Cooke, Derrick Keith ( 2015 )


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  •                                                            May 29, 2015
    IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    EX PARTE                     §
    §
    §          NO. WR-81,360-01
    §
    DERRICK KEITH COOKE          §
    11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
    NUMBER C-1-009379-08496383-A IN THE CRIMINAL DISTRICT COURT
    NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH
    BEACH, JUDGE PRESIDING.
    APPLICANT’S BRIEF
    Stickels & Associates, P.C.
    P. O. Box 121431
    Arlington, Texas 76012
    Phone: (817) 479-9282
    Fax: (817) 622-8071
    John W. Stickels
    State Bar No. 19225300
    Attorney for Derrick Keith Cooke
    i
    IDENTITY OF PARTIES AND COUNSEL
    For convenience of the Court, the State provides the following list of all trial and
    appellate counsel:
    Applicant:
    Original Plea Proceedings:                           Jeffery D. Gooch
    2315 N Main St, Ste 320
    Fort Worth, TX 76164
    Adjudication Proceedings:                            J. Don Carter
    3663 Airport Fwy
    Fort Worth, TX 76111
    Appeal:                                              Robert “Bob” Ford
    Deceased
    Post-Conviction Writ:                                John Stickels
    P.O. Box 121431
    Arlington, Texas 76012
    Respondent:
    Original Plea Proceedings:                           Tim Curry, District Attorney
    Amy Collum
    Adjudication Proceedings:                            Phelesa M. Guy
    Appeal:                                              Kimberly C. Wesley
    Post-Conviction Writ:                                Joe Shannon, Jr.
    District Attorney
    Sharen Wilson,
    District Attorney
    Andréa Jacobs
    401 W. Belknap
    Fort Worth, Texas 76196
    i
    Court:
    Plea Proceeding:        Hon. Sharen Wilson
    Criminal District Court No. 1
    401 W. Belknap
    Fort Worth, Texas 76196
    Post-Conviction Writ:   Hon. Elizabeth Beach
    Criminal District Court No. 1
    401 W. Belknap
    Fort Worth, Texas 76196
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL ............................................................ i
    TABLE OF CONTENTS ......................................................................................... iii
    TABLE OF AUTHORITIES .....................................................................................v
    REQUESTED ISSUES ..............................................................................................3
    1. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER
    APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO
    ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS
    ISSUE IS A JURISDICTIONAL MATTER. ............................................................3
    2. APPLICANT’S APPLICATION SHOULD BE GRANTED AND
    CONVICTION VACATED BECAUSE PURSUANT TO SECTION 22.01(b)(2)
    OF THE TEXAS PENAL CODE, APPELLANT’S SENTENCE IS ILLEGAL;
    THUS, APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE. .......3
    3. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
    THE NEW MEXICO CONVICTION. ......................................................................3
    STATEMENT OF FACTS ........................................................................................4
    ARGUMENTS AND AUTHORITIES .....................................................................8
    ISSUE ONE: WHETHER APPLICANT IS SUFFERING COLLATERAL
    CONSEQUENCES UNDER ARTICLE 11.07, §3(c) OF THE CODE OF
    CRIMINAL PROCEDURE GIVEN THE FACT THAT EVEN IF THE PRESENT
    TARRANT COUNTY ASSAULT HAD NOT BEEN ELEVATED TO A THIRD
    DEGREE FELONY, AS A CLASS A MISDEMEANOR, IT COULD HAVE
    ELEVATED THE ASSAULT IN APPLICANT’S HOOD COUNTY CASE TO A
    THIRD DEGREE FELONY? ....................................................................................8
    I. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER
    APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO
    ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS
    ISSUE IS A JURISDICTIONAL MATTER. ............................................................8
    iii
    II. APPLICANT’S APPLICATION SHOULD BE GRANTED BECAUSE
    UNDER THE LAWS OF THE STATE OF TEXAS, SPECIFICALLY, SECTION
    22.01(b)(2)(A) OF THE TEXAS CODE OF CRIMINAL PROCEDURE,
    APPELLANT’S SENTENCE IS ILLEGAL; THUS, APPLICANT IS
    SUFFERING A COLLATERAL CONSEQUENCE. .............................................10
    ISSUE TWO: WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO
    OBJECT TO THE NEW MEXICO CONVICTION? .............................................12
    CONCLUSION AND PRAYER .............................................................................14
    CERTIFICATE OF SERVICE ................................................................................16
    CERTIFICATE OF COMPLIANCE .......................................................................16
    iv
    TABLE OF AUTHORITIES
    Cases
    Boykin v. State, 
    818 S.W.2d 782
    (Tex. Crim. App. 1991), .......................................9
    Chiarini v. State, 
    442 S.W.3d 318
    (Tex. Crim. App. 2014). .....................................9
    Cooke v. State, No. 02-08-026-CR, 
    2009 WL 3078405
    (Tex. App.—Fort Worth
    Sept. 21, 2009, pet. ref’d) (not designated for publication). ..............................2, 5
    Ex Parte Graves, 
    70 S.W.3d 103
    (Tex. Crim. App. 2002)....................................7, 8
    Ex Parte Harrington, 
    310 S.W.3d 457
    (Tex. Crim. App. 2010). .........................7, 8
    Ex Parte Parrott, 
    396 S.W.3d 531
    (Tex. Crim. App. 2013), ..................................10
    Faulk v. State, 
    608 S.W.2d 625
    (Tex. Crim. App. 1980) ..........................................9
    Mitchell v. State, 
    821 S.W.2d 420
    (Tex. App.—Austin 1991, pet ref’d). ........ 10, 11
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 80 L.ed.2d 674 (1984). .11
    Statutes
    Tex. Code Crim. Proc. art. 11.07 (West 2013) ................................................ passim
    Tex. Penal Code §22.01(b)(2)(A) (West 2001). ....................................................4, 9
    v
    IN THE COURT OF CRIMINAL APPEALSOF TEXAS
    EX PARTE                              §
    §
    §     NO. WR-81, 360-01
    §
    DERRICK KEITH COOKE                   §
    APPLICANT’S BRIEF
    11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO.
    C-1-009379-08496363-A IN THE CRIMINAL DISTRICT COURT NO. 1 OF
    TARRANT COUNTY, TEXAS: THE HONORABLE JUDGE ELIZABETH
    BEACH, JUDGE PRESIDING
    TO THE HONORABLE JUDGE OF SAID COURT:
    COMES NOW, DERRICK KEITH COOKE, APPLICANT, by and through
    his counsel of record, the Honorable John W. Stickels, and files this Applicant’s
    Brief pursuant to the Court of Criminal Appeals’ Order signed and dated February
    25, 2015 and in support shows the following:
    STATEMENT OF THE CASE
    On June 26, 2002, a grand jury in Tarrant County, Texas indicted Applicant
    for assault causing bodily injury to a family member— with a prior conviction, a
    third degree felony. On October 31, 2002, Applicant pled guilty and the trial court
    placed him on deferred adjudication for a term of five years. See Unadjudicated
    Judgment on Plea of Guilty of Nolo Contendre and Suspending Imposition of
    Sentence, Cause No. 0849683D. Applicant violated the terms of his deferred
    1
    adjudication, specifically committing a new offense to wit: assault on a family
    member—causing bodily injury. On January 3, 2008, the Honorable Jerry
    Woodlock sentenced him to three years in the Institutional Division of the Texas
    Department of Criminal Justice (TDCJ). See Judgment Adjudicating Guilt, Cause
    No. 0849683. On September 21, 2009, the Texas Court of Criminal Appeals
    affirmed this conviction. See Cooke v. State, No. 02-08-026-CR, 
    2009 WL 3078405
    (Tex.App.—Fort Worth Sept. 21, 2009, pet. ref’d) (not designated for
    publication).
