No s. 06- 14

- 00 164- CR

In the Sixth Court of Appeals at Texarkana, Texas

_______________________ Christopher Neal McGonigal
, Appellant,

v.

The State of Texas, Appellee.

_______________________________ On Appeal from the 6 th District Court of Red River County Hon. Eric Clifford, Presiding

_______________________________ A PPELLANT ’ S B RIEF

Don Biard State Bar No. 24047755 Counsel for Appellant

ORAL ARGUMENT NOT REQUESTED ACCEPTED 06-14-00164-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/31/2014 4:09:13 PM DEBBIE AUTREY

CLERK1 I DENTITY OF P ARTIES AND C OUNSEL

Defendant Below Appellant in this Cou rt

Christopher Neal McGonigal

Counsel for Appellant: Don Biard (on appeal) State Bar No. 24047755 38 First Northwest Paris, Texas 75460 Tel: (903)785

- 1606 Fax: (903)785

- 7580 Email: dbiard@att.net

Dan Meehan (at trial) State Bar No. 13898700 202 West Madison Clarksville, Texas 75426 Tel: (903)427

- 4547 Fax: (903)427

- 4549

Appellee in this Court

The State of Texas

Counsel for Appellee: Hon. Val Varley State Bar No. 20496580 Red River County Attorney’s Office 400 North Walnut Clarksv ille, Texas 75426 Tel: (903)427

- 2009 Fax: (903)427

- 53162 T ABLE OF C ONTENTS

Identity of Partie s and Counsel...........................................

............... ......1

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

......... ............... ....2

Index of Authorities...................................................

......... ............. 3

- 4

Issue s Presen ted.......................................................

. ... ......... .. .... ... ...... 5

Summary of the Argument...

.................................................................................. ... 6

Statem ent of the Case..........................................

. ............ .................. 8

Procedural His tory..........................................

. .............. ... ......... ... ... ... 9

Facts......

............................................................................... .. 10

- 11

Argument and Authori ties.............................................

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

- 2 4

Prayer...

........................ ............................................. ............ .. .... 2 4

Certificate of Se rvice................................................

......................... 2 5

Certificate of Comp liance With Rule 9.4(i)(3)..............

.... ........ .............................. 2 63 I NDEX OF A UTHORITIES

Caselaw

Banks v. State
, 158 S.W.3d 649 , 651 (Tex. App.

– Houston [14 th Dist.] 2005), pet. ref ’ d

...................... .................................................................... ............................... 2 2
Bradley v. State, 5 64 S.W.2d 727 (Tex.Cr.App.1978)

... ......................................... 1 8
City of Keller 168 S.W.3d 802, 813 (Tex. 2005).

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

Cortez v. State
, 571 S.W.2d 308 (Tex. Crim. App. 1978).

................ ...................... 2 2

Franco v. State
, 552 S.W.2d 142 (Tex. Crim. App. 1972).

..................................... 1 5
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct . 1756, 36 L. Ed. 2d 656 (1973)

.. ...... 1 8

Hacker v. State
, 389 S.W. 3d 860, 864 (Tex. Crim. App. 2013)

... ................ .......... 12
Long v. State , 590 S.W.2d 138 (Tex. Crim. A pp. 1979)

... ...... ................. .......... 1 8 ,2 1
Marathon Corp v. Pitzner
, 106 S.W.3d 724, 728 (Tex. 20 03).

............................... 12
Montgomery v. State
, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991)

.. ................. .. 1 9

Prince v. State
, 503 S. W.2d 777 (Tex. Crim. App. 1974)

. .. .................................... 1 7

Scamardo v. State, 5 17 S.W.2d 293 (Tex.Cr.App.1975)....

.................................... 1 8

Willis v. State
, 2 S.W. 3d 397 (Tex. App.

– Austin 1999) , no pet.

..................... 1 6 ,1 74 Rules of Evidence

Tex. R. Evid. 410

. .................................................................................................... 15

Tex. R. Evid. 801

.... ................................................................................................. 20

Tex. R. Evid. 802

.................................... ................................................................. 20

Tex. R . Evid. 803

.... ................................................. ........................................... 17
, 20

Tex. R. Evid. 902

... .................................................................................................. 2 1

Rules of Proced u r e

Tex. R. Crim. Pro. 27.02...........

