COURT OF APPEALS

13th SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

CASE NOs. 13-14-00677-CR, 13-14-00678-CR and

13-14-00679-CR

Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and

13-CR-3675-C 

_______________________________________________________

JOHN DOUGLAS HOUSTON 

APPELLANT

VS.

THE STATE OF TEXAS APPELLEE

Appealed from the 94th Judicial District Court

Nueces County, Texas

_______________________________________________________

APPELLANT'S BRIEF

_______________________________________________________

RANDALL E. PRETZER, PLLC

State Bar No. 16279300

P.O. Box 18993

Corpus Christi, Texas 78480

BUS: (361) 883-0499

FAX: (361) 883-2290

E-Mail: RPretzer@Clearwire.net

ATTORNEY FOR APPELLANT

ACCEPTED

13-14-00677-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

3/8/2015 11:44:41 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/9/2015 8:00:00 AM DORIAN E. RAMIREZ Clerk
i

IDENTITY OF PARTIES AND COUNSEL

JUDGE PRESIDING

THE HONORABLE BOBBY GALVAN 

94TH JUDICIAL DISTRICT COURT 

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

COUNSEL FOR THE STATE

MR. LEO HENRY GONZALEZ

ASSISTANT DISTRICT ATTORNEY

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

APPELLANT

MR. JOHN DOUGLAS HOUSTON

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

APPELLANT'S COUNSEL

MR. RANDALL E. PRETZER, PLLC

ATTORNEY FOR APPELLANT

P.O. BOX 18993

CORPUS CHRISTI, TEXAS 78480
ii

TABLE OF CONTENTS

 

Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . 1-2

STATEMENT OF FACTS . . . . . . . . . . . . . . . 2-8

SUMMARY OF THE FIRST ARGUMENT . . . . . . . . . . 8

FIRST POINT OF ERROR . . . . . . . . . . . . . . 8

FIRST POINT OF ERROR

THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE 

EVIDENCE THAT APPELLANT COMMITTED THE OFFENSES AS SET 

FORTH IN THE 

MOTIONS TO REVOKE PROBATION.

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 8-9

SUMMARY OF THE SECOND ARGUMENT . . . . . . . . . 9-10

SECOND POINT OF ERROR . . . . . . . . . . . . . 10

SECOND POINT OF ERROR

THE PUNISHMENT ASSESSED BY THE JUDGE DURING THE 

SENTENCING PHASE OF THE MOTIONS TO REVOKE 
iii

PROBATION WAS DISPROPORTIONATE TO THE 

SERIOUSNESS OF THE ALLEGED OFFENSE, ALL IN 

VIOLATION OF THE EIGHTH AND FOURTEENTH 

AMENDMENTS OF THE UNITED STATES CONSTITUTION.

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 10-20

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), TRAP . . 21
iv

INDEX OF AUTHORITIES

Cases: Page

Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App.

 1983) . . . . . . . . . . . . . . . . . . . . . . 10

Combs v. State, 652 S.W.2d 804, 806 (Tex.App.—

 Houston [1st Dist.] 1983, no pet.) . . . . . . . 10

Swenney v. State, 828 S.W.2d 254,258 (Tex. App.—

 Houston [1st Dist.] 1992) . . . . . . . . . . . . 11

Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ.

App. — Tyler 1978, writ ref'd n.r.e.) . . . . . . 11

Houston Chronicle Publishing Co. v. City of Houston,

 531 S.W.2d 177 (Tex. Civ. App. — Houston [14

th

 Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559

(Tex. 1976) . . . . . . . . . . . . . . . . . . . 11

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417,

 8 L.Ed.2nd 758 (1962) . . . . . . . . . . . . . . 11

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803)

. . . . . . . . . . . . . . . . . . . . . . . . . 12

Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909,

2925, 49 L.Ed.2d 859 (1976) . . . . . . . . . . . 13

Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861,

2866, 53 L.Ed.2d 982 (1977) . . . . . . . . . . . 13

Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.

