NO. 01-14-01023-CR

IN THE COURT OF APPEALS FOR THE

FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

CAUSE NO. 10-DCR-055898, COUNT TWO

240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

STATE OF TEXAS, Appellant

VS.

SEAN MICHAEL MCGUIRE, Appellee

STATE'S AMENDED APPELLATE BRIEF

JOHN F. HEALEY, JR.

District Attorney, 268th Judicial District

Fort Bend County, Texas

Jason Bennyhoff

Sherry Robinson

Assistant District Attorneys

--Oral argument requested--

Gail Kikawa McConnell

Assistant District Attorney

SBOT #11395400 

301 Jackson Street, Room 101

Richmond, Texas 77469

(281) 341-4460 / (281) 238-3340 (fax)

Gail.McConnell@fortbendcountytx.gov

Counsel for the State of Texas

ACCEPTED

01-14-01023-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/10/2015 5:48:47 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/10/2015 5:48:47 PM CHRISTOPHER A. PRINE Clerk
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a)(1)(A), the State supplements Appellant’s

list of parties to the trial court's final judgment:

THE STATE OF TEXAS, Appellant

John F. Healey, Jr. District Attorney, 268th Judicial District

301 Jackson St Fort Bend County, Texas

Richmond, TX 77469

Jason Bennyhoff Assistant District Attorneys

Sherry Robinson at trial

Gail Kikawa McConnell Assistant District Attorney

Fort Bend County District Attorney’s Office on appeal

301 Jackson Street, Room 101

Richmond, Texas 77469

SEAN MICHAEL MCGUIRE. Appellee

Michael W. Elliott Attorney for McGuire

905 Front Street

Richmond, TX 77469

Kristen Jernigan Attorney for McGuire

207 So Austin Ave

Georgetown, TX 78626

i
TRIAL COURT

Hon. Donald Higginbotham Judge Presiding

Assigned Judge at Trial on the Merits

c/o Second Administrative Judicial Region of Texas

301 N. Thompson, Suite 102

Conroe, TX 77301

Hon. Thomas Culver, III Judge Presiding

240th District Court, Fort Bend County at the Writ Hearing

301 Jackson St

Richmond, TX 77469 

ii
TABLE OF CONTENTS

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

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . viii

POINTS OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Appellee invited error in leaving Count II pending and is

estopped from complaining of his wrong.. . . . . . . . . . . . . . . . . . . . . . 5

1. The double jeopardy clause protects against multiple trials

and multiple punishments, not multiple convictions in a

single trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Article 37.07, Section 1(c) requires a verdict on each count

presented by the indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. A double jeopardy violation by multiple punishments is

prevented by issuing mandate on only the greater offense

after appellate review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii
4. Appellee invited error in requesting only one verdict, and

the trial court abused its discretion in allowing Appellee to

take advantage of his own wrong.. . . . . . . . . . . . . . . . . . . . . . 9

C. Final Jeopardy has not attached to either count and there is no

double jeopardy bar to a second trial. . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. The State avers that if the conviction for felony murder is

affirmed, it will dismiss the charge for intoxication manslaughter

upon the receipt of mandate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iv
INDEX OF AUTHORITIES

CASES Page

Abney v. United States, 

431 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bigon v. State, 

252 S.W.3d 360 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

Blueford v. Arkansas, 

132 S.Ct. 2044 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brown v. Ohio, 

432 U.S. 161 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ex parte Cavazos,

203 S.W.3d 333 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ex parte Koester, 

451 S.W.3d 908 (Tex. App.-Houston [1st Dist.] 2014, no pet.).. . . . . . . . . . 5

Kniatt v. State, 

206 S.W.3d 657 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

North Carolina v. Pearce, 

395 U.S. 711 (1969), overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Prystash v. State, 

3 S.W.3d 522 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Thieleman v. State,

187 S.W.3d 455, 458 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . 1

Washington v. State, 

326 S.W.3d 701 (Tex. App.--Houston [1st Dist.] 2010, no pet.). . . . . . . . . . 5

v
Woodall v. State, 

336 S.W.3d 634 (Tex. Crim App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTIONS

United States Constitution

Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES AND RULES

CODE OF CRIMINAL PROCEDURE

Article 37.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

PENAL CODE

Section 19.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Section 49.08.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