............................................................................... 13
Secondary Sources

George E. Dix & Robert O. Dawson , Criminal Practice and Procedure, §40.86

.. 1 65 I SSUE S P RESENTED

I. Whether the evidence is insufficient to support the trial court’s judgment revoking Appellant ’ s deferred adjudication community supervision and adjudicating Appellant guilty of the underlying offense ?

II. Whether the trial court erred in admitting hearsay evidence?6 S UMMARY OF THE A RGUMENT

The state filed a motion to revoke Appellant ’ s deferred adjudication community
supervision. The only allegation contained in the state ’ s motion was that Appellant

had committed the offense of Driving While Under the Influence of Drugs or
Alcohol in Montgomery County, Kansas on or about May 9, 2014. The state
presented two pieces of evidence to meet its burden of proof on this allegation.

First, the state offered a “ Defendant ’ s Acknowledgment of Rights and Entry

of Plea ” from a Kansas court signed by Appellant. This document did not specify
what type of plea Appellant was enter ing, what offenses he may have been
pleading to, when those offenses may have occurred, or where those offenses may

have occurre d.
Next, the state offered an Inmate Booking Sheet from the Montgomery
County, Kansas Sheriff ’ s Office. This document showed only Appellant ’ s
physical description, arrest date
, and the offense with which he was charged. It

contained no other information about the offense.
These two pieces of evidence are insufficient to prove by a preponderance of
the evidence that Appellant committed the offense a lleged in the motion to revoke

. Further, the Inmate Booking Sheet was inadmissible hearsay evidence. Not
only is it hearsay, but t his document contains observations of law enforcemen t7

personnel and is not authenticated. The trial court erred by admitting it over
defense objecti on.8 S TATEMENT OF THE C ASE

Nature of the Case: Motion to Revoke Deferred Adjudication Community Supervision and Adjudicate Guilt on one charge of Indecen cy with a Child.

Trial Court: The Honorable Eric Clifford 6 th District Court, Red River County, Texas

Trial Court Disposition: The trial court revoked Appellant ’ s community supervision, adjudic ated Appellant guilty on the charge of Indecency with a Ch ild
, and sentenced Appellant to 2 0 years’ im prisonment.9 P ROCED URAL H ISTORY 1

On February 19, 2013
, Appellant , Christopher Neal McGonigal
, was placed on
deferred adjudicati on community supervision for one charge of indecency with a

child

. 2 On June 2, 2014 , the state filed a motion t o adjudicate guilt

. 3

A hearing w as held on the motion on August 28, 2014. 4 The trial court
adjudicated McGonigal guilty of the charge of indecency wi th a child and
sentenced McGonigal to serve a 20 year term

. 5 McGonigal timely filed notice of
appeal. 6

1 All references to the record on appeal are made in the following manner: CR pg.# and RR, pg.#. CR designates the Clerk’s Record a nd RR designates the Reporter’s Record, followed by the particular page in that record. RR Ex.# designates a particular exhibit in the Repor ter’s Record. 2 C R pg. 65 3 CR pg. 109 4 RR pg. 1 5 CR pg. 131 6 CR pg. 12310 F ACTUAL B ACKGROUND

The sole ba sis of the state’s motion to adjudicate guilt was an allegation that
McGoniga l h ad committed the offense of D riving U nder the I nfluence of A lcohol

or D rugs in Montgomery County, Kansas on or about May 9, 2014. 7

During the adjudication hearing, the state c alled two witnesses. The first
witness, Miranda Dean, was McGonigal’s probation officer in Red River County. 8

Ms. Dean was called for the primary purpose of introducing a document into

evidence. 9 This document was titled “Defendant’s Acknowledgment of R ights and
Entry of Plea” and stemmed from a criminal case in the Fourteenth Judicial District

of Kansas. 10 Ms. Dean seemed unsure of what the document was and had no
personal knowledge about the case. 11

The state next called Alex Davidson, an investigator with the Red River
County District Attorney’s Office. Mr. Davidson was called for the primary
purpose of introducing another document into evidence. This document was titled
“Montgomery County SO Inmate Booking Sheet” and contained McGonigal’s
physical description
, photograph , and a rrest information

. 12

7 RR pg. 5; CR pg. 109 8 RR pg. 6 9 R R pg. 7 10 RR, Ex. #1 11 RR pgs. 7, 9 12 RR, Ex. #211

Mr. Davidson testif

ied that the Montgomery County
, Kansas Sheriff’s Office
had faxed him this document at his request. 13 This document states that
McGonigal was arrested on May 9, 2014 and had the charge of “Driving under

influence of alcohol or drugs.” 14

13 RR pg. 13 14 RR, Ex. #212 ARGUMENT AND AUTHORITIES

Issue No. 1 Restated: The evidence is insufficient to show that Appellant committed the offense of Driving While Under the Influence of Alcohol or D rugs in Montgomery County, Kansas on or about May 9, 2014.

