Jesse Dimas Alvarado v. State

ACCEPTED
01-14-00857-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/18/2015 9:11:08 AM
CHRISTOPHER PRINE
CLERK
No. 01-14-00857-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the
6/18/2015 9:11:08 AM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk

No. 1410607
In the 185th District Court
Of Harris County, Texas

JESSE DIMAS ALVARADO
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
ABBIE MILES
State Bar No: 24072240
Assistant District Attorney
Harris County, Texas
SARAH BRUCHMILLER
NEIL KRUGH
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests
oral argument only if oral argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Complainant, victim, or aggrieved party:
State of Texas
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Abbie Miles  Assistant District Attorney on appeal
Neil Krugh & Sarah Bruchmiller  Assistant District Attorneys at
trial
Appellant or criminal defendant:
Jesse Dimas Alvarado
Counsel for Appellant:
Timonthy Hootman  Counsel on appeal
Brian Coyne  Counsel at trial
Trial Judge:
i
Hon. Susan Brown  Presiding Judge
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT…………………………...…i
IDENTIFICATION OF THE PARTIES…………………………………….……..i
INDEX OF AUTHORITIES………………………………………………………iii
STATEMENT OF THE CASE……………………………………………………..1
STATEMENT OF THE FACTS…………………………………………………....1
SUMMARY OF THE ARGUMENT……………………………………………......4
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
The evidence is legally sufficient because the firearm was found in the closet of
appellant’s bedroom where he had lived for eight months, his personal belongings
were in the bedroom, and the firearm was partially exposed and visible with the naked
eye to anyone going into the closet where appellant’s clothes were hung. Additionally,
appellant’s allegation that § 46.01(a)(1) of the Texas Penal Code violates the Texas and
United States Constitution is contrary to caselaw that has consistently held that
prohibiting felons from possessing firearms bears a rational basis to the goal of
precluding the abuse of firearm possession by felons………………………………..5
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED
Appellant cannot overcome the presumption of reasonably competent representation
in light of the silent record. If this Court chooses to address the merits of appellant’s
claim, it is possible that trial counsel chose not to object to State’s Exhibit 4 to further
the defensive theory that although appellant engaged in criminal behavior, nothing in
his background suggested that he was violent or had any previous association with
firearms. Further, if it was error for trial counsel to fail to object to the complained of
evidence, appellant has not established that he was prejudiced by trial counsel’s failure
because the complained of evidence revealed no association with firearms or
violence………………………………………………………………………...…..15
CONCLUSION……………………………………………………………………27
CERTIFICATE OF SERVICE…………………………………………....………28.
iii
INDEX OF AUTHORITIES
Cases
Alvarado v. State,
912 S.W.2d 199 (Tex. Crim. App. 1995) ................................................................ 7
Bingham v. State,
915 S.W.2d 9 (Tex. Crim. App. 1994) ................................................................. 17
Bone v. State,
7 S.W.3d 828 (Tex. Crim. App. 2002).................................................................. 25
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002 ................................................................. 17
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010)(plurality op.)............................................ 7
Burns v. State,
122 S.W.3d 434 (Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) ........................ 20
Caldwell v. State,
686 S.W.2d 363 (Tex. App.—Houston [1st Dist.] 1985, no pet.). ............................. 9
Cannon v. State,
668 S.W.2d 401 (Tex. Crim. App. 1984) .............................................................. 17
Charles v. State,
146 S.W.3d 204 (Tex. Crim. App. 2004) .............................................................. 18
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) ................................................................ 8
Conner v. State,
67 S.W.3d 192 (Tex. Crim. App. 2001).................................................................. 7
Davis v. State,
930 S.W.2d 765 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) ....................... 18
iv
Dewberry v. State,
4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................................... 7
Downs v. State,
244 S.W.3d 511 (Tex. App.--Fort Worth 2007, pet. ref’d) .................................... 20
Evans v. State,
202 S.W.3d 158 (Tex. Crim. App. 2006) .............................................................. 10
Ex parte Granviel,
561 S.W.2d 503 (Tex.Crim.App.1978) ................................................................. 14
Ex parte Jimenez,
364 S.W.3d 866 (Tex. Crim. App. 2012) .............................................................. 23
Fuentes v. State,
991 S.W.2d 267 (Tex. Crim. App. 1999) ................................................................ 7
Gamble v. State,
916 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1996, no pet)............................. 18
Garay v. State,
940 S.W.2d 211 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd)......................... 13
Gipson v. State,
No. 05-01-00770-CR, 05-01-00771-CR, 05-01-0073-CR, 2003 WL 21053918 (Tex.
