No. 03-15-00110-CR

IN THE THIRD COURT OF APPEALS 

AT AUSTIN, TEXAS 

THOMAS KRAUSZ 

v.

THE STATE OF TEXAS 

On Appeal from 299TH District Court 

Of Travis County, Texas 

Honorable KAREN SAGE, County Court Judge Presiding 

APPELLANT’S BRIEF

 Cherie A. Ballard 

 Ballard & Mullowney, P.C. 

 Attorney for Appellant 

 900 Ranch Road 620 South 

 Suite C101-205 

 Austin, Texas 78734 

 (512) 261-9541 

 (512) 261-9570 fax 

State Bar Number 01650010 

ORAL ARUGMENT REQUESTED 

ACCEPTED

03-15-00110-CR

5871553

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/29/2015 6:30:53 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/29/2015 6:30:53 PM JEFFREY D. KYLE Clerk
Identity of Parties and Counsel

No. 03-15-00110-CR

Thomas Krausz v. The State of Texas

Thomas Krausz, Appellant

Thomas Krausz

Travis State Jail

Austin, TX

Trial Counsel

John F. Campbell

SBN:03709000

4408 Spicewood Springs Road

Austin, Texas 78759

Appellate Counsel

Cherie A. Ballard

SBN: 01650010

Ballard & Mullowney, P.C.

900 Ranch Road 620 South

Suite C101-205

Austin, Texas 78734

Trial and Appellate Counsel for the State of Texas, Appellee

Stephanie Kate Sweeten

Assistant District Attorney

SBN: 34060693

Allison Blair Wetzel

Assistant District Attorney

SBN: 02413500

Rosemary Lehmberg

Travis County District Attorney

P.O. Box 1748

Austin, Texas 78767

i
Table of Contents

Identity of Parties and Counsel ............................................................ i

Table of Contents ........................................................................... ii

Index of Authorities .....................................................................iii, iv

Points of Error

Point of Error 1:

The trial court erred in sustaining the State's objection to Defendant's exhibit 1and 

as a result committed constitutional error requiring a reversal under Rules of 

Appellate Procedure Rule 44.02 (a)..............................................................v

Point of Error 2:

The verdict is not supported by legally sufficient evidence to sustain the 

Appellant’s conviction for possession of a prohibited weapon ......................v

Statement of the Case ..................................................................vi-vii

Statement of Facts ....................................................................vii-viii

Summary of the Argument ................................................................viii

Arguments and Authorities ...........................................................1 - 12

Conclusion ..................................................................................12

Prayer for Relief ...........................................................................13

Certificate of Compliance ................................................................14

Certification of Service ....................................................................14

ii
Index of Authorities

Statutes

Art. 15.05 (2) Code of Criminal Procedure .....................................8

Rule 44.2(a) of the Texas Rules of Appellate Procedure .........4,12

Texas Rule of Evidence 702 ..........................................................10

Texas Rule of Evidence 801(e)(2) ...................................................3

TEX. PENAL CODE ANN. Section 46.05 (a)(4) (Vernon 1994) .12

TEX. PENAL CODE ANN. Section46.01 (4) ........................12

Cases

Adair v. State, 03-11-00318-CR, Court of Appeals of Texas, 

Third District, Austin, 2013 ........................................................ 2,4

Arcement v. State, 06-08-00130, 6th District Court of Appeals -

Texarkana (unpublished opinion) .....................................................9

Badasa v. Mukasey, 540 F.3d 909,910-11 (8th Cir. 2008)..........8

Cortez v. State, 091411 Tex. Crim. App. - 76,101 

(unpublished opinion, 2011)........................................................10

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) ......3,4

Freeman v. State, 230 S.W. 3rd 392 (Tex. App. -Eastland 2007)...10

Goonan v. State, 334 S.W. 3rd 357 (Tex. App. - Forth Worth 2011).10

Hammer v. State, 296 S.W.3d 555, 561 (Tex.Crim.App. 2009)..........5

Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989...........2

iii
Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003)......10

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 

(1979)............................................................................................11

In Li v. Holder No. 09-60551, (United States Court of Appeals, 

Fifth Circuit) ...................................................................................8

McCormick v. State, 10-11-00128, 10th District Court of Appeals

- Waco, (unpublished opinion) ......................................................9 

Martinez v. State, 924 S.W. 2d 693,696 (Tex. Crim. App. 1996).11

McDonald v. State, 179 S.W. 3rd 571, 576 (Tex. Crim. App. 