Standard of Review

To revoke probation (whether it be regular probation or deferred adjudication), the
State need prove the violation of a condition of probation by a prepond erance of

the evidence. In the probation

- revocation context, "a preponderance of the
evidence" means "that greater weight of the credible evidence which would create

a reasonable belief that the defendant has violated a condition of his pr obation."
Although a lower standard than "beyond a reasonable doubt," the preponderance of
the evidence standard is a much higher standard than the search

- and

- seizure
standards of "probable cause " and "reasonable suspicion." 15

Evidence do es not meet t his standard when the evidence offered to prove a

vital fact is so weak as to do no more than create a mere surmis e or suspicion of its

existence o r when the finder of fact must gue ss whether a vital fact

exists. 16 “S ome suspicion linked to other suspicio n produces only more suspicion,

which is not the same as some evidence." 17

a. The Plea Document Contains No Evidence of McGonigal’s Guilt

15 Hacker v. State , 389 S.W. 3d 860, 864 (Tex. Crim. App. 2013). 16 Id., citing City of Keller 168 S.W.3d 802, 813 (Tex. 2005). 17 Marathon Corp v. Pitzner , 106 S.W.3d 724, 728 (Tex. 20 03).13

The state presented only two pieces of evidence during the hearing. The
first was the “Defendant’s Acknowledg ment of Rights and Entry of Plea”. 18 This
document fails to show that McGonigal committed the alleged offense for several

reasons.
First, it does not show what plea McGonigal entered in the case. This
document appears to be a standard form used in plea c ases in Kansas , similar to the

form often used in Texas

. 19 Throughout the document it advises defendants of the
effects of a plea of guilty and a plea of no contest. However , the document does
not identify which type of plea McGonigal intended to enter. The document
consistently speaks of both a plea of guilty and a plea of no contest.
Given the language of the document, it is certainly possible McGonigal
intended to enter a plea of no contest t o one or more of the charges rather than a
plea of guilty. No judicial notice of the effect of a plea of no contest in Kansas was
taken during the hearing. However, in Texas, a plea of no contest is not an

admis sion of guilt. 20 It is also important to note that this Kansas document does
not contain any sort o f judicial confession like its Texas counterpa rt. 21

Second, this exhibit does not show to what crimes McGonigal intended to
plead no contest or guilty to. Although paragraph six lists, “DUI, 1 st ” and “Driving

18 RR, Ex. #1 19 S ee CR pg. 45 20 Tex. R. Crim. Pro. 27.02(5) 21 CR pg. 5214

Left of Center” it is not clear that McGonigal intended to plead guilty to either or
both of these offenses. The plea agreement was apparently attached to the original
document in Kansas (para. 5 of the exhibit ), but was not attached when this
document was entered into evidence in Red River County.
It is not uncommon for a defendant to be charged wi th two offenses and to
reach a plea bargain in which the more serious offense is dismissed in exchange for
a plea to the minor offense or to plead to a lesser included offense. Again, Exhibit
#1 does not identify how McGonigal intended to plead.

Third, this exhibit does not show any proof that McGonigal actually plead to
Driving Under the Influence or that his plea was accepted. This document is only
an advisement of the defendant’s rights. It is not, on its face, a plea itself. The

document is not signed or certified by a judge or magistrate. 22

The state did not introdu ce any other evidence from the Kansas case, such as
a written judgment of conviction or a certified reporter’s record, to show how or if
McGonigal plead to the offenses. Nor did the state offer any evidence as to what
offense or offenses McGonigal was con victed of in the Kansas court.
Even if we assume, for the sake of argument, that McGonigal intended to
plead guilty and admit to committing the offense alleged in the state’s motion to

22 Page 3 of the document contains a signature block for “ JUDGE/Notary Public ” . However , it is clear this is intended only to acknowledge the signatures of the defendant and his counsel. It also does not indicate whether this particular document was signed by a judge or a notary.15

revoke, this would not be sufficient to revoke his community supervisi on. In

Franco v. State , the defendant had been placed on community supervision and the
state sought to revoke his community supervision . As part of plea negotiations
Franco signed a “Stipulation of Evidence” stipulating to the facts alleged in the

state ’s motion to revoke. During the hearing, however, Franco changed his mind
and plead “not true” and objected to the admission of the Stipulation of Evidence.