App.—Dallas May 12, 2003, no pet.) .................................................................. 12
Goodspeed v. State,
187 S.W.3d 390 (Tex. Crim. App. 2005) .............................................................. 18
Gutierrez v. State,
628 S.W.2d 57 (Tex. Crim. App. 1980). .................................................................. 9
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................................... 8
Huerta v. State,
359 S.W.3d 887 (Tex. App.--Houston [14th Dist.] 2012, no pet.) ......................... 19
v
Jackson v. State,
877 S.W.2d 768 (Tex. Crim. App. 1994) .............................................................. 18
Jackson v. Virginia,
443 U.S 307 (1979)............................................................................................... 7
Jordan v. State,
56 S.W. 326 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d) ......................... 13, 15
Lewis v. United States,
445 U.S. 55 (1980).............................................................................................. 14
Lopez v. State,
343 S.W.3d 137 (Tex. Crim. App. 2011) .............................................................. 18
Mata v. State,
226 S.W.3d 425 (Tex. Crim. App. 2007) ......................................................... 18, 19
Matson v. State,
819 S.W.2d 839 (Tex. Crim. App. 1991) ................................................................ 8
McFarland v. State,
928 S.W.2d 482 (Tex. Crim. App. 1996) .............................................................. 17
National Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Forearms, and Explosives,
700 F. 3d. 185 (5th Cir. 2012) .............................................................................. 14
Newsome v. State,
703 S.W.2d 750 (Tex. App.—Houston [14th Dist.] 1985, no pet).......................... 25
Nicholas v. State,
56 S.W.3d 760 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). ......................... 6
Olivarez v. State,
171 S.W.3d 283 (Tex. App.—Houston [14th Dist.] 2005, no pet.). ........................ 10
Ortiz v. State,
93 S.W.3d 79 (Tex Crim. App. 2002). ................................................................. 22
vi
Pomier v. State,
326 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ........................... 7
Ramos v. State,
45 S.W.3d 305 (Tex. App.--Fort Worth 2001, pet. ref’d) ...................................... 20
Richardson v. Ramirez,
418 U.S. 25 (1974).............................................................................................. 15
Rylander v. State,
101 S.W.3d 107 (Tex. Crim. App. 2003) .............................................................. 18
Safari v. State,
961 S.W.2d 437 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d, untimely) ........ 18
Smith v. State,
821 S.W.2d 844 (Tex. Crim. App. 1986). .......................................................... 6, 13
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). .............................................................. 16, 17
Swearingen v. State,
101 S.W.3d 89 (Tex. Crim. App. 2003).................................................................. 8
Taylor v. State,
106 S.W.3d 827 (Tex. App.—Dallas 2003, no pet.). ............................................. 10
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) ................................................ 16, 17, 24, 25
Toney v. State,
3 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) ........................ 18
United States v. Allbright,
59 F.3d 1241 (5th Cir. 1995) (unpublished) ......................................................... 12
United States v. Bernal,
No. L-08-321, 2008 WL 2078164 (S.D.Tex. May 15, 2008) .................................. 14
vii
United States v. Darrington,
351 F.3d 632 (5th Cir. 2003) ................................................................................ 14
United States v. Emerson,
270 F.3d 203 (5th Cir. 2001) ............................................................................... 14
United States v. Everist,
368 F.3d 517 (5th Circ. 2004) .............................................................................. 14
United States v. Taylor,
184 F.3d 816 (5th Cir. 1999) (unpublished) .......................................................... 12
Vasquez v. State,
819 S.W.2d 932 (Tex. App.—Corpus Christi 1991, pet. ref’d) .............................. 22
Villani v. State,
116 S.W.3d 297 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d.) ....................... 7
Walker v. State,
222 S.W.3d 707 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ...................... 15
Wert v. State,
383 S.W.3d 747 (Tex. App.--Houston [14th Dist.] 2012, no pet.) ......................... 19
Wilkerson v. State,
736 S.W.2d 656 (Tex. Crim. App. 1987) .............................................................. 21
Will. v. State,
No. 11-06-00148-CR, 2008 WL 384566 (Tex. App.—Eastland Feb. 14 2008, no pet)
......................................................................................................................... 12
Wilson v. State,
44 S.W.3d 602 (Tex. App.--Fort Worth 2001, pet. ref'd) ...................................... 14
Winter v. State,
725 S.W.2d 728 (Tex. App.—Houston [1st Dist.] 1986, no pet.). ............................. 9
Wright v. State,
401 S.W.3d 813 (Tex. App.—Houston [14th Dist.] 2013, pet ref’d)....................... 10
viii
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000) ................................................................... 7
Statutes
TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2013). ........................................ 9
TEX. PENAL CODE. ANN. § 46.04(a)(1) (West 2011) ....................................... 8, 22, 24
Other Authorities
Don B. Kates, Second Amendment, in 4 Encyclopedia of the American Constitution 1640
(Leonard W. Levy et al. eds., 1986) ..................................................................... 14
Rules
TEX. R. APP. P. 9.4(g) ................................................................................................
TEX. R. APP. PROC. 33.1(a) ...................................................................................... 6
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. PROC. 38.1(i). .................................................................................... 20
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................. i
TEX. R. EVID. 402 and 403..................................................................................... 22
TEX. R. EVID. 404(b). ............................................................................................ 21
ix
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with being a felon in possession of a firearm, having
been previously convicted of sexual assault of a child (C.R. 9, 40). Appellant entered a
plea of not guilty to the offense (R.R.III 9). The jury found appellant guilty, and the
trial court sentenced appellant to confinement for 5 years in the Texas Department of
Criminal Justice (R.R.IV 35, 39; C.R. 40). A written notice of appeal was timely filed
(C.R. 40-44).

STATEMENT OF FACTS
The State challenges all factual assertions in appellant’s brief and presents the
following account of the facts.
Deputy Russell Ackley, of the Harris County Sheriff’s Office, was assigned to
an FBI task force, and on December 5, 2013, was charged with the task of overseeing
the execution of a search warrant at 137 Soren Lane in Houston, Harris County,
Texas (R.R.III 15-16). Deputy Ackley’s investigation into that home discovered that
Jesse Alvarado, appellant, lived there, and that he was a registered sex offender
(R.R.III 24, 38-39).1
Officers David Nieto and Don Miller were also assigned to assist in the
execution of the search warrant on the house on Soren Lane (R.R.III 42-43, 79). The
house had a sign that read “Familia Dimas Alvarado” displayed on the exterior of the
house (R.R.III 17). Upon arrival at the house, the SWAT team made entry into the
home, and encountered four occupants (R.R.III 18-19, 44). The four people were
Alfred Alvarado, Ms. Alvarado, a young female, and appellant (R.R.III 19). Ms.