2005).........................................................................................2

Miles v. State, 357 S.W. 3d 629 (Tex. Crim. App. 2011) .........9

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) .2

Nwosoucha v. State, 325 S.W. 3rd 816 (Tex. App. - Houston [14th District] 

2010)..................................................................................................10

Potier v. State, 68 S.W.3d 657, 665 (Tex.Crim.App. 2002)...............5

Ramos v. State, 245 S.W.3d 410, 417-18 

(Tex. Crim. App. 2008)........................................................1

Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 2005) ...........5

Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006)..2

Watson v. State, 204 S.W. 3rd 404 (Tex. Crim. App. 2006)..........9

Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).......2

Wilson v. State, 451 S.W.3d 880 (Tex.App.-Houston [1st Dist.] 2014) .5

iv
Points of Error

Point of Error 1:

The trial court erred in sustaining the State's objection to Defendant's exhibit 1and 

as a result committed constitutional error requiring a reversal under Rules of 

Appellate Procedure Rule 44.02 (a)

Point of Error 2:

The verdict is not supported by legally sufficient evidence to sustain the 

Appellant’s conviction for possession of a prohibited weapon.

v
No. 03-15-00110-CR

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

THOMAS KRAUSZ

v.

THE STATE OF TEXAS

On Appeal from 299TH District Court

Of Travis County, Texas

Honorable KAREN SAGE, County Court Judge Presiding

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

Statement of the Case

This is an appeal from a criminal bench trial in which the Defendant plead 

not guilty to the offense of Possession of a Prohibited Weapon under section 

vi
46.05(a)(4) of the Texas Penal Code and plead guilty on Burglary of a Habitation, 

under section 30.02 of the Texas Penal Code, and Theft of a Firearm, under section 

31.02(e)(4)(C) of the Texas Penal Code. Judge Sage found the Appellant guilty of 

all charges and assessed punishment of five years in the Institutional Division of 

the Texas Department of Corrections for the Possession of a Prohibited Weapon, 

sixteen years in the Institutional Division of the Texas Department of Corrections 

for the Burglary of a Habitation and two years in State Jail on the Theft of a 

Firearm.

Appellant Waived his right to appeal the convictions on the Burglary of a 

Habitation and the Theft of a Firearm. Appellant is appealing the conviction and 

the punishment assessed on the Possession of a Prohibited Weapon charge. 

Statement of Facts

In a trial before the Court, Appellant plead guilty to the offense of Burglary 

of a Habitation (R.R. Vol. 2, page 10, line 15) and Theft of a Firearm (R.R. Vol. 2. 

page 10, line 20) Appellant plead not guilty to the offense of possession of a

prohibited weapon: firearm silencer under TEX. PENAL CODE ANN. Section 

46.05(a)(4). (R.R. Vol. 2, page 11, line 17.)

vii
Appellant waived his right to appeal on the Burglary of a Habitation case 

and on the Theft of a Firearm case. Appellant did not waive his right to appeal on 

the instant case (C.R. page 46).

On October 9, 2013, Appellant was arrested for Burglary of a Habitation and 

Theft of a Firearm charges. He was arrested in his vehicle: a black Chevy 

Trailblazer (R.R. Vol. 2, page 105, line 1) An inventory search was conducted on 

(R.R. Vol. 2, page 101, line 5). A number of items from the back of the 

Appellant's car were tagged as evidence and photographed by an Austin Police 

Department crime scene specialist. (R.R. Vol. 2, pages 104 - 106) The items 

photographed included a water bottle with black electrical tape. (R.R. Vol. 2. page 

105, lines 14-21) (R.R. Vol. 4, State's exhibits 58, 60, 70, 76-79) This water bottle 

with black electrical tape is the subject of the charge of Possession of a Prohibited 

Weapon: a firearm silencer charge.

Summary of the Argument

Appellant asserts that the trial court erred in finding him guilty of the 

charge of Possession of a Prohibited Weapon: a firearm silencer. Appellant 

asserts that there is insufficient evidence to support the verdict Appellant 

believes that the verdict should be overturned. The Appellant further asserts 

viii
that the Court committed reversible error in sustaining the State's hearsay 

objection to the Defense Exhibit 1 and committed error that was calculated 

to cause and probably did cause the rendition of an improper judgment. 