The trial court c onsidered the stipulation over defense objection and revoked
Franco’s community supervision. 23
The Court of Criminal Appeals reversed the trial court’s judgment. The
court held that because Franco plead “not true”, the stipulation of evidence should

not have been admitted into evidence. 24

Here, the evidence is even less compelling. We have an advi sement of

ri ghts whi ch, at best, indicat es that McGonigal intended to plead guilty or no

contest to one or more offenses. Ho wever , there is no record that McGon igal
actually plead to the offenses. 25

b. The Inmate Booking Sheet Contains No Evidence of McGonigal’s Guilt
The second exhibit introduced by the state is a booking sheet from the
Montgomery County Sheriff’s Office. It gives McGonigal’s general physical

23 Franco v. State , 552 S.W.2d 142 (Tex. Crim. App. 1972). 24 Franco at 144 25 See also Tex. R. Evid. 410 (a plea of guilty or no contest that was later withdrawn is not admissible against the defendant who made the plea or was a participant in the plea discussions)16

description and states that he was arr ested on May 9, 2014 and charged with “B

1567 Driving under influence of alcohol or drugs; Misdemeanor: STAT”.
Although the document states the arrest date was May 9, 2014, it does not specify
that this was the same date that the alleged offense occurred. The state presented
no evidence from the arresting officer in Kansas nor any testimony from any other
person with knowledge of the details of alleged offense.
c. Taken together these documents do not meet the state’s burden
There are three ways in whi ch the State may seek to prove the defendant
engaged in criminal conduct during the community supervision period

– (1) direct
proof in the revocation hearing; (2) using a judgment of conviction; (3) using

evidence from a criminal trial. 26

Here, the state o ffered no direct proof

– such as the testimony of the
arresting officer. The state offered no judgment of conviction. And, the only
evidence from a criminal trial offered was an advisement to McGonigal of his
rights.

In Willis v. State
, the defendant ha d been placed on community supervision
in Caldwell County for the offense of theft. The state sought to revoke his
community supervision. The state alleged that Willis had again committed theft
while on community supervision. The primary evidence introdu ced by the state to

26 Willis v. State , 2 S.W. 3d 397 (Tex. App.

– Austin 1999), citing George E. Dix &Robert O. Dawson, Criminal Practice and Procedure, §40.8617

prove this allegation was a judgment from a Brazos County court revoking Willis’s
community supervision in a separate case. The written judgment from the Brazos
County court recited that the court had found that Willis had committed th e exact
same offense as alleged in the state’s motion to revoke in Caldwell County. 27

The Austin Court of Appeals reversed the judgment of the Caldwell County
court revoking Willis’s community supervision . It f ound that the revocation order
was, “[S]upported b y no evidence other than the recitations in a revocation order
entered by another judge, in another county, in another case, and where the
defendant was represented by different counsel.” 28

In our case, we do not even have a written order from the Kansas c ourt
finding that McGonigal committed any offense. Not only was he in another state,
another case, and represented by different counsel, there is not even a cursory
recitation that McGonigal committed the offense alleged in the motion to revoke.

Even if we had a judgment of conviction, the evidence would still be
insufficient. As shown in Defendant’s Exhibit #1, McGonigal appealed his

sentence ( for an unspecified offense ) . It has long been the law that if a conviction
is on appeal at the time of the rev ocation, it may not be used as the basis for

revocation. 29

27 Willis at 399 28 Willis at 400 29 Prince v. State , 503 S. W.2d 777 (Tex. Crim. App. 1974) ; see also Tex. R. Evid. 803(22)18

d. Conclusion

T hough not the same as a criminal trial, a proceeding to revoke probation
portends a possible deprivation of liberty, and as such, the application of
appropriate due proces s of law is constitutionally required. 30 The fundamental
tenant of our system of justice is that merely being arrested and charged with an

offense is not evidence of the commission of that offense.
The evidence presented during McGonigal’s revocation hea ring shows, at
best, that he was arrested and charged with Driving Under the Influence. It does
not show that he plead guilty to that offense or that a court found him guilty of that

offense. The Court of Criminal Appeals has repeatedly cautioned against relying
solely upon evidence of a conviction to prove a violation of comm unity
supervision conditions. 31 Here, we do not even have evidence of a conviction , only
evidence of an arrest and charge

. Evidence showing only that a probationer has been arrested and charged

with an offense is insufficient to show that he has committed that offense. Holding

otherwise would offend traditional notions of justice and deny McGonigal of his
constitutional right to due process.