Alvarado was the mother of Alfred and appellant (R.R.III 19).
Interviews of the occupants of the house were conducted and evidence was
collected (R.R.III 20-21). Evidence was recovered from the house (R.R.III 21).
Officer Nieto found a 9 mm semiautomatic Beretta pistol, a firearm, in appellant’s
room on a shelf located towards the top of the closet (R.R.III 21, 23, 26, 33, 46-47,
51-52). The back end of the firearm was visible, unobstructed, and could be seen with
the naked eye (R.R.III 60, 73). The firearm was photographed, recovered, and cleared
so the search could continue (R.R.III 55). Appellant admitted that the room where the
gun was found belonged to him (R.R.III 46). Scales and plastic baggies commonly
used to package narcotics were also found in the bedroom along with “wrapped up
money” (R.R.III 22, 47). Appellant’s wallet containing his driver’s license and
1
Appellant was previously convicted of sexual assault of a child in cause number 933555 of the 228th
district court of Harris County, Texas, and served 8 years confinement (R.R.III 58). Appellant was
released from custody on July 1, 2011 (R.R.III 26).
2
offender card were also found in the room with men’s clothes (R.R.III 47). There was
a window in the bedroom through which someone could gain entry directly to the
bedroom from outside (R.R.III 47). In the window was a surveillance camera that was
hooked up to a digital recording device and a television (R.R.III 47). Narcotics were
also found in a white vehicle that parked outside the house that belonged to
appellant’s brother, Rudy Alvarado (R.R.III 28-30). Rudy was a gang member with
extensive criminal history that included arrests for narcotics and firearms (R.R.III 29).
Alfred Alvarado testified at trial and claimed to having bought a firearm for
protection because of the crime in the area (R.R.III 87). Alfred claimed that the room
where the gun was found was his room up until April of 2013 (R.R.III 88). Appellant
moved into that room in May 2013 (R.R.III 91-92). Alfred acknowledged that he
knew his brother could not “be around guns” and thought he pawned the firearm
(R.R.III 92). Alfred tried to take responsibility for the firearm and claimed that
appellant did not know it was there (R.R.IV 5-6, 10). Juanita Alvarado, appellant’s
mother, also testified on his behalf (R.R.IV 13). She admitted that the closet where the
gun was found had appellant’s clothes in it (R.R.IV 18). She also claimed she did not
know about the existence of a security system in the appellant’s room (R.R.IV 19-20).
Ms. Alvarado admitted to not knowing what her sons possessed in the house because
they were adults and “[[didn’t] tell her things” (R.R.IV 22).

3
SUMMARY OF THE ARGUMENT
The evidence is legally sufficient because the firearm was found in the closet of
appellant’s bedroom where he had lived for eight months, his personal belongings
were in the bedroom, and the firearm was partially exposed and visible with the naked
eye to anyone going into the closet where appellant’s clothes were hung. Additionally,
appellant’s allegation that § 46.04(a)(1) of the Texas Penal Code violates the Texas and
United States Constitution is contrary to caselaw that has consistently held that
prohibiting felons from possessing firearms bears a rational basis to the goal of
precluding the abuse of firearms possession by felons.
Additionally, appellant cannot overcome the presumption of reasonably
competent representation in light of the silent record. If this Court chooses to address
the merits of appellant’s claim, trial counsel chose not to object to State’s Exhibit 4
because the records were admissible to prove an element of the offense, that appellant
was a convicted felon within five years of his release date. If this Court finds that the
complained of evidence was inadmissible, it is possible that trial counsel decided to
not object to this evidence to further the defensive theory that, although appellant
engaged in bad acts, nothing in his background suggested that he was violent or had
any previous association with firearms. Further, if it was error for trial counsel to fail
to object to the complained of evidence, appellant has not established that he was
4
prejudiced by trial counsel’s failure because his criminal history revealed no
association with firearms or violence.

REPLY TO FIRST POINT OF ERROR
Appellant argues that the evidence that appellant possessed the firearm was
legally insufficient because appellant was not affirmatively linked to the firearm, and
because § 46.04(a)(1) of the Texas Penal Code violates the Texas and United States
Constitution. However, the evidence affirmatively linking appellant to the firearm is
legally sufficient because the firearm was found in the closet of appellant’s bedroom
in which he had exclusively lived for eight months, and where his clothes were
hanging in the closet. Appellant admitted that the room belonged to him and his
wallet and identification were found in the room. Additionally, appellant appeared to
be selling drugs from the bedroom, and installed a surveillance system to monitor
activity outside the bedroom window. All of these facts affirmatively link appellant to
the firearm that was partially in plain view on the shelf of appellant’s closet.
Regarding the constitutional challenge, caselaw that has consistently held that
prohibiting felons from possessing firearms bears a rational basis to the goal of
precluding the abuse of firearms possession by felons, and thus does not run afoul the
Texas or United States Constitution.
5
Preservation of error
On appeal, appellant claims that § 46.04(a)(1) of the Texas Penal Code violates
the article I Section 23 of the Texas Constitution, and the Second Amendment of the
United States Constitution.2 Appellant made no constitutional objection to the trial
court. It is well settled that almost every right, constitutional and statutory, may be
waived by the failure to object.” Smith v. State, 821 S.W.2d 844, 855 (Tex. Crim. App.