 2d 637 (1983) . . . . . . . . . . . . . . . . . . 13

Harmelin v. Michigan, 111 S.Ct. 2680 (1991), 115

 L.Ed.2d 836 (1991). . . . . . . . . . . . . . . . 14
1

COURT OF APPEALS

13th SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

CASE NOs. 13-14-00677-CR, 13-14-00678-CR and

13-14-00679-CR

Tr.Ct.Nos. 12-CR-2404-C, 13-CR-0268-C and

13-CR-3675-C

_______________________________________________________

JOHN DOUGLAS HOUSTON 

APPELLANT

VS.

THE STATE OF TEXAS APPELLEE

Appealed from the 94th Judicial District Court

Nueces County, Texas

_______________________________________________________

APPELLANT'S BRIEF

_______________________________________________________

TO THE HONORABLE 13th COURT OF APPEALS:

STATEMENT OF THE CASE`

Previously on or about June 9, 2014, the state 

filed with the Clerk of Nueces County, Texas, Original 

Motions to Revoke Probation (MTR) under Cause Numbers

12-CR-2404-C, 13-CR-0268-C and 13-CR-3675-C. On 

September 18, 2014, the court held a hearing
2

simultaneously on all three MTR’s wherein Appellant 

pled NOT true to all four counts labeled (1), (1), (1) 

and (2) which were identical in each cause number and 

thus for efficiency Appellant will reference any page 

numbers under Cause No. 12-CR-2404-C. (RR, Vol. 1, pp.

7-11). After listening to testimony of all witnesses 

and argument from the state and Appellant, the court 

found all counts set forth under each cause number to 

be true. (RR, Vol. 3, page 77). Thereafter, the court 

sentenced Appellant to ten (10) years in prison in each 

case, all sentences to run concurrently since the court 

did not specifically order that they run consecutively.

(RR, Vol. 1, pp. 78-79).

Appellant perfected his appeal in each case by 

filing in writing his Notices of Appeal, on October 6, 

2014 under Cause Nos. 12-CR-2404-C, 13-CR-0268-C and 

13-CR-3675-C.
3

STATEMENT OF FACTS

Again, on March 27, 2012, the state filed with the 

Clerk of Nueces County, Texas, an Original Motion to 

Revoke Probation (MTR) under Cause Numbers 12-CR-2404-

C, 13-CR-0268-C and 13-CR-3675-C. 

Again, on September 18, 2014, the court held a

hearing simultaneously on all three MTR’s wherein 

Appellant pled NOT true to all four counts labeled (1), 

(1), (1) and (2) which were identical in each cause 

number and thus for efficiency Appellant will reference 

any page numbers under Cause No. 12-CR-2404-C. (RR, 

Vol. 1, pp. 7-11).

During the evidentiary hearing the state called 

several witnesses to prove those allegations to which 

Appellant pled NOT true. The first witness called by 

the state was Officer David Alfaro, who testified as 

follows: that on April 27, 2014, he was on duty with 

Officer Villagomez; that on that evening he and Officer 

Villagomez made a traffic stop with the driver of a car 
4

since that driver was in violation of the law by using 

his cell phone while operating a motor vehicle; that 

the driver was the Appellant who had no drivers license 

or proof of automobile insurance; that accordingly the 

car would be impounded and the Appellant was asked to 

step out of the car; that he conducted a “pat-down” 

search of Appellant for the possibility of any weapons; 

that he observed a clear plastic baggy on the driver’s 

side of the car which appeared to contain a crystallike material which may have been a controlled 

substance; that Officer Villagomez also found two small 

packages of possible controlled substances in the same 

car; that the officers also found another bag which 

contained synthetic marijuana; that in addition they 

found $1,038.00 in Appellant’s right rear pocket; that

there was a front passenger in the vehicle at the time 

of the stop, but that the drugs were found on the 

driver’s side of the same vehicle; that there were no 

recordings, video or audio, of this incident; and, that 

the officer did not know if the state had yet indicted 
5

the Appellant for these alleged offenses. (RR, Vol. 3, 

pp. 13-24).