Further the verdict was not supported by legally sufficient evidence.

ix
Argument and Authorities

Point of Error 1:

The trial court erred in sustaining the State's objection to Defendant's exhibit 1and 

as a result committed constitutional error requiring a reversal under Rules of 

Appellate Procedure Rule 44.02 (a)

In this trial before the Court, Judge Sage excluded evidence proffered by the 

Appellant's trial counsel. This excluded evidence was the Austin Police 

Department (APD) lab report on the "water bottle with black electrical tape". (R.R. 

Vol. 2. page 105, lines 14-21) (R.R. Vol. 4, Defendant's exhibit 1). Appellant's 

trial counsel attempted to enter Defendant's exhibit 1 while cross examining the

State's witness Officer Adrian Chopin. The State objects to the APD lab report as 

hearsay (R.R. Vol. 2, page 124, lines 21-23). Appellant's trial attorney asserts that 

it is admissible as the report is a document provided to the Defendant by the State 

in discovery (R.R. Vol. 2, page 125, lines 3-5). The Judge then rules on the State's 

objection stating that, :"...under Crawford, it is clearly not admissible and is 

hearsay. So the State's objection is sustained". (R.R. Vol. 2, page 125, lines 12-14.)

The review of a trial court's decision to exclude evidence was proper is 

whether or not the judge abused her discretion on making the complained upon 

ruling. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test 

1
for abuse of discretion is whether the trial court acted arbitrarily or unreasonably,

without reference to any guiding rules or principles. Montgomery v. State, 810 

S.W.2d 372, 380 (Tex. Crim. App. 1990) and Shuffield v. State, 189 S.W.3d 

782, 793 (Tex.Crim.App. 2006).

In Adair v. State this Court stated, citing McDonald v. State, 179 S.W.3d 

571, 576 (Tex. Crim. App. 2005), that a trial court abuses its discretion only when 

its decision "is so clearly wrong as to lie outside that zone within which reasonable 

persons might disagree." Adair v. State, 03-11-00318-CR, Court of Appeals of 

Texas, Third District, Austin, 2013. In harmless error review, the appellate court 

"should calculate as much as possible the probable impact of the error on the jury

in light of the existence of other evidence". Wesbrook v. State, 29 S.W.3d 103,

119 (Tex. Crim. App. 2000); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. 

App. 1989). In the instant case, Appellant strongly believes that the evidence 

supports that the trial court "acted arbitrarily or unreasonably without reference to 

any guiding rules or principles" and was "so clearly wrong as to lie outside that 

zone within which reasonable persons might disagree".

The Trial Court erred in ruling that the APD lab report was hearsay. This

2
document is not hearsay it is an admission by a party opponent under Texas Rules 

of Evidence Rule 801(e)(2). By definition, a statement is not hearsay if the 

statement is offered against a party and is that party's own statement. 

 Texas Rule of Evidence 801(e)(2) provides that a statement that meets 

the following conditions is not hearsay:

(A) the party's own statement in either an individual or representative 

capacity;

(B) a statement of which the party has manifested an adoption or belief 

in its truth;

(C) a statement by a person authorized by the party to make a statement 

concerning the subject;

(D) a statement by the party's agent or servant concerning a matter within 

the scope of the agency or employment, made during the existence of the 

relationship; or

(E) a statement by a co-conspirator of a party during the course and in 

furtherance of the conspiracy.

 Tex.R. Evid. 801(e)(2)(A)-(E).

The APD lab report, Defendant's exhibit 1 meets all the criteria for a statement 

against a party-opponent. It was a document created by the Austin Police 

Department Forensic Science Services Division employee made in the scope of the 

employee's scope of employment and was authorized to make such a statement or 

document and which the State manifested an adoption or belief in its truth because 

it was provided to the Appellant is discovery, presumably as exculpatory evidence.