1986). As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely and specific
request, objection, or motion. TEX. R. APP. PROC. 33.1(a). Even constitutional right
may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996) (finding
waiver of cruel and unusual punishment argument for failure to object); Nicholas v.
State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).
Since appellant did not raise this constitutional challenged to § 46.04(a)(1) in
the trial court, he has waived the ability to challenge its constitutionality on appeal.
Appellant’s point of error regarding the constitutionality of § 46.04(a)(1) should be
overruled for this reason alone.
Standard of Review
Legal sufficiency is the only standard a reviewing court should apply in
evaluating whether the evidence proving each element of the charged offense has
been proven beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
2
Appellant’s brief at 41-42.
6
Crim. App. 2010)(plurality op.); Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). Accordingly, this Court must apply a legal-
sufficiency standard when addressing appellant’s sufficiency arguments. Brooks, 323
S.W.3d at 912; Pomier, 326 S.W.3d at 378.
Under a legal sufficiency review, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S 307, 319 (1979); Conner v. State, 67 S.W.3d 192, 197
(Tex. Crim. App. 2001). This Court considers all the evidence and the reasonable
inferences therefrom. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207
(Tex. Crim. App. 1995). The jury, as the trier-of-fact, “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999); Villani v. State, 116 S.W.3d 297, 301 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d.). This Court should not re-evaluate the
weight and credibility of the evidence and thereby substitute its judgment for that of
the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Villani,
116 S.W.3d at 301.
Reconciliation of conflicts in the evidence is within the exclusive province of
the jury, and the jury may choose to believe some testimony and disbelieve other
testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). There is a
presumption that conflicted facts were resolved in favor of the prosecution. Matson v.
7
State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991). Each fact need not point directly
and independently to the guilt of appellant, as long as the combined and cumulative
force of all the incriminating circumstances is sufficient to support the conviction.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Hooper, 214 S.W.3d at 13. The question is not whether a
rational jury could have entertained a reasonable doubt, but whether it necessarily
would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).
The “cumulative force” of all circumstantial evidence can be sufficient for a jury to
find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503,
507 (Tex. Crim. App. 2006).
Analysis
An offense is committed when “[a] person who has been convicted of a
felony…possesses a firearm [] after the conviction and before the fifth anniversary of
the person’s release from confinement following the conviction of the felony or the
person’s release from supervision, under community supervision, parole, or
mandatory supervision, which is later.” See TEX. PENAL CODE. ANN. § 46.04(a)(1)
(West 2011). In the present case, appellant was accused of possessing a firearm on
December 5, 2013, after being convicted of the felony offense of sexual assault of a
child on August 12, 2013, and having been released from confinement as a result of
8
that conviction on July 3, 2011 (C.R. 9). “’Possession’ means actual care, custody,
control, or management.” See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp.
2013).
When the evidence shows that the defendant was not in exclusive possession
of the contraband, the evidence must establish affirmative links between the
defendant and the contraband. The affirmative link must be of such that a reasonable
inference can be made that the accused knew of the contraband and exercised control
over it. Winter v. State, 725 S.W.2d 728, 731 (Tex. App.—Houston [1st Dist.] 1986, no
pet.). Without these additional facts and circumstances affirmatively linking the
defendant to the contraband, it cannot be concluded that the defendant had
knowledge or control over the contraband. Cude, 716 S.W.2d at 47; Flores v. State, 650
S.W.2d 429, 430 (Tex. Crim. App. 1983); Caldwell v. State, 686 S.W.2d 363, 365 (Tex.
App.—Houston [1st Dist.] 1985, no pet.). The additional evidence can be
circumstantial as long as the evidence excludes every other reasonable hypothesis
except that of the guilt of the defendant. Gutierrez v. State, 628 S.W.2d 57, 60 (Tex.
Crim. App. 1980).
The following non-exclusive list of factors may be the affirmative link(s) to a
defendant and the contraband he is accused of possessing: (1) the defendant’s
presence when the search was conducted, (2) whether the contraband was in plain
view; (3) the defendant’s proximity to, and accessibility of, the narcotic; (4) whether
9
the defendant was under the influence of narcotics when arrested; (5) whether the
defendant possessed narcotics or other contraband when arrested; (6) whether the
defendant made incriminating statements; (7) whether the defendant attempted to
flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor
of narcotics; (10) whether other contraband or drug paraphernalia was present; (11)
whether the defendant owned, or had the right to possess, the place where the
contraband was found; (12) whether the place where the contraband was found was
enclosed; (13) whether the defendant was found with a large quantity of cash; (14)
whether the conduct of the defendant indicated a consciousness of guilt; and (15)
whether a large quantity of contraband was present. See Evans v. State, 202 S.W.3d 158,
162 n. 12 (Tex. Crim. App. 2006); See also Wright v. State, 401 S.W.3d 813, 818-19 (Tex.
App.—Houston [14th Dist.] 2013, pet ref’d); See also Olivarez v. State, 171 S.W.3d 283,
291-92 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The number of links present
is less important than the degree to which each link connects the accused to the
contraband. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).