vi
NO. 01-14-01023-CR

IN THE COURT OF APPEALS FOR THE

FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

CAUSE NO. 10-DCR-055898, COUNT TWO

240TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

STATE OF TEXAS, Appellant

VS.

SEAN MICHAEL MCGUIRE, Appellee

STATE'S APPELLATE BRIEF

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State appeals the trial court’s order of pre-trial habeas relief dismissing

CountII-intoxication manslaughter as a double jeopardy violation after Appellee was

convicted by a jury in Count I-felony murder. [2CR635] Appellee appealed the

judgment for Count I. McGuire v. State, No. 01-14-00240-CR. Count II was tried

together with Count I and for the offense of failure to stop and render charged in a

separate indictment. [RR-writ at 5-6] Count II remained pending after trial because

Appellee insisted that only one guilty verdict or “an acquittal” be returned after

vii
consideration of murder, intoxication manslaughter, DWI-3rd, DWI-2nd, or DWI. 

[RR-writ at 5, 2CR474-88]

The State appeals the dismissal of Count II at the invitation of the trial court

and solely to preserve and/or insure its right to try Appellee on Count II if this Court

were to reverse or vacate the judgment for felony murder. By this appeal, the State

in no way concedes error in No.01-14-00240-CR or believesit likely to be found, but

simply recognizes that several unsettled issues were presented in that appeal. 

STATEMENT OF ORAL ARGUMENT

Whether the trial court erred in dismissing Count II as a double jeopardy

violation, is one of law. However, oral argument may be helpful to the Court because

of the common concept that the Double Jeopardy Clause protects against “multiple

convictions,” when its protection prevents multiple trials and multiple punishments

for the same offense.

viii
POINTS OF ERROR

Point of Error One: The trial court abused its discretion in allowing

Appellee to take advantage of his wrong in insisting that only one

verdict be returned when the indictment alleged two counts.

Point of Error Two: The trial court abused its discretion in dismissing

Count II when no verdict had been rendered, the judgment in Count I

was not final, and the Double Jeopardy Clause did not bar a second trial.

ix
STATEMENT OF FACTS1

Appellee was charged in a single indictment with the offenses of felonymurder

and intoxication manslaughter in causing the death of David Stidman:

COUNT I

did then and there unlawfully commit or attempt to commit a felony, to

wit: Driving While Intoxicated (Third Offense), and in furtherance of

the commission, or in immediate flight from the commission of said

felony, he committed or attempted to commit an act clearly dangerous

to human life, to wit: while driving a motor vehicle on a public street the

defendant failed to maintain an adequate lookout for traffic and road

conditions and by failing to take proper evasive actions, and thus

collided with a motorcycle driven by David Stidman causing the death

of David Stidman.

1 No evidence was offered at the writ hearing, which was not heard by the

judge who presided at Appellee’s jury trial. [RR-writ at 4] The Statement of Facts

is drawn from:

(1) the parties’ briefs, which the trial court assured the parties it had read. [RRwrit at 3] No objections were lodged by either side to any part of the other party’s

brief. [RR-writ at 3-4] These briefs are included in the Clerk’s Record at pages 519-

629.