30 Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978); Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975). 31 Long v. State , 590 S.W.2d 138, 139 (Tex. Crim. App. 1979)19

Issue No. 2 Restated: The trial court erred when it admitted state’s Exhibit #2 over defen se objection because the exhibit is inadmissible hearsay evidence.

Standard of Review
A trial court’s ruling concerning the admissibility of evidence is reviewed under an

abuse of discretion standard. 32 Under that standard, the trial court’s ruling must
have been within the zone of reasonable disagreement. 33

a. Error Was Preserved
The state called its investigator, Alex Davidson, for the purpose of
introducing the Montogmery County Sheriff’s Office inmate booking sheet. When

the state offered this exhib it into evidence during Mr. Davidson’s testimony the
defense objected on the basis of hearsay, lack of proper foundation, and
relevancy. 34 The exhibit was admitted over the defense objections. 35

b. The document is inadmissible hearsay

Mr. Davidson testif

ied that he had contacted the Montgomery County
Sheriff’s Office and asked them for any book

- in records they had for McGonigal.

The sheriff’s office faxed him the document admitted as Exhibit #2. 36

This document is a written statement made by a person not testifying in
court and admitted for the purpose of proving that McGon igal had committed the

32 Montgomery v. State , 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) 33 Id. 34 RR pg. 14 35 RR pg. 14 36 RR pgs. 13

- 1420

offense of Driving Under the Influence of Drugs or Alcohol

. Accordingly, it is
hearsay. 37

i. It is excluded under Tex. R. Evid. 803(6)
The only possible exception to the hearsay rule which this document might

fall under is the exception for public records and reports. 38 However, this
document fails under this exception for several reasons.

First, in criminal cases, matters observed by law enforcement personnel are
not admissible under this exception. 39 The not ation of “ Driving under the
influence of alcohol or drugs ” could have only come from a police officer ’ s

observation.

ii. It was not authenticated by a witness
Second, no foundation was laid regarding whether this report contained

“ matters observed pursuant to duty imposed by law as to which matters there was a
duty to report ”

. 40 No one from the Montgomery County , Kansas Sheriff ’ s Office
was called to testify regarding how these booking sheets are compiled and whether
they have a duty under Kansas law to report the inform ation contained in them.
Nor did the trial court take judicial notice of any Kansas law imposing such a duty.

37 Tex. R. Evid. 801, 802 38 Tex. R. Evid. 803(8) 39 Tex. R. Evid. 803(6)(B) 40 Id.21

iii. It was not authenticated by seal or certification

Third, the document was not a self

- authenticating document. There is no
seal, signature, or other certification which might make this document a s elf

authent icated public record. 41

The Court of Criminal Appeals has held that booking sheets are inadmissible
hearsay unless properly authenticated. 42 In Long v. State , the defendant was placed
on probation for aggravated assault. The state later sought to revoke his probation

based on an alle gation that he had committed theft. One of the pieces of evidence
presented at his revocation hearing was a Sheriff ’ s Office booking sheet. Long
objected t o its admission on the basis of hearsay

. The booking sheet was admitted
over Long ’ s objection. 43

T he Court of Criminal appeals held that the trial court erred in adm itting the
booking sheet . The court said
, “ The booking sheet contained no certification that it
was a true and correct copy, it bore no signature, and [the witness] testif ied that he
did not have anything to do with the preparation of that document, nor was he
present when it was p repared. 44

The exact same facts are present in our case. The M ontgomery County
booking sheet
, contained no certification that it was a true and correct copy, it b ore

41 Tex. R. Evid. 902; see also RR Ex. #1 42 Long v. State , 590 S.W.2d 138 43 Long at 139

- 140 44 Long at 14022

no signature, and the witness testified that he h ad only received it by fax from the

Sheriff ’ s office and knew no other information about the case.