Appellant argues that the evidence is legally insufficient because “[t]here is no
evidence that appellant actually knew that the pistol was inside the house, or that his
brother had even purchased it” and “that a conviction under the circumstances of this
case would result in a violation of constitutional rights of appellant’s family members
10
and himself to keep and bear arms under article I, Section 23 and the Second
Amendment.”3
Turning to the first reason appellant urges as grounds for reversal, the evidence
is legally insufficient to sustain the conviction because there was no evidence
presented to the jury that appellant knew the firearm was in the house.4 Appellant
complains that since the firearm was not in plain view, and he did not flee or verbally
associate himself with the firearm, the evidence affirmatively linking it to him is legally
insufficient.5 Appellant offers no similar fact scenario in which analogous evidence
was found to be legally insufficient.
In the present case, appellant had been living in the bedroom attached of the
closet where the firearm was found for eight months at the time the search warrant
was executed (R.R.III 91-92). Appellant’s clothes were in the closet were the firearm
was found (R.R.III 47, R.R.IV 18). The back of the firearm was unobstructed and
visible with the naked eye by anyone going into that closet (R.R.III 60, 73). Appellant
admitted that the bedroom belonged to him (R.R.III 46). Appellant’s wallet
containing his driver’s license and offender identification card were also found in the
bedroom connected to the closet where the firearm was found (R.R.III 47). There was
also evidence of the use and sale of narcotics (R.R.III 22, 47). Appellant also set up a
surveillance camera in the bedroom (R.R.IV 19-20). The jury was entitled to rely upon
3
Appellant’s brief at 40-42.
4
Appellant’s brief at 40-41.
5
Appellant’s brief at 41.
11
all these fact to determine that appellant was in possession of the firearm. See Gipson v.
State, No. 05-01-00770-CR, 05-01-00771-CR, 05-01-0073-CR, 2003 WL 21053918, at
* 5 (Tex. App.—Dallas May 12, 2003, no pet.) (holding that the evidence proving
possession of a firearm was factually sufficient when the State presented evidence that
the firearm was accessible to the defendant and partially visible when the officer
entered the room, and occupant of apartment testified it did not belong to her); See
Williams v. State, No. 11-06-00148-CR, 2008 WL 384566, at * 3 (Tex. App.—Eastland
Feb. 14 2008, no pet) (holding that possession evidence was sufficient when firearm
was found in an unclosed space accessible to the defendant); See also United States v.
Taylor, 184 F.3d 816 (5th Cir. 1999) (unpublished) (holding that evidence of possession
was sufficient when contraband was found in defendant’s room, and personal
property belonging to him, narcotics, and money were also found in the room); See
also United States v. Allbright, 59 F.3d 1241 (5th Cir. 1995) (unpublished) (holding that
evidence of possession of methamphetamine was sufficient when methamphetamine
was found in a bedroom defendant admitted belonged to him that also contained drug
paraphernalia, defendant’s personal papers, and the co-occupant of the bedroom had
not been in bedroom for two weeks).
The firearm was found in the closet of appellant’s bedroom in which he had
exclusively lived for eight months, and where his clothes were hanging in the closet.
Appellant admitted that the room belonged to him and his wallet and identification
were found in the room. Additionally, appellant appeared to be selling drugs from the
12
bedroom, and installed a surveillance system to monitor activity outside the bedroom
window. All of these facts affirmatively link appellant to the firearm that was partially
in plain view on the shelf in appellant’s closet. Appellant’s point of error should be
overruled.
Appellant then argues that the “Court should nevertheless acquit [appellant]
because…[a] conviction under the circumstances of this case would result in a
violation of the constitutional rights of appellant’s family members and himself to
keep and bear arms under article I, section 23 and the Second Amendment.”6
Appellant neither provides authority that the proposition that appellant’s family has
standing to challenge the constitutionality, state or federal, of 46.04(a)(1) of the Texas
Penal Code, nor that his constitutional rights have been infringed upon in any way.7
In addressing the constitutionality of a statute, the statute is to be presumed
constitutional and valid, and construed in an effort to not run afoul the constitution.
Smith v. State, 149 S.W.3d 667, 670 (Tex. App.-Austin 2004, pet. ref'd) (citing Smith v.
State, 898 S.W.2d 838, 847 (Tex. Crim. App.1995)); Jordan v. State, 56 S.W.3d 326, 329–
30 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) (citing Garay v. State, 940 S.W.2d
211, 215 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd)). Appellant has the burden
of establishing that 46.04(a)(1) is unconstitutional. Jordan, 56 S.W.3d at 330 (citing
6
Appellant’s brief at 41-42.
7
Appellant’s brief at 42-43.
13
Garay, 940 S.W.2d at 215); Wilson v. State, 44 S.W.3d 602, 604 (Tex. App.--Fort Worth
2001, pet. ref'd) (citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978)).
It is well established that the government may restrict access and possession of
firearms to those finally convicted of a felony offense. See National Rifle Ass’n of
America, Inc. v. Bureau of Alcohol, Tobacco, Forearms, and Explosives, 700 F. 3d. 185 (5th Cir.
