for publication). This
1
timely Petition for Discretionary review ensued.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. Ms. Storm’s right to confront the witnesses against her was
violated when the trial court considered the PSI at
punishment.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an
important question of state law in a way that comports with the
applicable decisions of the Court of Criminal Appeals, but this Court
is invited revisit and overrule or modify those decisions.
ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. Ms. Storm’s right to confront the witnesses against her was
violated when the trial court considered the PSI at
punishment.1
A. Facts
At the punishment hearing held on September 29, 2014, the trial
1
Undersigned counsel is aware that this Court has directly held adverse to
Appellant’s argument on this point. See Stringer v. State, 309 S.W.3d 42
(Tex. Crim. App. 2010); Smith v. State, 227 S.W.3d 753 (Tex. Crim. App.
2007). The argument for a change or reversal in the law is presented here
for further review.
2
court admitted into evidence the PSI prepared by the Tarrant County
Community Supervision and Corrections Department. (II R.R. 5; III
R.R. St. Ex. 1). Additionally, the trial court stated on the record that it
was taking judicial notice of its contents. (II R.R. 6). At no time did trial
counsel for Ms. Storm raise an objection to the matters included in the
PSI. Based on the evidence set forth in the PSI, the trial court denied
Ms. Storm’s request for probation and sentenced her to one (1) year
incarceration. (II R.R. 19, 21).
B. Opinion Below
The Opinion of the Second Court of Appeals failed to address
Ms. Storm’s substantive complaint, but merely held that her complaint
had not been preserved in the trial court. See Storm, 2015 WL 1868864
at *3 (citing Ex Parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App.
2009).
C. Preservation of Error
The Court of Criminal Appeals has held that under
circumstances where the law is well-settled to the point where any
objection in the trial court would be futile, the claim will not be
considered forfeited for later review. See Hathorn, 296 S.W.3d at 572
(citing Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991) (“Given the
3
settled state of the case law at the time of appellant’s trial, we refuse to
fault him or his attorney for failing to object. . . .Under the established
precedent, the trial judge would have been correct in overruling the
objection. . . .”); See also Ex parte Turner, 542 S.W.2d 187, 189 (Tex. Crim.
App. 1976) (“[I]t would be unreasonable to expect the petitioner to
anticipate the future decision of the United States Supreme Court,”
[and held that there was no intentional waiver for failing] “to object
upon a ground not yet established as a defect of constitutional
magnitude.” (citing Ex parte Casarez, 508 S.W.2d 620 (Tex. Crim. App.
1974)).
In Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007), and later
in Stringer v. State, 309 S.W.3d 42 (Tex. Crim. App. 2010), the Court of
Criminal Appeals explicitly held that extraneous misconduct evidence
could be considered at punishment if included in a PSI even where it
was not shown beyond a reasonable doubt that the defendant had
committed the misconduct, Smith, 227 S.W.3d at 763, and the
Confrontation Clause protections articulated in Crawford v. Washington 2
do not apply at a non-capital sentencing to a PSI used by the judge in
2
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
4
determining the punishment. Stringer, 309 S.W.3d at 48. Thus, any
objection at trial would necessarily been overruled by the trial court.
Id.; Smith, 227 S.W.3d at 763.
D. Confrontation Clause Principles
The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right. . .to be confronted with the witnesses
against him.” U.S. C ONST. amend. VI. This procedural guarantee
applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S.
400, 403, 85 S. Ct. 1065, 1067–68, 13 L. Ed. 2d 923 (1965); De La Paz v. State,
273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the
Confrontation Clause guarantee, a testimonial hearsay statement may
be admitted in evidence against a defendant “only where the declarant
is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68,
124 S. Ct. 1354, 1373–74, 158 L. Ed. 2d 177 (2004); see De La Paz, 273
S.W.3d at 680. “[T]he Crawford rule reflects the Framers’ preferred
mechanism (cross-examination)for ensuring that inaccurate
out-of-court testimonial statements are not used to convict an accused.”