(2) the uncontroverted statements of the attorneys referencing events and

circumstances at trial that are corroborated by the reporter’s record of the charge

conference included in the State’s brief at 2CR550-73, and the jury charge at

2CR461-93. See Thieleman v. State, 187 S.W.3d 455, 458 (Tex. Crim. App. 2005)

(uncontroverted assertion by counsel about an event may be taken as true if “(1) the

event could not have happened without being noticed; and (2) the assertion is of the

sort that would provoke a denial by opposing counsel if it were not true. If these two

conditions are met, the opposing party may be held to have adoptively admitted the

assertion, and the assertion will be accepted as both true and sufficient to preserve an

issue for appellate review”).

1
COUNT II

It is further presented that on or about August 2, 2010 in Fort Bend

County, Texas the Defendant, Sean Michael McGuire, did then and

there unlawfully, by accident and mistake, while operating a motor

vehicle in a public place while intoxicated, namely by reason of

introduction of alcohol into the defendant’s body, and by reason of that

intoxication, did then and there cause the death of David Stidman by

driving said motor vehicle and striking a motorcycle driven by David

Stidman.

[1CR10]

These offenses were tried to a jury together with the offense of failure to stop

and render aid (“FSRA”) that was charged in a separate indictment. [RR-writ 5-6]

Appellee appealed his conviction for FSRA, and that appeal is pending in this Court. 

McGuire v. State, No. 01-14-00241-CR. 

The trial court adopted Appellee’s jury charge, instructing the jury to “choose

from four separate and distinct offenses or acquittal.” [RR-writ at 5, 2CR474-88]

The State objected and, pursuant to Article 37.07,requested that the jury be instructed

to return a verdict of guilty or not guilty on each count. [RR-writ at 9] Appellee

“pointed out” that the State was “requesting that the Court intentionally engage in a

double jeopardy violation,” the trial court overruled the State’s objection. [RR-writ

8]

The jury convicted Appellee for felony murder and assessed punishment at

eighteen years imprisonment and a $5,000 fine. [RR-writ 5-6; 2CR483, 493] On

2
March 20, 2014, the District Attorney wrote a letter to TDCJ, Classifications and

Records, explaining that Count II of the indictment for intoxication manslaughter

remained pending because no verdict had been returned. [RR-writ at 7; 2CR525-26]

On September 2, 2014, Appellee filed a pre-trial motion for writ of habeas

corpus asserting, “Applicant is currently suffering a Double Jeopardy violation

because he has already been convicted of murder for causing the death of David

Stidman and is currently charged with Intoxication Manslaughter for causing the

death of David Stidman.” [2CR518-45] The State filed a written response. 

[2CR539-629] 

On December 9, 2014, the trial court assured counsel it had read their briefs

and invited arguments. [RR-writ 3] After hearing the arguments of counsel, and

encouraging the State to appeal its order, the trial court granted relief, dismissed

Count II, and denied the State’s motion to stay. [RR-writ at 1, 14; 2CR635] The 

State filed its timely notice of appeal. [2CR636-641]

3
SUMMARY OF THE ARGUMENT

The Double Jeopardy Clause protects against multiple trials and multiple

punishments, not multiple convictions in a single trial. Any double jeopardy violation

for multiple punishments can be prevented by the issuance of mandate on only one

judgment after appellate review.

The trial court erred in dismissing Count II-intoxication manslaughter as a

double jeopardy violation for two reasons:

One, Appellee created his own double jeopardy dilemma by insisting, contrary

to statute, that only one verdict should be returned when the indictment alleged two

counts. Because he invited error, Appellee was estopped fromcomplaining about the

pendency of Count II. 

Two, the decision in neither count is final. Appellee appealed the judgment in

CountI-felonymurder, which remains pending; and no verdict wasrendered inCount

II-intoxication manslaughter. While Double Jeopardy poses no bar to a second trial,

the State has no intention of prosecuting Count II until after mandate issues in the

appeal of the judgment in Count I. 

4
STATE’S ARGUMENT

The trial court erred in dismissing Count II-intoxication manslaughter.

A. The standard of review.

We review a trial court'sruling on a pretrial writ of habeas corpus for an

abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.