2012) (holding that “[o]ne implication of this emphasis on the virtuous citizen is that
the right to arms does not preclude laws disarming the unvirtuous citizens (i.e.,
criminals) or those who, like children or the mentally imbalanced, are deemed
incapable of virtue.”) This theory suggests that the Founders would have supported
limiting or banning “the ownership of firearms by minors, felons, and the mentally
impaired.” See Don B. Kates, Second Amendment, in 4 Encyclopedia of the American
Constitution 1640 (Leonard W. Levy et al. eds., 1986); See also United States v. Emerson,
270 F.3d 203, 261 (5th Cir.2001) (inferring from scholarly sources that “it is clear that
felons, infants and those of unsound mind may be prohibited from possessing
firearms”); See also United States v. Bernal, No. L-08-321, 2008 WL 2078164, at * 3
(S.D.Tex. May 15, 2008) (holding that the defendant, a felon, “did not have a
fundamental right to possess a Hipoint .45 caliber pistol on October 25, 2007.”); See
United States v. Everist, 368 F.3d 517, 519 (5th Circ. 2004); United States v. Darrington, 351
F.3d 632, 633-34 (5th Cir. 2003); Emerson, 270 270 F.3d at 260-61; Lewis v. United States,
445 U.S. 55, 66 (1980) (holding that Congress could rationally conclude that any
felony conviction was a sufficient basis for restricting a felon’s ability to possess a
14
firearm); Richardson v. Ramirez, 418 U.S. 25, 56 (1974) (holding the disenfranchisement
of felons, even after completing their sentences and parole, does not violate equal
protection).
Both the First and Fourteenth Courts of Appeal had found Texas Penal Code §
46.04 is constitutional. See Walker v. State, 222 S.W.3d 707, 712-13 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (relying on Jordan and holding that holding that
precluding felons from possessing body armor is rationally related to the goal of
precluding the abuse of such possession by felons); See also Jordan v. State, 56 S.W. 326,
330-31 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d) (holding that the statute was
rationally related to the goal of preventing felons access to firearms because of the
increased risk of felons abusing firearm possession).
Appellant has not carried his burden of establishing that § 46.04(a)(1) violates
the state or federal constitution. To the contrary, there is ample state of federal
authority granted the State and Congress the authority to preclude those convicted of
felony offenses from possession firearms. Appellant’s point of error should be
overruled.
REPLY TO SECOND POINT OF ERROR
Appellant argues that trial counsel was deficient for failing to object to
inadmissible and substantially prejudicial character evidence. However, appellant
cannot over the presumption of reasonably competent representation in light of the
15
silent record. Additionally, trial counsel was not deficient because it is possible that
trial counsel chose not to object to State’s Exhibit 4 because the complained of
evidence was admissible to prove an element of the charged offense. Also, one
possible strategy for not objecting to the complained of evidence is that the evidence
furthered the defensive theory that appellant had never previously engaged in conduct
involving firearms. Further, appellant if it was error for trial counsel to fail to object to
the complained of evidence, appellant has not established that he was prejudiced by
trial counsel’s failure because his criminal history revealed no association with firearms
or violence.
Analysis
In order to prevail on a claim of ineffective assistance of counsel, a defendant
must show: (1) counsel’s performance was deficient; and (2) this deficiency was so
prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S. 668, 677-
78, 104 S. Ct. 2052, 2064 (1984). The first prong of the Strickland standard requires the
defendant to show that counsel’s performance fell below an objective standard of
reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Regarding the second prong, the defendant must show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim. Id. at 813.
16
An appellate court examines the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel. Id. An appellate
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 688. Judicial
scrutiny of counsel’s performance must be highly deferential. Id. A defendant carries
the burden of proving his claim of ineffective assistance of counsel by a
preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.
1984). A defendant must overcome the strong presumption that an attorney’s actions
were sound trial strategy. Strickland, 466 U.S. at 688. Furthermore, a claim of
ineffective assistance of counsel must be firmly supported by the record. McFarland v.
State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Bingham v.
State, 915 S.W.2d 9 (Tex. Crim. App. 1994).
The record on direct appeal usually will not be sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic decision making
as to overcome the presumption that counsel’s conduct was reasonable and
professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the
trial record contain sufficient information to permit a reviewing court to fairly
evaluate the merits of such a serious allegation. Id. In the majority of cases, the record
on direct appeal is simply underdeveloped and cannot adequately reflect the alleged
failings of trial counsel. Id. (quoting Thompson, 9 S.W.3d at 813-14).
17
Trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110-
11 (Tex. Crim. App. 2003); see also Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim.
App. 2004) (person with most, if not exclusive, knowledge of the salient facts
regarding an ineffectiveness claim is usually defendant’s trial counsel). Absent such an
opportunity, an appellate court should not find deficient performance unless the
challenged conduct was so outrageous that no competent attorney would have
engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
When the record is silent as to counsel’s trial strategy, an appellate court may
not speculate about why counsel acted as she did. Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994); Toney v. State, 3 S.W.3d 199, 210 (Tex. App.—Houston [14th
Dist.] 1999, pet. ref’d); Safari v. State, 961 S.W.2d 437, 445 (Tex. App.—Houston [1st
Dist.] 1997, pet. ref’d, untimely filed); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—
Houston [1st Dist.] 1996, no pet.). Without testimony from trial counsel, an appellate
court must presume that counsel had a plausible reason for her actions. Lopez v. State,
343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011); Mata v. State, 226 S.W.3d 425, 430-31
(Tex. Crim. App. 2007); Safari, 961 S.W.2d at 445. In the absence of such testimony,
an appellate court cannot meaningfully address claims of ineffectiveness. Davis, 930
S.W.2d at 769.
18
A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Huerta v. State, 359 S.W.3d 887, 891 (Tex. App.--Houston [14th Dist.] 2012, no pet.).
It is not sufficient that the defendant show, with the benefit of hindsight, that his
counsel’s actions or omissions during trial were merely of questionable competence.
Id. Rather, to show that counsel’s acts or omissions were outside the range of
professionally competent assistance, the defendant must show that counsel’s errors
were so serious that he was not functioning as counsel. Id.