3
Further the Trial Court erred in citing Crawford v. Washington, 541 U.S. 

36, 124 S.Ct. 1354 (2004) as the reason this document was not allowed to be 

presented to the fact finder. As this Court well knows, Crawford v. Washington

addresses the admissibility of out-of-court statements based upon the accused’s 

Sixth Amendment right to confrontation not the State. Crawford cannot be used by 

the State to exclude evidence that does not support its theory of the case. The Trial 

Courts exclusion of Defendant's exhibit 1 was "so clearly wrong as to lie outside 

that zone within which reasonable persons might disagree". Adair v. State

Although no formal offer of proof is reflected in the record of this trial, 

Appellant asserts that his trial counsel did ensure that the record indicated what the 

excluded evidence would have been as Defendant's exhibit 1 is found in the 

Reporter's Record. (R.R. Vol. 4, Defendant's exhibit 1) and this Court can review 

the excluded evidence and do its duty in calculating "as much as possible the 

probable impact of the error on the jury in light of the existence of other 

evidence". Although there was no jury in the instant case, the Judge was the fact 

finder and did not have the benefit or reviewing the APD lab report in determining

in guilt or innocence of the Appellant.

In addition to the case law discussed, the Texas Rules of Appellate 

Procedure addresses this issue. Rule 44.2(a) of the Texas Rules of Appellate 

4
Procedure states:

Constitutional Error. If the appellate record in a criminal case reveals 

constitutional error that is subject to harmless error review, the court 

of appeals must reverse a judgment of conviction or punishment 

unless the court determines beyond a reasonable doubt that the error 

did not contribute to the conviction or punishment.

In Wilson v. State, 451 S.W.3d 880 (Tex.App.-Houston [1st Dist.] 2014) , the 

Court discusses the meaning of the term constitutional error:

 "Generally, the erroneous admission or exclusion of evidence is 

nonconstitutional error . . . ". Erroneous exclusion of evidence can rise to the 

level of constitutional error, however, when the excluded evidence " forms 

such a vital portion of the case that exclusion effectively precludes the 

defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 665 

(Tex.Crim.App. 2002), Hammer v. State, 296 S.W.3d 555, 561 

(Tex.Crim.App. 2009). 

Appellant was denied the his constitutional right to presenting a defense. The APD 

lab report includes information that would support that the plastic bottle with black 

tape was not consistent with a device used as a firearm silencer as it did not have a

5
method of attachment and that the item or device was presumably never used as a 

firearm silencer because the item "tested negative for the presence of lead, a key 

component in gunshot residue." (R.R. Vol. 4, Defendant's exhibit 10). This 

evidence "goes to the heart" of the Appellant's defense See Ray v. State, 178 

S.W.3d 833, 836 (Tex.Crim.App. 2005) and as such the trial court committed 

reversible error in denying the admission of Defendant's exhibit 1. Appellant 

asserts that the Court committed error and that the error probably caused the 

rendition of an improper judgment in that the Appellant was denied the 

presentment of evidence which supported his defense: that the plastic bottle with 

black tape was not a firearm silencer.

Point of Error 2:

The verdict is not supported by legally sufficient evidence to sustain the 

Appellant’s conviction for possession of a prohibited weapon

The State in the trial in the instant case, called two Austin police 

officers, Adrian Chopin and David Smith to elicit their opinion testimony 

regarding whether the plastic bottle with black tape was a firearm silencer. (R.R. 

Vol. 2, pages 112 -151). Appellant asserts that the testimony of these two offers 

was insufficient to establish that the plastic bottle was a device designed, made, or 

adapted to muffle the report of a firearm. Under the Texas Rules of Evidence Rule 

701 for witnesses not testifying as experts the opinion testimony is limited to one 

6
that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue. Officer 

Chopin's testimony regarding whether the water bottle with black tape was a 

firearms silencer went far beyond anything based on his own perception.

The Trial Court in announcing her verdict, stated that Officer Chopin and 

Detective Smith were firearms experts (R.R. Vol. 2, page 223, lines 6 - 11). 

Appellant alleges that Officer Chopin and Detective Smith were not qualified to 

express an expert opinion regarding the ultimate issue of the case. The record 

does not reflect that Officer Chopin has the technical or specialized knowledge to 

testify as to the ultimate issue of the case. The record shows his experience in his 

police training and the fact that he is a federal firearms licensee apparently gave 

him the knowledge to identify the water bottle as a firearm silencers. (R.R. Vol. 2, 

page 15.) The record reflects that Detective Smith's knowledge regarding firearm 

suppressors was a result his experience as a firearms instructor and police officer. 