Thereafter, the state called Officer Daryl Anderson

who testified as follows: that he assisted Officers 

Alfaro and Villagomez with the inventory of the car 

Appellant had driven; that he had also found a bag 

underneath the driver’s side of the vehicle; that in 

this bag he found some plastic bag, one of which 

contained a substance which field-tested for cocaine; 

that he related to the court his opinion that the 

field-test was very reliable; and, that he confirmed 

that Appellant did have cash on his person in the 

amount, more or less, as stated by the initial 

arresting officers. (RR, Vol. 3, pp. 24-31).

Thereafter, the state called its last witness, 

Officer Reynaldo Tamez, who testified as follows: that 

in July 2014 he was assisting the U.S. Marshals in 

arresting those who had outstanding warrants and who 

were classified as be violent subjects; that he 

assisted the same Marshals in pursuing Appellant, along 
6

with others, in a foot pursuit; that he apprehended 

Appellant; that in the car and trailer from which he 

fled, the Marshals found various financial instruments 

which had previously stolen from three individuals 

under burglary of their individual vehicles; that there 

was another individual who fled from the car, but he 

and the Marshals did not find him; and, that no one 

found Appellant’s fingerprints on these financial 

instruments, since neither the police nor Marshals made 

an effort to lift any print samples. (RR, Vol. 3, pp. 

31-44). 

The state then rested its case.

Appellant elected to testify and after being duly 

sworn, stated the following: that the cash found on his 

person by the police was from his paycheck that he 

earned as an electrical engineer with Central P 

Recordings; that he was paid every two weeks in a gross 

of about $1,700.00; that he knew nothing about the 

alleged illegal drugs extracted from the vehicle; that 

regarding the incident with the U.S. Marshal’s office, 
7

he had no idea who those officers were at that time, 

since they never flashed any police lights from their 

car, never showed any badges, and were not dressed in 

any uniforms which might indicate they were officers of 

the law; that one man pointed a gun at him and 

accordingly he fled in fright not wanting to be shot by 

these strange men who were not in uniform, showing any 

badges, or flashing any police lights from their 

vehicle; that when he finally saw police in uniforms

and overt identifications, he then laid on the ground 

and put his hands behind his body; that when questioned

by the state regarding the incident with the drugs in 

the car, Appellant related that the car was not his and 

that he had driven it for maybe ten (10) minutes before 

being arrested; that when he was pursued by the 

Marshals, that vehicle was not his and he had driven it 

for only a short time; and, under cross-examination by 

the state, Appellant again stated that he knew nothing 

about the stolen financial instruments and nothing 
8

about the drugs in the other vehicle. (RR, Vol. 3, pp. 

45-76).

The Appellant and state rested.

The court listen to argument from the state and

Appellant regarding findings and disposition. 

Thereafter, the court found that all counts set forth 

under each cause number to be true. (RR, Vol. 3, page 

77). Accordingly, the court sentenced Appellant to ten 

(10) years in prison in each case, all sentences to run 

concurrently since the court did not specifically order 

that they run consecutively. (RR, Vol. 1, page 78-79).

SUMARY OF THE FIRST ARGUMENT 

The state did not provide sufficient evidence to 

prove by a preponderance of such evidence that 

Appellant was, in fact, criminally involved in those 

allegations set forth in counts (1), (1), (1) and (2)

of the Motions to Revoke Probation.

FIRST POINT OF ERROR
9

THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE 

EVIDENCE THAT APPELLANT COMMITTED THE OFFENSES AS SET 

FORTH IN THE MOTIONS TO REVOKE PROBATION.

ARGUMENT AND AUTHORITIES

The honorable 13th Court of Appeals will note that 

the Appellant related in his testimony that he was, in 

fact, in the wrong place at the wrong time as rightly 

stated (admitted?) by the prosecution in his crossexamination. The Appellant testified that he was not 

the owner of the two vehicles involved in the 

allegations. Appellant specifically denied any 

knowledge of the drugs or stolen financial documents. 