App.--Houston [1st Dist.] 2010, no pet.). In conducting this review, we

view the facts in the light most favorable to the trial court's ruling. See

Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704.

Ex parte Koester, 450 S.W.3d 908, 910 (Tex. App.--Houston [1st Dist.] 2014, no

pet.).

B. Appellee invited error in leaving Count II pending and is

estopped from complaining of his wrong.

At the writ hearing, the State told the trial court that Appellee requested that

only one verdict of guilty be returned, thus leaving Count II pending. [RR-writ 9;

2CR567-71] The State argued that Appellee “created the situation where he went to

trial and ended up without a verdict.” [RR-writ at 9]

The law of invited error provides that a party cannot take advantage of

an error that it invited or caused, even if such error is fundamental. 

Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc).

In other words, a party is estopped from seeking appellate relief based

on error that it induced. Id. “To hold otherwise would be to permit him

to take advantage of his own wrong.” Id.

Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim App. 2011) (footnote omitted,

appellant estopped from complaining of a violation of confrontation rights).

5
The trial court abused its discretion in allowing Appellee to take advantage of

his own wrong.

1. The double jeopardy clause protects against multiple trials

and multiple punishments, not multiple convictions in a

single trial.

The Fifth Amendment, applicable to the States under the Fourteenth

Amendment, provides that no person shall "be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V & XIV; Brown v. Ohio,

432 U.S. 161, 164 (1977). 

The Fifth Amendment offers three different constitutional protections. 

First, protection against a second prosecution for the same offense after

acquittal. Second, protection against a second prosecution for the same

offense after conviction. Third, protection against multiplepunishments

for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717,

(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794

(1989); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.

2006).

Bigon v. State, 252 S.W.3d 360, 369-70 (Tex. Crim. App. 2008).

The Double Jeopardy Clause does not protect against multiple convictions in

a single trial. 

Here, felony murder and intoxication manslaughter are not lesser included

offenses. The State knows of no Texas case requiring the State to proceed to trial on

either felony murder or intoxication manslaughter and not both. Logically, both

should be presented to the jury for its consideration:

6
• Felony murder2

requires two prior convictions for DWI and intoxication

manslaughter does not. On this basis, a jury might find that the State failed in

its proof of the two prior convictions and convict the defendant of intoxication

manslaughter. 

• Intoxication manslaughter3

requires the death to be caused by reason of the

intoxication and felony murder does not. On this basis, a jury might find

against intoxication manslaughter and find the felony murder.

Thus, to ensure a conviction for either felony murder or manslaughter both

offenses must be presented to a jury, and both must be presented to the same jury in

a single trial because the “allowable unit of prosecution” is one unit per death. Bigon,

252 S.W.3d at 372. 

2. Article 37.07, Section 1(c) requires a verdict on each count

presented by the indictment.

At the writ hearing, the State told the trial court that it had requested a verdict

in each count and was entitled to those verdicts under Article 37.07. [RR-writ at 9;

2CR567] Article 37.07, Section 1(c) provides in pertinent part:

If the charging instrument contains more than one count . . . the jury

shall be instructed to return a finding of guilty or not guilty in a separate

verdict as to each count and offense submitted to them.

Tex. Code Crim. Proc. art. 37.07, § 1(c) (West 2010).

The State was entitled to a jury verdict for each count of the indictment and

2 Tex. Pen. Code § 19.02(b)(3) (West 2010).

3 Tex. Pen. Code § 49.08 (West 2010).

7
Appellee invited error by insisting that only one verdict should be rendered.

3. A double jeopardy violation by multiple punishmentsis prevented

by issuing mandate on only the greater offense after appellate

review.