(R.R. Vol. 2, page 143, line 13 -23). Further, Appellant alleges that the 

information these witness had regarding firearm silencers was acquired from the 

Affidavit of Warrant for Arrest and Detention for Possession of Prohibited Weapon 

(firearm silencer). The affidavit for Warrant of Arrest and Detention for 

Possession of Prohibited Weapon (firearm silencer), (C.R. , Vol. 1, pages 5 - 8) 

7
cites Wikipedia to explain the purpose of a firearm silencer or suppressor. 

Additionally, the affidavit includes a cut and paste drawing or diagram of a BR 

Tuote Reflex Rifle Suppressor Cross-section. The Appellant discovered the 

presumed origin of the document

(https://commons.wikimedia.org/wiki/File:ReflexSuppressor-WP-Drwg.png) on 

Wikimedia Commons which is a media file repository. On its Welcome page, 

Wikimedia Commons notes that "it uses the same wiki-technology as Wikipedia 

and everyone can edit it." 

(https://commons.wikimedia.org/wiki/Commons:Welcome)

The Appellant argues that Wikipedia and Wikimedia are not reliable 

resources to provide a sufficient factual basis to determine that the item in question 

was a firearm silencer as defined by the Texas Penal Code.

Per Article 15.05 (2) of the Code of Criminal Procedure, a complaint, which 

is the basis of an affidavit of Warrant for Arrest, must show that the accused has 

committed some offense against the laws of the State of Texas either directly or 

that the affiant has good reason to believe and does believe that the accused 

committed such offense. The affiant cannot and should not be allowed to come to 

the belief that the Appellant possessed a firearm silencer based on information 

from Wikipedia and/or Wikimedia Commons.

8
In Li v. Holder No. 09-60551, (United States Court of Appeals, Fifth 

Circuit), a petition for review and order of the Board of Immigration Appeals 

ruling, the Fifth Circuit determined that the use of Wikipedia was not sufficiently 

reliable source to show risk of future persecution by the individual seeking asylum 

in the case. The Court further noted that "[W]e agree with those courts that have 

found Wikipedia to be an unreliable source of information" and cited Badasa v. 

Mukasey, 540 F.3d 909,910-11 (8th Cir. 2008). The Badasa case, the Department 

of Homeland Security (DHS) used information from Wikipedia to explain and 

identify a type of document that was at issue in the case to an Immigration Judge. 

The Court goes on at length about concerns regarding the reliability of Wikipedia, 

stating the Wikipedia describes itself as "the free encyclopedia that anyone can 

edit" also noting that Wikipedia acknowledges that the "website's radical openness 

means that any given article may be, at any given moment, in a bad state: for 

example, it could be in the middle of a large edit or it could have been recently 

vandalized." Badasa v. Mukasey at 911. Wikipedia has been cited in a number of 

Texas appellate decisions, primary for the purpose of defining, explaining words, 

phrases or slang. In Miles v. State, 357 S.W. 3d 629 (Tex. Crim. App. 2011) the 

Court notes in a footnote that Wikipedia is "perhaps an acceptably authoritative 

source for street language or matters of current affairs in regards to certain 

9
subcultures. Miles v. State at 645. In Watson v. State, 204 S.W. 3rd 404 (Tex. 

Crim. App. 2006) in a footnote of this opinion Wikipedia was used to explain the 

term "faro" as a card game popular in the 19th Century. In McCormick v. State, 

10-11-00128-CR an unpublished opinion out of the 10th District Court of Appeals 

- Waco, Wikipedia was used in a footnote to identify and define the term K2. In 

Arcement v. State, 06-08-00130 and unpublished opinion out of 6th District Court 

of Appeals - Texarkana, the court used Wikipedia in a footnote to define and 

explain the website MySpace. A survey of the Texas opinions referring to or citing 

Wikipedia shows that these references are not used for information requiring 

technical or specialized knowledge. See Freeman v. State, 230 S.W. 3rd 392 (Tex. 

App. -Eastland 2007), Goonan v. State, 334 S.W. 3rd 357 (Tex. App. - Forth Worth 

2011), Cortez v. State, 091411 Tex. Crim. App. - 76,101 (unpublished opinion, 

Court of Criminal Appeals Sept. 14, 2011) and Nwosoucha v. State, 325 S.W. 3rd 

816 (Tex. App. - Houston [14th District] 2010).