5
Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 1182, 167 L. Ed. 2d
1 (2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a hearsay
statement is ‘testimonial’ when the surrounding circumstances
objectively indicate that the primary purpose of the interview or
interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” De La Paz, 273 S.W.3d at 680. Whether a
statement is testimonial is a question of law. Id.; see Langham v. State,
305 S.W.3d 568, 576 (Tex. Crim. App. 2010).
Virtually all statements in a PSI that reflect negatively on the
defendant will constitute “testimonial” statements for Confrontation
Clause purposes. They are gathered by a state employee, a supervision
officer. T EX. C RIM. P ROC. C ODE A NN. § 42.12(9)(a) (West Supp. 2014).
They are for the express purpose of use in a probation or sentencing
determination concerning the defendant. T EX. C RIM. P ROC. C ODE A NN.
§ 37.07(3)(d) (West Supp. 2014). They are not street-corner
“nontestimonial” statements but instead are statements that a
reasonable declarant would recognize, or would have been expressly
told, were for use in a probation or sentencing decision concerning the
defendant. See, e.g., Davis v. Washington, 547 U.S. 813, 821–24, 126 S. Ct.
6
2266, 2273–74, 165 L. Ed. 2d 224 (2006).
By statute, a PSI is an ex parte communication providing hearsay
evidence to the trial court, denying a defendant the right to confront
witnesses against him in open court. See T EX. C RIM. P ROC. C ODE A NN §§
37.07(3)(d), 42.12(9). The PSI statute not only violates the Confrontation
Clause; its ex parte nature undermines our system of public trials.
Nothing in our law prevents the State’s offering a PSI into evidence
through a sponsoring witness. Nothing prevents the State’s offering a
defendant’s criminal history through a sponsoring witness. A jury
assessing punishment does not require a PSI. A jury hears witnesses
and examines evidence in open court to determine the appropriate
sentence.
In a jury trial, a jury must be instructed that they may not
consider extraneous offenses or acts of misconduct unless they believe
beyond a reasonable doubt that the defendant committed those acts
and offenses. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.
2000).The State, then, bears a burden of proof beyond a reasonable
doubt when it seeks to prove extraneous offenses at the punishment
phase of a jury trial. See T EX. C RIM. P ROC. C ODE A NN. §37.07(3)(a) (West
7
Supp. 2014). The State should not be relieved of its burden of proof
merely because the trial judge assesses punishment.
Additionally, the protections of the Confrontation Clause apply
to the punishment phase of trial. See Russeau v. State, 171 S.W.3d 871,
880–81 (Tex. Crim. App. 2005). In addressing reports admitted at the
punishment phase, the Texas Court of Criminal Appeals held in
Russeau v. State,
The Sixth Amendment’s Confrontation Clause provides
that,“[i]n all criminal prosecutions, the accused shall enjoy the
right. . .to be confronted with the witnesses against him.” This
procedural guarantee is applicable in both federal and state
prosecutions and bars the admission of testimonial statements of
a witness who does not appear at trial unless he is unavailable to
testify and the defendant had a prior opportunity to
cross-examine him. Generally speaking, a statement is
“testimonial” if it is a solemn declaration made for the purpose
of establishing some fact.
The reports in question contained testimonial statements which
were inadmissible under the Confrontation Clause, because the
State did not show that the declarants were unavailable to testify
and appellant never had an opportunity to cross-examine any of
them. Indeed, the statements in the reports amounted to
unsworn, ex parte affidavits of government employees and were
the very type of evidence the Clause was intended to prohibit.
The trial court erred in admitting those portions of the reports
that contained the testimonial statements.
Id.
8
E. Application
Here, though no witnesses testified at punishment, the PSI
compiled by the probation officer was admitted into evidence. (III R.R.
St. Ex. 1). The information included in the PSI is clearly testimonial, in
that much of it is composed of out-of court statements meant to be used
against Ms. Storm at her trial on punishment. See Davis v.Washington,
547 U.S. at 821–24,126 S.Ct.at2273–74. Much of the information is
detrimental to Ms. Storm. (III R.R. St. Ex. 1). The admission of such
testimonial statements violates the Sixth Amendment right possessed
by all criminal defendants to confront the witnesses against them. U.S.