Appellant never had any drugs or stolen financial 

documents on his person. Appellant fled when he a man 

pointed a gun at him, such man NOT (according to his 

testimony) being in uniform, never displaying a badge,

and never turning on police lights. Finally, Appellant 

related to the court that the $1,038.00 found in his 

back pocket was money he had earned working as an 
10

electrical engineer for a recording company. 

Accordingly, it was Appellant’s position that his 

rebuttal evidence negated any finding of TRUE under the 

standard of preponderance of evidence, all in violation 

of the 5

th and 14th Amendments of the U.S. Constitution.

SUMMARY OF THE SECOND ARGUMENT

The sentence imposed by the judge was excessive and 

disproportionate to the offenses committed in each case 

and thus violated the 8

th and 14th Amendments of the U.S. 

Constitution.

SECOND POINT OF ERROR

THE PUNISHMENT ASSESSED BY THE JUDGE DURING THE 

SENTENCING PHASE OF THE MOTIONS TO REVOKE 

PROBATION WAS DISPROPORTIONATE TO THE 

SERIOUSNESS OF THE ALLEGED OFFENSES, ALL IN 

VIOLATION OF THE EIGHTH AND FOURTEENTH 

AMENDMENTS OF THE UNITED STATES CONSTITUTION.
11

ARGUMENT AND AUTHORITIES

Appellant notes that under the previous rulings of 

the Texas Court of Criminal Appeals, an appeal prefaced 

on the grounds of disproportionate punishment may be 

frivolous. Harris v. State, 656 S.W.2d 481, 486 

(Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804, 

806 (Tex. App.-- Houston [1st Dist.] 1983, no pet.). 

However, Appellant raised this specific issue to ensure 

there was no waiver of an anticipatory claim of 

disproportionate punishment in Federal Court. See

Swenney v. State, 828 S.W.2d 254, 258 (Tex. App.—

Houston [1st Dist.] 1992). Clearly, it was within a 

court's power to review a sentence imposed by judge or 

jury and to determine whether such sentence passed 

constitutional muster, even if no objections were made 

during trial. Lovejoy v. Lillie, 569 S.W.2d 501, 503 

(Tex. Civ. App. — Tyler 1978, writ ref'd n.r.e.); 

Houston Chronicle Publishing Co. v. City of Houston, 

531 S.W.2d 177 (Tex. Civ. App. — Houston [14th Dist.] 
12

1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976). 

Accordingly, the issue was one of PROPORTIONALITY.

The Eighth Amendment of the Constitution of the 

United States provides as follows: "Excessive bail 

shall not be required, nor excessive fines imposed, nor 

cruel and unusual punishment inflicted." Robinson v. 

California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2nd 758 

(1962), held that the Eighth Amendment was 

applicable to punishments imposed by state courts 

through the Due Process Clause of the Fourteenth 

Amendment of the United States Constitution. Marbury 

v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), concluded 

that it was within the powers and duties of the 

judicial branch of our government to determine what was 

the law and whether or not a law was constitutional. 

Clearly, it was within a court's power to review a 

sentence imposed by judge or jury and to determine 

whether such sentence passed constitutional muster. 

Though the Trial Court had imposed a ten (10) year 

prison sentence under each cause number, such sentences 
13

to run concurrently, this did not mean ipso facto that 

any sentence within the range of punishment was exempt 

from constitutional scrutiny simply because that was 

what a legislative body authorized courts and juries to 

impose -– obviously such an argument is circular in its 

construction. If such were the case, then any state 

legislature could with complete impunity pass Draconian

laws, for example, that made overtime parking an 

offense punishable by life imprisonment.