Following his conviction, appellant did not file a motion for new trial. As
such, appellant’s trial counsel has not had the opportunity to explain his trial strategy
or how his actions and inactions were possibly consistent with such a strategy.
Accordingly, the record is silent regarding counsel’s strategy. In such a circumstance,
it must be presumed that counsel had a plausible strategic reason for his manner of
representation. Mata, 226 S.W.3d at 430-31. Facing a silent record, it would be
inappropriate for a reviewing court to speculate that counsel’s representation of
appellant was not guided by sound trial strategy.
Given the silent record, appellant has failed to overcome the presumption that
trial counsel’s challenged actions and omissions were sound trial strategy. For this
reason alone, appellant’s allegations of ineffectiveness for failing to object character
evidence regarding appellant should be defeated. Wert v. State, 383 S.W.3d 747, 757-58
(Tex. App.--Houston [14th Dist.] 2012, no pet.); Downs v. State, 244 S.W.3d 511, 515
19
(Tex. App.--Fort Worth 2007, pet. ref’d); Burns v. State, 122 S.W.3d 434, 436-37 (Tex.
App.--Houston [1st Dist.] 2003, pet. ref’d); see also Ramos v. State, 45 S.W.3d 305, 311-
12 (Tex. App.--Fort Worth 2001, pet. ref’d) (rejecting defendant’s eighteen allegations
of ineffectiveness solely because record was silent regarding trial counsel’s strategy).
In the event this Court chooses to address the merits of appellant’s claim of
ineffective assistance of counsel despite the silent record, appellant’s point of error
should be overruled because the evidence was admissible and there was a strategic
reason for not objecting to the evidence. Specifically, appellant complains that trial
counsel did not object to the introduction of evidence regarding appellant’s “prison
records…containing the laundry list of bad-acts that appellant had, according to the
records, engaged in over time.”8 Appellant points out that these records contain
“evidence of multiple arrests, escape, masturbating in front of prison officials and use
of all told forms of illegal narcotics imaginable…”9 Appellant fails to cite to the
record when discussing the evidence that he alleges trial counsel should have objected
to.10 The general allegations made by appellant do not identify which statements
appellant is specifically complaining about or the legal grounds under which he
believes each individual statements is inadmissible, and thus the point of error has not
been adequately briefed. See TEX. R. APP. PROC. 38.1(i). As such, appellant has failed
to demonstrate that trial counsel was deficient
8
Appellant’s brief at 48.
9
Appellant’s brief at 49.
10
Appellant’s brief at 48.
20
The State assumes for the sake of argument that appellant is referring to State’s
Exhibit 4, which consists of twenty-three pages of records from the Review and
Release Processing Section of the Texas Department of Criminal Justice Parole
Division (R.R.V State’s Exhibit 4). Contained in such records are information about
the underlying sexual assault, appellant’s deferred adjudication probation, the motion
and allegations to revoked appellant’s deferred adjudication probation, his release
date, family history, and the indictment (R.R.V State’s Exhibit 4). Trial counsel did not
object when the State offered State’s Exhibit 4 (R.R.III 25).
A criminal defendant is “entitled to be tried on the accusations made in the
State’s pleading and he should not be tried for some collateral crime or being a
criminal generally.” Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987).
Thus, evidence of other crimes, wrongs, or acts are not admissible to prove the
character of the defendant, but may be admissible for other legitimate purposes. TEX.
R. EVID. 404(b). “The general standard or test for the admission of an extraneous
offense is whether the prosecution can show (1) that the offense or transaction is
relevant to a material issued in the case, and (2) that the probative value of the
evidence to the trier of fact outweighs its prejudicial or inflammatory nature.”
Wilkerson, 736 S.W.2d at 659. Appellant cites a long list of cases for the proposition
21
that appellant’s failure to object to alleged bad character evidence rendered his
performance deficient.11
To demonstrate ineffective assistance of counsel for failure to object to the
admission of evidence or testimony, appellant must identify the specific objection and
prove that it would have been successful. Ortiz v. State, 93 S.W.3d 79, 93 (Tex Crim.
App. 2002). An isolated failure to object does not amount to deficient performance
because whether “counsel provides a defendant adequate assistance is to be judged by
the totality of the circumstances rather than by isolated acts or omissions.” Vasquez v.
State, 819 S.W.2d 932, 938 (Tex. App.—Corpus Christi 1991, pet. ref’d) (holding that
trial counsel’s performance was not deficient despite making the wrong objection and
jury argument in light of the totality of the representation).
In the present case appellant was charged with possessing a firearm within five
years of release from confinement, parole, or mandatory release. See TEX. PENAL
CODE. ANN. § 46.04(a)(1) (West 2011). (C.R. 9). Thus, the record contained in State’s
Exhibit 4 was relevant and probative in proving an essential element of the charged
offense, when appellant was convicted and then released from confinement. See TEX.
R. EVID. 402 and 403.
Appellant has failed to demonstrate that redaction of some statements made in
State’s Exhibits 4 would have been required even had trial counsel objected. This
Court should reject appellant’s argument that the trial court’s failure to object
11
Appellant’s brief at 45 footnote 7.