To admit expert testimony, Rule 702 requires (1) the witness be qualified by 

knowledge, skill, experience, training, or education, (2) the proposed testimony be 

scientific, technical, or other specialized knowledge, and (3) the testimony assist 

the trier of fact to understand the evidence or to determine a fact in issue. 

10
Tex. R. Evid. 702

The record reflects, as a result of the use of Wikipedia as source material, 

that the witnesses were not qualified by, knowledge, skill, experience, training, or 

education to testify to the ultimate issue: whether the plastic bottle was a firearm 

silencer and that the Appellant intended to use it for that purpose. Appellant 

further asserts that Officer Chopin and Detective Smith's testimony was not 

reliable and therefore inadmissible and that the trial judge abused her discretion in 

admitting the "expert" testimony of Officer Chopin and Detective Smith. See 

Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003).

A legal sufficiency review the evidence must be viewed in the light most 

favorable to the verdict. Martinez v. State, 924 S.W. 2d 693,696 (Tex. Crim. App. 

1996). The issue is whether any rational trier of fact could find the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). Appellant contends that any rational 

trier of fact would not find the essential elements of the crime beyond a reasonable 

doubt with the evidence presented at Appellant’s trial.

Finally, both Officer Chopin and Detective Smith testified what the bottle 

with black tape was in their opinion. Officer Chopin testified that the bottle in 

question was baffled. That baffling is the bottles stacked in a series and that usually

11
firearm silencers have six baffles. (R.R. Vol. 2, page 116, line 21-25). Detective 

Smith testified that the bottle at issue had three chambers. The Court in her ruling 

made a finding that there were "at least two chambers." (R.R., Vol. 2, page 15-20) 

and that the testimony of Officer Chopin and Detective Smith indicated that 

several chambers would be required to muffle the sound of a gun being fired.

Appellant suggests that two chambers or baffles, as the Court found the bottle to 

have is insufficient per the testimony she relied upon to make the determination 

that the bottle was in fact a firearm silencer.

In this case the State was required to prove beyond a reasonable doubt that 

the (1) Appellant (2) intentionally or knowingly (3) possesses, manufactures, 

transports, repairs, or sells a firearm silencer. TEX. PENAL CODE ANN. Section 

46.05 (a)(4). Appellant contends that the State failed in its burden because it failed 

to establish any intent of Appellant by direct or circumstantial evidence also the 

State failed in its burden to prove that the item in question was a firearm silencer as 

defined by the Texas Penal Code section 46.01(4). 

Conclusion

The trial court made an constitutional error by denying Appellant the 

opportunity to present evidence to support his theory of the case: that the water 

12
bottle with black tape was not a firearm silencer and was never intended to be used 

as one. The Court's erroneous ruling on sustaining the State's objection to the 

admissibility of Defendant's exhibit 1 requires this court to reverse the verdict 

pursuant to the Rules of Appellate Procedure, Rule 44.2(a) 

Appellant asserts that there is insufficient evidence to support the

verdict. The expert witnesses may have used or been influenced by 

information or data obtained by a totally unreliable source: Wikipedia and 

that the Court in her findings determined the bottle was a firearm silencer 

because it had "at least two chambers" when the evidence reflected, that 

there needed to be at least three chambers or baffles and that usually there 

are six baffles or chambers.

Appellant believes that the verdict should be overturned. 

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays 

that this Court overturns the finding of guilt and provides any remedy, in law or

equity, in which this Court determines is necessary to ensure that justice is done.

13
Respectfully submitted,

___/s/ Cherie Ballard

Cherie A. Ballard

SBN: 01650010

Ballard & Mullowney, P.C.

900 Ranch Road 620 South

C 101-205

Austin, Texas 78734

(512) 261-9541

(512) 261-9570 fax

cherieballard@austin.rr.com

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 4,247 

words. This is a computer-generated document created in Microsoft Word, using 

14-point typeface for all text. In making this certificate of compliance, I am relying 

on the word count provided by the software used to prepare the document.

__/s/ Cherie A. Ballard

Cherie A. Ballard

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this corrected document was 

served via fax upon an attorney for the State, Kathryn A. Scales at 

Kathryn.Scales@co.travis.tx.us on June 25, 2015.

___/s/ Cherie A. Ballard 

Cherie A. Ballard

14