    On August 1, 2007, a grand jury in Hood County indicted Applicant under
    Section 22.01, a third degree felony, alleging that Applicant committed the
    following offense: assault-bodily injury family member-enhanced. See Indictment,
    No. CR10647. On May 23, 2008 a jury in Hood County, Texas convicted and
    sentenced Applicant to eight years in the TDCJ for the offense of assault with
    bodily injury to a family member (with a prior conviction), a third degree felony.
    See Judgment of Conviction by Jury. On July 11, 2011, Derrick Keith Cooke
    (hereinafter referred to as “Applicant”) filed his application for writ of habeas
    corpus under article 11.07 of the Texas Code of Criminal Procedure.
    2
    REQUESTED ISSUES
    1. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER
    APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE
    PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM
    BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
    2.   APPLICANT’S APPLICATION SHOULD BE GRANTED AND
    CONVICTION VACATED BECAUSE PURSUANT TO SECTION
    22.01(b)(2) OF THE TEXAS PENAL CODE, APPELLANT’S
    SENTENCE IS ILLEGAL; THUS, APPLICANT IS SUFFERING A
    COLLATERAL CONSEQUENCE.
    3.  TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
    OBJECT TO THE NEW MEXICO CONVICTION.
    3
    STATEMENT OF FACTS
    On June 26, 2002, a grand jury in Tarrant County, Texas indicted Applicant
    of the third degree offense of assault causing bodily injury to a family member—
    with a prior conviction. See Indictment, Cause No. 0849683D, See Tex. Penal
    Code §22.01(b)(2)(A) (West 2001). On October 31, 2002, Applicant pled guilty to
    the third degree offense of assault causing bodily injury to a family member—with
    a prior conviction. See Unadjudicated Judgment on Plea of Guilty of Nolo
    Contendre and Suspending Imposition of Sentence, Cause No. 0849683D. The
    offense of assault causing bodily injury to a family member was enhanced by using
    a 1999 New Mexico conviction for assault. See Indictment, Cause No. 0849683D,
    Judgment and Sentence—Cause No. M-0033-VR-98-00017 (New Mexico
    Judgment). The trial court placed him on deferred adjudication for a term of five
    years. See Unadjudicated Judgment on Plea of Guilty of Nolo Contendre and
    Suspending Imposition of Sentence, Cause No. 0849683D.
    Applicant violated the terms of his deferred adjudication, specifically
    committing a new offense: assault on a family member—causing bodily injury. On
    January 3, 2008, the Honorable Jerry Woodlock sentenced him to three years in the
    (TDCJ). See Judgment Adjudicating Guilt, Cause No. 0849683. On September 21,
    2009, the Texas Court of Criminal Appeals affirmed this conviction. See Cooke v.
    4
    State, No. 02-08-026-CR, 
    2009 WL 3078405
    (Tex. App.—Fort Worth Sept. 21,
    2009, pet. ref’d) (not designated for publication).
    On August 1, 2007, a grand jury in Hood County indicted Applicant under
    Section 22.01 for the following offense: assault-bodily injury family member-
    enhanced, a third degree felony. See Indictment, No. CR10647. The indictment
    included an enhancement paragraph including the above-mentioned Tarrant
    County offense. On May 23, 2008, a jury in Hood County, Texas convicted and
    sentenced Applicant to eight years in TDCJ. See Judgment of Conviction by Jury.
    This application for writ of habeas corpus was filed on July 11, 2011. On
    February 25, 2015, The Court of Criminal Appeals of Texas ordered Applicant and
    Respondent to submit a brief addressing the issues stated herein. See Order, No.
    Wr-81, 360-61, February 25, 2015.
    5
    SUMMARY OF THE ARGUMENT
    Applicant’s application should be granted and his conviction vacated
    because his sentence is illegal under the laws of the State of Texas. Whether
    appellant is suffering from a collateral consequence is a matter of a jurisdiction.