Even do cumen tary evidence of a n out

- of

- state conviction must be
authenticated before it may be admitted. In Banks v. State , the prosecuti on offered

a “ pen packet ” from Illinois as pro of of the defendant ’ s prior conviction. 45 The
packet contained a court order, a fingerprint card, and a report. However, the
packet was not certifie d nor did it bear any kind of seal. 46 The court held that the
pen packet was inadmissible hearsay because it had not been properly
authenticated and reversed the judgment of the trial court. 47 In our case, t he

book ing sheet was also not authenticated and, therefore, should not have been

admitted.
c. Admission of the Document Resulted in Harm to Appellant
The Inmate Booking Sheet was the only evidence introduced in the hearing
tending to show that McGonigal had “ committed the offense of Driving under
Influence of Alcohol or Drugs on or about May 9, 2014 in Montgomery County,

KS ” . Exhibit #1 shows only that McGonigal intended to enter some kind of plea to

“ DUI; 1 st ” and “ Driving Left of Center ” . It does not state when those alleged

offen ses o ccurred. Although the styling of that document indicates it was filed in

45 Banks v. State , 158 S.W.3d 649 , 651 (Tex. App.

– Houston [14 th Dist.] 2005), pet. ref ’ d ; see also Cortez v. State
, 571 S.W.2d 308 (Tex. Crim. App. 1978). 46 Id. at 653 47 Id. at 65223

the “ District Court of Montgomery & Chautaugqua Counties ”
, it does not state

where the alleged offense occurred. Further, that document does not state that
McGonigal was suspected of the offense of “ Driving Under the Influence of Drugs

or Alcohol ” but simply states, “ I understand from discuss ion with my attorney that
I am pleading to the following crimes which have the following range of penal ties:

“ DUI, 1 st ”

.
The Re d River County probation office r , Miranda Dean, testified that she
had no personal knowl edge of the alleged offense. 48 She even testified that she
was not familiar with Exhibit #1, which she was being asked to indentify. 49

The District Attorney ’ s own investigator, Alex Davidson, testified that he
had no knowledge concerning the alleged offense other than the book in g sheet. 50

d. Conclusion

Exhibit #2 is in admissible hearsay. The trial court erred when it admitted

the document over defense ob jection. This error harmed McGonigal because this

exhibit is the only scintilla of evidence which might show that McGonigal
committed the offense alleged in the state ’ s motion to adjudicate g uilt.

48 RR pg. 9 49 RR pg. 7 50 RR pg. 1524 C ONCLUSION

The e vidence is insufficient to support the trial court ’ s judgment revoking
Appellant ’ s defer red adjudication community supervision. The state failed to meet
its burden of proof to show that Appellant had committed the offense of Driving

While Under the Influ ence of Drugs or Alcohol in Montgomery County, Kansas on
May 9, 2014. Further, the trial court erred when it admitted hearsay e vidence of
Appellant ’ s arrest in Kansas. This error resulted in substantial harm to Appellant
because it contained the only evidence that Appellant may have committed the
offense alleged in the state ’ s motion to revoke.

PRAYER

Appellant requests th is court to rev erse the judgment rendered below and r ei nstate
Appellant ’ s deferred adj udication community supervision

Respectfully Submitted,

/s/ Don Biard

_________________ Do n Biard State Bar No. 24047755 McLaughlin, Hutchison & Biard, LLP 38 First Northwest Paris, Texas 75460 Tel: (903)785

- 1606 Fax: (903)785

- 7580 Counsel for Appellant25 CERTIFICATE OF SERVICE
I certify that o n December 31 , 2014 a copy of the foregoing Appellant’s Brief was served to the following parties by the method indicated below

.

/s/ Don Biard // Don Biard

Via Email and Regular Mail Hon. Val Varley Red River County District Attorney’s Office 400 N. Walnut Clarksville, Texas 75426 Tel: (903)427

- 2009 Fax: (903)427

- 531626

CERTIFICAT E OF COMPLIANCE PURSUANT TO TEXAS RULE OF

APPELLATE PROCEDURE 9.4(i)(3)

______________________________________ ______________ ______________ TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
Counsel for Appellant files this certification that Appellant’s brief is a computer

g enerated document that contains 4,1 55 words. Co unsel further certifies that he
relied on the word count of the comp uter program used to prepare this document.
Respectfully submitted,

/s/ Don Biard // Don Biard State Bar No. 24047755 McLaughlin, Hutch ison & Biard 38 First Northwest Paris, Texas 75460 Tel: (903)785

- 1606 Fax: (903)785

- 7580 Attorney for Appellant