22
constituted ineffective assistance of counsel. Ex parte Jimenez, 364 S.W.3d 866, 887
(Tex. Crim. App. 2012) (‘The failure to object to proper questions and admissible
testimony…is not ineffective assistance.”). To the extent that some information
contained in State’s Exhibit 4 may have been inadmissible, it is clear that trial
counsel’s strategy was to paint appellant as a man who committed and was convicted
of a non-violent sex offense, and while the sexual nature of the offense may be
offensive to some, there is no allegation that appellant was a violent person, or there
were allegations that he was convicted of an offense involving violence or the use of a
firearm (R.R.III 36-37, 39).12 Highlighting the lack of firearms in appellant’s past
played perfectly into trial counsel’s argument that the forearm was Alfred’s and the
officers moved it to make is visible when it actually was well hidden in the closet
unbeknownst to appellant (R.R.IV 27-28). While this strategy may seem
unconventional because, by necessity, it highlights the sexual nature of the underlying
offense, it could ring true as brutally honest in the eyes of a jury because it is so
unconventional. Even failing to object to the information contained in State’s Exhibit
4 regarding the summary of the sexual assault could be strategic to highlight the
absence of a weapon used in commission of the offense.
12
Specifically, trial counsel highlighted that
“Q. [r]egarding his conviction for sexual assault of a child, that was not an aggravated sexual assault,
was it?
A. No, sir, it was not.
Q. Aggravated sexual assault would have meant that he had forcible sex with somebody, wouldn’t
it?” (R.R.III 39).
23
Appellant argues that he was prejudiced by trial counsel’s failure to object
because “the records had no relevance to any issues to be decided by the jury other
than to show that because appellant was a bad person in the past he must, logically,
have been a bad person on this occasion and therefore been a felon in possession of
that pistol.”13 This is factually inaccurate. The State had to prove the prior felony
conviction as well as the conviction and release dates to prove the elements of the
charged offense as discussed above. See TEX. PENAL CODE. ANN. § 46.04(a)(1) (West
2011). Thus the evidence that appellant complains of on appeal was relevant, and had
a relevance and was not simply an attempt to paint appellant as a bad person.
Trial counsel’s performance must be evaluated looking at the totality of the
representation. Thompson, 9 S.W.3d at 813. During the trial, the location of the firearm
and its ability to be seen with the naked eye by someone entering the closet became
important in establishing possession. The State presented photographs of the firearm
in an attempt to establish that the firearm was visible to anyone entering the closet
(State’s Exhibits 17 and 18). Position and location of the firearm became a pivotal
issue in establishing appellant’s possession or lack thereof, of the firearm. Trial
counsel was able to get the officers to admit that the firearm had been moved prior to
being photographed, thus calling into question the most compelling piece of the
State’s evidence (R.R.III 35, 63, 65-66, 69, 70). This clearly was consequential with the
13
Appellant’s brief at 48.
24
jury who deliberated for approximately an hour despite only about four hours of
testimony (C.R. 59-60). Id.
Trial counsel called two witnesses, appellant’s brother and his mother.
Appellant’s brother, Alfredo, testified that he bought firearms for his own personal
protection, and the firearm in question did not belong to appellant (R.R.III 87-88,
R.R.IV 5-6, 10). Mrs. Alvarado testified that, despite the fact that her belongings were
in the closet where the firearm was found, she did not see or know a firearm was in
the closet, thus making appellant’s lack of awareness that the firearm was in his closet
more plausible (R.R.IV 17). It cannot be said that trial counsel was ineffective when
he called the testimony of the law enforcement officers into questions, and offered an
alternative possessor for the firearm. Thompson, 9 S.W.3d at 813.
Assuming it was deficient for trial counsel to fail to object to inadmissible
character evidence, it cannot be said that appellant suffered any prejudice as a result of
this failure. Bone v. State, 7 S.W.3d 828, 833 (Tex. Crim. App. 2002). When trial
counsel’s strategy was to highlight the fact that his criminal past was non-violent trial
counsel’s strategy was to argue that appellant was a sex offender, not a violent person
with any association to firearms, it cannot be said that appellant suffered prejudice as
a result of failing to object to the admission of the evidence that furthered that
strategy. See Newsome v. State, 703 S.W.2d 750 (Tex. App.—Houston [14th Dist.] 1985,
no pet) (holding that trial counsel was not ineffective for using the defendant’s “’bad
25
record as a youngster’ as an explanation for the police officer’s strong belief that they
has the right man after they checked his criminal record”).
Appellant cannot overcome the presumption of reasonably competent
representation in light of the silent record. If this Court chooses to address the merits
of appellant’s claim, trial counsel chose not to object to State’s Exhibit 4 because the
evidence was admissible and to further the defensive theory that although appellant
engaged in criminal behavior, nothing in his background suggested that he was violent
or had any previous association with firearms. Further, if it was error for trial counsel
to fail to object to the complained of evidence, appellant has not established that he
was prejudiced by trial counsel’s failure because his criminal history revealed no
association with firearms or violence. Appellant’s point of error should be overruled.

26
CONCLUSION
It is respectfully submitted that all things are regular and that the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/a/ Abbie Miles
ABBIE MILES
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24072240
Miles_abbie@dao.hctx.net
Curry_Alan@daohctx.net
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 7,953 words, based upon the representation provided by the word
processing program that was used to create the document.
/s/ Abbie Miles
Abbie Miles
Assistant District Attorney
27
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to the
appellant’s attorney at the following address on June 18, 2015:
Timothy Hootman
2402 Pease Street
Houston, Texas 77003
/s/ Abbie Miles
ABBIE MILES
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 024072240
Miles_abbie@dao.hctx.net
Curry_Alan@dao.hctx.net
Date: June 18, 2015
28