    The fact that even if the present Tarrant County assault had not been elevated to a
    third degree felony, as a class A misdemeanor it could have elevated the assault in
    Applicant’s Hood County case to a third degree felony is not relevant nor related to
    the jurisdictional issue. In properly analyzing the issue of whether Applicant
    suffered a collateral consequence, the essential question should be whether the
    Tarrant County conviction had an impact on another case and not whether
    Applicant’s requested relief would impact another case. Thus, the essential
    question is whether the Tarrant County conviction affected the Hood County case,
    which it did. This Court has jurisdiction to address the merits of this application.
    Under section 22.01(b)(2) of the Texas Penal Code, Applicant’s Tarrant
    County conviction was improperly enhanced from a Class A misdemeanor to a
    third degree felony by using the 1999 New Mexico Conviction. Thus, Applicant is
    improperly confined because his conviction is illegal under the law.
    6
    Counsel was ineffective in failing to object to the use of 1999 New Mexico
    conviction. The statute on its face states that an assault family violence offense:
    [i] s a Class A misdemeanor, except that the offense is a felony of the third
    degree if the offense is committed against:
    (2) a member of the defendant’s family or household, if it is shown on
    the trial of the offense that the defendant has been previously
    convicted of an offense against a member of the defendant’s family or
    household under this section.
    The phrase “under this section” pertains to only in-state convictions. Thus,
    Applicant’s claim to ineffective assistance of counsel should be granted.
    7
    ARGUMENTS AND AUTHORITIES
    ISSUE ONE: WHETHER APPLICANT IS SUFFERING COLLATERAL
    CONSEQUENCES UNDER ARTICLE 11.07, §3(c) OF THE CODE OF
    CRIMINAL PROCEDURE GIVEN THE FACT THAT EVEN IF THE
    PRESENT TARRANT COUNTY ASSAULT HAD NOT BEEN
    ELEVATED TO A THIRD DEGREE FELONY, AS A CLASS A
    MISDEMEANOR, IT COULD HAVE ELEVATED THE ASSAULT IN
    APPLICANT’S HOOD COUNTY CASE TO A THIRD DEGREE
    FELONY?
    I.  THE COURT SHOULD ANSWER THE ISSUE OF WHETHER
    APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE
    PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM
    BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
    The Court in Ex Parte Graves, 
    70 S.W.3d 103
    , 109 (Tex. Crim. App. 2002),
    stated that the Court should determine the issue of habeas corpus jurisdiction prior
    to ever reaching the merits of a claim. Ex Parte Graves, 
    70 S.W.3d 103
    , 109 (Tex.
    Crim. App. 2002). An application for habeas corpus relief from collateral
    consequences of another conviction is permitted as long as the Applicant is
    confined subsequent to a conviction for a felony offense.            See Ex Parte
    Harrington, 
    310 S.W.3d 457
    (Tex. Crim. App. 2010). In Ex Parte Harrington, the
    court stated: “ a showing of a collateral consequence, without more, is now
    sufficient to establish ‘confinement’ so as to trigger application of art. 11.07.”
    Case law demonstrates that an Applicant’s mere statement that he is confined and
    suffering a collateral consequence is sufficient to invoke the jurisdiction of this
    8
    Court. 
    Id. at 457.
      Confinement is sufficient to initiate Article 11.07 without
    placing any more burdens on the Applicant. 
    Id. Prior to
    addressing the merits of the claim, the Court must first address the
    jurisdictional issue. The Court’s jurisdiction is invoked where there are specific
    facts to demonstrate an Applicant is confined and claims that he has suffered a
    collateral consequence as a result of his conviction. See Tex. Code Crim. Proc. Art
    11.07, §3(c), Ex Parte Graves, 
    70 S.W.3d 103
    , 109 (Tex. Crim. App. 2002), See
    Ex Parte Harrington, 
    310 S.W.3d 457
    (Tex. Crim. Ap.. 2010).
    The text of Art 11.07 §3(c) reads as follows :
    [I]t shall be the duty of the convicting court to decide whether there are
    controverted, previously unresolved facts material to the legality of the
    applicants confinement. Confinement means confinement for any offense or
    any collateral consequence resulting from the conviction that is the basis of
    the instant habeas corpus.