In previous decisions the United States Supreme 

Court concluded that the Eighth Amendment's bar to 

cruel and unusual punishments was an evolving standard 

which proscribed needless or barbaric infliction of 

pain and sanctions which were disproportionate to the 

severity of a crime. Gregg v. Georgia, 428 U.S. 153, 

173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Coker 

v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 

L.Ed.2d 982 (1977). Accordingly, in a 1983 U.S. 

Supreme Court decision, the justices set forth certain 

standards by which appellate courts might objectively 
14

review court or jury assessed punishments to determine 

if they violated the proscriptions of the Eighth 

Amendment. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 

77 L.Ed.2d 637 (1983). The objective standards set 

forth in Solem were as follows:

1. "the gravity of the offense and the 

harshness of the penalty," 463 U.S., at 290-

291, 103 S.Ct., at 3009-3010;

2. "the sentences imposed on other criminals in 

the same jurisdiction," id., at 291, 103 S.Ct., 

at 3010; and,

3. "the sentences imposed for commission of the 

same crime in other jurisdictions," id. at 219-

292, 103 S.Ct., at 3010. 

However, in a U.S. Supreme Court decision, the 

Justices, by a 5-4 majority, chose to limit the 

application of the standards in Solem and stated that 

there was no proportionality guarantee (possibly with 

the exception of death penalty cases) in the Eight 

Amendment. Harmelin v. Michigan, 111 S.Ct. 2680 (1991), 
15

115 L.Ed.2d 836 (1991). Regardless, it was Appellant's

position that the majority in Harmelin recognized that 

indeed the Eighth Amendment provided a limited 

proportionality component when Justice Scalia stated as 

follows:

"We think it enough that those who framed 

and approved the Federal Constitution chose, 

for whatever reason, not to include within it 

the guarantee against disproportionate 

sentences that some State Constitutions 

contained. It is worth noting, however, that 

there was good reason for that choice -- a 

reason that reinforces the necessity of 

overruling Solem. While there are relatively 

clear historical guidelines and accepted 

practices that enable judges to determine which 

modes (emphasis added) of punishment are "cruel 

and unusual," proportionality (emphasis added) 

does not lend itself to such analysis. Neither 
16

congress nor any state legislature has ever set 

out with the objective of crafting a penalty 

that is "disproportionate," yet as some of the 

examples mentioned above indicate, many enacted 

dispositions seem to be so -- because they were 

made for other times or other places, with 

different social attitudes, different criminal 

epidemics, different public fears, and 

different prevailing theories of penology. 

That is not to say that there are no 

absolutes; one can imagine extreme examples 

that no rational person, in any time or place 

could accept. But for the same reason these 

examples are easy to decide, they are certain 

never to occur (emphasis added). Harmelin, at 

111 S.Ct., at 2696-2697.

Appellant concedes that Harmelin, may have 

narrowed, though not necessarily eliminated, the 

proportionality component of the Eighth Amendment. 
17

However, Harmelin did not provide any new objective 

standards by which to review and reverse those 

"examples" which "are easy to decide" other than 

Justice Kennedy’s conclusion that the first objective 

standard in Solem (the gravity of the offense and the 

harshness of the penalty) shall be the initial hurdle 

that a reviewing court must overcome before ever 

considering the remaining standards two and three in 

Solem. Harmelin, 111 S.Ct., at 2707. Accordingly, 

Appellant contends that in reality Harmelin has no 

language prohibiting appellate courts from reviewing 

the constitutionality of a particular punishment in the 

light of concepts of proportionality set forth in 

Solem. To contend now that proportionality was now so 

narrow that it was without meaning (with the exception 

of death penalty cases, Harmelin at 111 S.Ct. at 2701), 

that lawmakers may run amok enacting reactionary 

legislation, and that judges or juries may impose 

sentences with absolute immunity from judicial review, 

was difficult to comprehend when you consider our 
18

national and historical deference to fundamental 

governmental concepts of separation of powers, and 

checks and balances.