C ONST. amend. VI; Crawford v. Washington, 541 U.S. at 68,124 S.Ct. at
1373–74.The trial court erred by admitting the PSI in violation of the
Sixth Amendment.
F. Harm Analysis
Crawford error is constitutional error subject to a harm analysis
under Rule 44.2(a) of the Texas Rules of Appellate Procedure. T EX. R.
A PP. P. 44.2(a); McNac v. State, 215 S.W.3d 420, 421 (Tex. Crim. App.
2007). Ms. Storm’s sentence must be reversed unless it can be found
beyond a reasonable doubt that the error did not contribute to her
punishment. Wall v. State, 184 S.W.3d 730, 745-46 (Tex. Crim. App.
9
2006). The Court of Criminal Appeals has established four factors to be
considered in analyzing harm from Crawford error: (1) the importance
of the hearsay statements to the State’s case; (2) whether the hearsay
evidence was cumulative of other evidence; (3) the presence or absence
of evidence corroborating or contradicting the hearsay testimony on
material points; (4) the overall strength of the State’s case. Davis v. State,
203 S.W.3d 845, 852 (Tex. Crim. App. 2006).
The only evidence presented by the state at punishment was the
PSI. The trialcourt ultimately denied Ms. Storm’s request for probation
and sentenced her to prison. Moreover, the State emphasized the
extraneous acts of misconduct presented in the PSI in its closing
argument to the trial court. (II R.R. 20-21).
It is impossible to conclude that the error did not contribute to
the conviction or punishment; thus, Ms. Storm was harmed by its
admission, and the judgment of the trial court should be reversed. See
T EX. R. A PP. P. 44.2(a).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
10
Appeals, and that upon reviewing the judgment entered below, that
this Court reverse the opinion of the Second Court of Appeals.
Respectfully submitted,
/s/Abe Factor
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorneys for Petitioner
Melanie Storm
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,799.
/s/Abe Factor
Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 26th
day of May, 2015.
/s/Abe Factor
Abe Factor
11
APPENDIX
1. Opinion of the Second Court of Appeals
12
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00419-CR
MELANIE STORM APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1373849D
----------
MEMORANDUM OPINION1
----------
Appellant Melanie Storm entered an open plea of guilty to theft of property
under $1,500 with two prior convictions. At the sentencing hearing that
eventually followed, the trial court admitted a presentence investigation report
(PSI), found Storm guilty, and sentenced her to one year’s confinement in state
jail. In a single point, Storm argues that her Sixth Amendment right to
1
See Tex. R. App. P. 47.4.
confrontation was violated when the trial court admitted the PSI at the sentencing
hearing.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d
259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306
(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled
on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. Numerous constitutional rights,
including the right to confrontation, may be forfeited for purposes of appellate
review unless they are properly preserved. Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.
App. 1990); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet.
ref’d).
Here, Storm did not assert any objection, including on confrontation
grounds, when the State offered the PSI. In fact, Storm affirmatively stated, “No
objection.” Pointing out that the court of criminal appeals has held contrary to her
issue on the merits and that an objection to the PSI on confrontation grounds
“would necessarily [have] been overruled by the trial court,” Storm contends that
she did not have to object to the PSI on confrontation grounds because when
2
“the law is well-settled to the point where any objection in the trial court would be
futile, the claim will not be considered forfeited for later review.” This is only part
of the exception. The preservation exception may apply when the relief sought
by the appellant becomes available after trial and the appellant, therefore, could
not have been expected to preserve error by objecting at trial. See, e.g.,
Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009). As the State
observes, however, Storm “does not seek to avail herself of a right based on a
favorable change in the law that occurred after her sentencing hearing; instead,
she seeks to change existing case law.” The preservation exception that Storm
relies upon is clearly inapplicable under the circumstances. Accordingly, Storm
forfeited this point for appellate review. We overrule her sole point and affirm the
trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 23, 2015
3