    Reading the statute on its face, there is no requirement for jurisdictional
    purposes that the relief requested would relieve the collateral consequences. Based
    on case law and there is no requirement that the relief requested would ease the
    Applicant’s suffering from the collateral consequences. Therefore, the Court here
    should inquire as to whether the Tarrant County conviction, which used the 1999
    New Mexico conviction, affected the Hood County sentence; thus causing
    Appellant to suffer a collateral consequence.
    9
    Here, the Tarrant County conviction was enhanced by the 1999 New Mexico
    conviction. As stated, under section 22.01 of the Texas Penal Code, it was
    improper to enhance the Tarrant County Assault –Family Violence, Class A
    misdemeanor to a third degree felony assault family violence—with prior
    conviction. Subsequent to this improper enhancement, this Tarrant County
    conviction was used to enhance Applicant’s conviction in Hood County; thus,
    Applicant is facing a collateral consequence.
    II. APPLICANT’S   APPLICATION SHOULD BE          GRANTED
    BECAUSE UNDER THE LAWS OF THE STATE OF TEXAS,
    SPECIFICALLY, SECTION 22.01(b)(2)(A) OF THE TEXAS CODE OF
    CRIMINAL PROCEDURE, APPELLANT’S SENTENCE IS ILLEGAL;
    THUS,   APPLICANT    IS    SUFFERING      A   COLLATERAL
    CONSEQUENCE.
    Section 22.01(b)(2) of the Texas Penal code states an assault—family
    violence:
    is a class A misdemeanor , except that the offense is a felony of the third
    degree if the offense is committed against:
    (2) a member of the defendant’s family or household, if it is shown on
    the trial of the offense that the defendant has been previously
    convicted of an offense against a member of the defendant’s family or
    household under this section.
    Tex. Penal Code § 22.01(b)(2) (West 2001) (emphasis added).
    A prior 1999 New Mexico conviction for assault family violence was used
    to enhance applicant’s Tarrant County conviction. Unless a statute is ambiguous or
    10
    plain meaning would lead to a result clearly not intended by the legislature, courts
    utilize the plain meaning of text. See Faulk v. State, 
    608 S.W.2d 625
    , 630 (Tex.
    Crim. App. 1980), Boykin v. State, 
    818 S.W.2d 782
    , 785-86 (Tex. Crim. App.
    1991), Chiarini v. State, 
    442 S.W.3d 318
    , 320 (Tex. Crim. App. 2014).
    Only if the plain meaning of language would lead to absurd results should a
    court stray from the plain meaning of the language. The term “under this section”
    on its face is referring to the law of Texas under the specific statute which speaks.
    See Mitchell v. State, 
    821 S.W.2d 420
    , 420 (Tex. App.—Austin 1991, pet ref’d).
    Here, Applicant’s prior New Mexico conviction was improperly used to enhance
    his Tarrant County conviction from a Class A misdemeanor to a third degree
    felony; thus , Appellants confinement is illegal.
    In Ex Parte Parrott, 
    396 S.W.3d 531
    (Tex. Crim. App. 2013), the Court
    addressed the issue of whether the Applicant properly raised an illegal-sentence
    claim based on the State’s improper use of a prior conviction for enhancement
    purposes. Ex Parte Parrott, 
    396 S.W.3d 531
    (Tex. Crim. App. 2013). This is a
    recognized claim in a writ of habeas corpus. 
    Id. at 533.
    A sentence outside a legal
    range of punishment is an illegal sentence. 
    Id. Here, Applicant
    did not have any
    prior assault convictions from the State of Texas aside from the 1999 New Mexico
    conviction. Thus, he would have been charged with a Class A Misdemeanor
    offense with a range of punishment up to one year in the county jail. Here,
    11
    Applicant was sentenced to 3 years in TDCJ, which is a sentence outside the legal
    range of punishment. Thus, Applicant’s application should be granted and
    conviction vacated.