The concept of proportionality was ancient and 

fundamental to the jurisprudence of emerging world 

civilizations. The concept of limiting the penal 

sanction through proportionality predates Magna Carta

or English Common Law and can be found in the Code of 

Hammurabi which placed limits on punishment by 

proscribing an eye for an eye, a tooth for a tooth, or 

more concisely: no more than an eye for an eye, and no 

more than a tooth for a tooth. Accordingly, Appellant 

contended that despite the 5-4 decision in Harmelin, 

the appellate courts should examine case law that 

attempted to provide rational standards for reviewing 

particular punishments in determining whether 

particular penal sanctions were disproportionate to the 

severity of a particular crime. 

As previously mentioned, the United States Supreme 

Court in Solem established three major factors for 
19

consideration and application in determining whether a 

punishment violated the Eighth Amendment's "cruel and 

unusual" proscriptions. In Appellant's particular case, 

the punishment assessed by the court of a ten (10) year 

prison sentence under each cause number, such sentences 

to run concurrently, was excessive and clearly should 

be reserved for more heinous offenders so that such a 

sanction was meaningful under concepts of retribution 

and deterrence. 

If this honorable Court of Appeals applied the 

facts of Appellant's case to those three standards set 

forth in Solem it could move through the first 

threshold standard (the gravity of the offense and the 

harshness of the penalty -- now required by Harmelin); 

find that proportionality was an issue; conclude that 

statistically intrastate sentences, from judges or 

juries, would not be as harsh; and, further conclude 

that the same intrastate statistics would apply to 

interstate sentences.
20

The Court's imposition of a ten (10) year prison 

sentence under each cause number, such sentences to run 

concurrently, violated the punishment proscriptions of 

the Eighth Amendment of the United States Constitution 

as applied to the various States by the Fourteenth 

Amendment, and warrants at least a new punishment 

hearing for Appellant in the trial Court. Again, this

honorable Court of Appeals will recall that during the 

findings phase of the hearing that the court could have 

found that Appellant’s rendition of the drug case and 

then the financial instruments case were not 

unreasonable and constituted his version of the events 

wherein he was in fact in the wrong place at the wrong 

time – a predicament that many individuals have 

experienced. Regardless, the Appellant had been on 

community supervision for a very short period of time 

and considering his not irrational version of the 

events he should be returned to community supervision 

and placed on intensive supervision for probable 

substance abuse issues.
21

PRAYER FOR RELIEF

For ALL the reasons stated above, Appellant 

respectfully requests that the honorable 13th Court of

Appeals reverse the trial court’s judgment, set aside 

the sentence of Appellant, and remand the case back to 

court for a new sentencing hearing, or reverse the 

sentencing portion of the trial and render an order 

returning Appellate forthwith to probation status under 

any terms and conditions set by the trial court to 

include intensive supervision for probably substance 

abuse issues.

RESPECTFULLY SUBMITTED:

 /S/ Randall E. Pretzer 

 Randall E. Pretzer, PLLC 

 Attorney for Appellant

 State Bar No. 16279300

 P.O. Box 18993

 Corpus Christi, Texas 78480

 BUS: (361) 883-0499

 FAX: (361) 883-2290

 E-Mail: RPretzer@Clearwire.net

CERTIFICATE OF SERVICE
22

I certify that a true and correct copy of 

Appellant's Brief was delivered to Nueces County 

District Attorney’s Office, 901 Leopard Street, Corpus 

Christi, Texas 78401, by hand-delivery on February 10, 

2015. 

 /S/ Randall E. 

Pretzer

Randall E. Pretzer, 

PLLC 

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

UNDER RULE 9.4 (i), TRAP

Please be advised that in compliance with Texas 

Rule of Appellate Procedure 9.4(i)(3), as amended, I 

certify that the number of words in this brief, 

excluding those matters listed in Rule 94 (i)(1), is 

2,979 as per the computer count.

/S/ Randall E. 

Pretzer

Randall E. Pretzer, 

PLLC 

Attorney for Appellant