    ISSUE TWO: WHETHER COUNSEL WAS INEFFECTIVE IN FAILING
    TO OBJECT TO THE NEW MEXICO CONVICTION?
    I.  COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE
    NEW MEXICO CONVICTION.
    A claim to ineffective assistance of counsel should be analyzed under the
    two-prong analysis under Strickland v. Washington. See Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 80 L.ed.2d 674 (1984). The issue is whether: 1)
    counsel’s representation fell below an objective standard of representation and 2)
    whether this performance was so deficient it deprived Applicant of a right to fair
    trial (essentially that there is reasonable probability that but for counsel’s
    inadequate representation the results of the case would be different). See Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 80 L.ed.2d 674 (1984).
    Although neither this Court nor the Second Court of Appeals adopted the
    holding in Mitchell v. State, through diligent research of case law counsel would
    have discovered there was supporting case law to support a motion to quash
    indictment. The court in Mitchell v. State, held that a DWI statute with similar
    language “under the laws of this section” excluded the use of out-of-state
    12
    convictions for enhancement purposes. Mitchell v. State, 
    821 S.W.2d 420
    , 422
    (Tex. App. –Austin 1992).
    On page 3 of the affidavit submitted by the Honorable Jeffery D. Gooch, he
    states that filing a motion to set aside the indictment would be frivolous. Yet ,
    counsel failed to properly investigate the issues stated herein; thus, subjecting
    Applicant to an illegal range of punishment for a third degree felony instead of a
    Class A misdemeanor.
    Although counsel will not be found ineffective where the error is predicated
    upon unsettled law, one can hardly argue that the textual language of the assault
    family violence statute is complex or confusing. As stated earlier, the text of
    Section 22.01 (assault family violence statute), states “under this section.” The text
    of this language is neither confusing nor ambiguous nor complex to cause
    confusion, especially for counsel who had been practicing for seven years and
    worked on quite a few criminal cases. See Affidavit of the Honorable Jeffery D.
    Gooch, page 3. Trial counsel’s representation fellow below objective standards of
    reasonableness. Due to trial counsel’s failure to properly investigate the law,
    Applicant was subjected to confinement in a state prison for a Class A
    misdemeanor offense with a range of punishment up to a year in the county jail.
    Applicant’s claim for ineffective assistance of counsel should be granted.
    13
    CONCLUSION AND PRAYER
    Based upon the foregoing, Applicant prays that this Court find:
    1.      THE COURT SHOULD ANSWER THE ISSUE OF WHETHER
    APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE
    PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM
    BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
    2.      APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE
    BECAUSE HIS HOOD COUNTY CONVICITION WAS ENHANCED
    BY THE TARRANT COUNTY CONVICTION WHICH IS ILLEGAL
    AND VACATE APPLICANT’S CONVICTION.
    3.      TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
    TO THE NEW MEXICO CONVICTION AND THIS CLAIM BE
    GRANTED.
    14
    Respectfully submitted,
    Stickels & Associates, P.C.
    P. O. Box 121431
    Arlington, Texas 76012
    Phone: (817) 479-9282
    Fax: (817) 622-8071
    By: /S/ John W. Stickels
    John W. Stickels
    State Bar No. 19225300
    Attorney for Derrick Keith Cooke
    15
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of this Brief has been served on
    the office of the Attorney for the State, on the 29th day of May, 2015.
    /S/ John W. Stickels
    John W. Stickels
    CERTIFICATE OF COMPLIANCE
    1.     This brief complies with the type-volume limitation of Tex. R. App. P.
    9.4(i)(2) because it contains 2,589 words, excluding the parts of the brief exempted
    by Tex. R. App. P. 9(4)(i)(1).
    2.     This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
    because it has been prepared in proportional spaced typeface using Microsoft Word
    software in Times New Roman 14-Point text and Times New Roman 12-point font
    in footnotes.
    /S/ John W. Stickels
    John W. Stickels
    16