At the writ hearing, the State argued that a double jeopardy violation for

multiple punishments can be avoided by abandoning the lesser offense as determined

under Bigon. [RR-writ at 9-10]

In Bigon, the Court of Criminal Appeals resolved a double jeopardy violation

in Bigon’s conviction for both felony murder and intoxication manslaughter by the

“most serious offense test.” Bigon, 252 S.W.3d at 273. This test is used for policy

reasons including that “this test would eliminate arbitrary decisions based upon the

order of offenses in the charging instrument, that in most circumstances the State

would elect to retain the most serious conviction, and that public safety is insured

through the deterrent influence of penalties.” Id. “[T]he most serious offense is the

offense for which the greatest sentence is assessed.” Id. In Bigon, the sentences were

the same, so the court looked to the degree of felony to find felony murder the most

serious offense and vacated the judgment for intoxication manslaughter. Id.

Likewise, in this case, if Appellee had been convicted of both felony murder

and intoxicationmanslaughter, after appellate review, thisCourt could apply the most

serious offense test to prevent a double jeopardy violation for multiple punishments.

8
4. Appellee invited error in requesting only one verdict, and

the trial court abused its discretion in allowing Appellee to

take advantage of his own wrong.

Contrary to law, Appellee insisted on one verdict. Appellee is estopped from

complaining about the pendency of Count II when a verdict should have been

rendered at trial.

As shown in the foregoing argument, and as Appellee stated in his application

for writ of habeas corpus, “To be sure, the Double Jeopardy Clause protects against

being twice convicted for the same crime, and that aspect of the right can be fully

vindicated on appeal following final judgment.” [2CR520 (quoting Abney v. United

States, 431 U.S. 651, 660-61 (1977)]

The trial court abused its discretion in allowing Appellee to take advantage of

his wrong. Point of Error One should be sustained and Count II reinstated.

C. Final Jeopardy has not attached to either count and there is no

double jeopardy bar to a second trial.

At the writ hearing, the State told the trial court that it had objected to

Appellee’s request for one verdict and asked for a verdict on each count pursuant to

Article 37.07, Code of Criminal Procedure. [RR-writ at 9, 2CR567] The State 

analogized the failure to return a verdict on Count II to another no verdictscenario--a

hung jury, and argued there was no double jeopardy violation in a second trial. [RRwrit at 11]

9
The Double Jeopardy Clause protects against multiple trials and multiple

punishments for the same offense. Bigon, 252 S.W.3d at 369-70. At the time

Appellee brought his application for pre-trial writ, Appellee’s pending charge for

intoxication manslaughter had not been set for a second trial. Neither multiple trials,

nor multiple punishments has occurred in this case.

Appellee appealed his conviction for felony murder (Count I). McGuire v.

State, 01-14-00240-CR. Appellee’s appeal is still pending in this Court, and the

conviction is not final. 

No verdict was rendered for intoxication manslaughter (Count II). Where no

verdict is returned, the Double Jeopardy Clause does not bar a second trial on the

same offense. See Blueford v. Arkansas, 132 S.Ct. 2044, 2050 (2012) (absent a

verdict, the foreperson’sreport of an acquittal for capital murder and murder “was not

a final resolution of anything”).

The trial court abused its discretion in dismissing Count II as a double jeopardy

violation.

D. The State avers that if the conviction for felony murder is

affirmed, it will dismissthe charge forintoxication manslaughter

upon the receipt of mandate.

Dismissal of Count II means that if this Court were to find error and reverse or

vacate the judgment for felony murder, the State will not be able to present the

intoxication manslaughter offense on retrial. Hence, this appeal.

10
However, as shown by the record, the State is well aware that it may not retain

convictions for both felony murder and intoxication manslaughter. [RR-writ at 10;

2CR552, 558] The State has no intention of prosecuting Appellee for intoxication

murder if the judgment for felony murder is affirmed. Therefore, if this Court were

to affirm the judgment for felonymurder, the State aversit will dismiss Count II upon

receipt of the Court’s mandate.

The State’s points of error should be sustained.

11
PRAYER

The State prays that the trial court’s order granting relief be reversed and

Count II be reinstated, pending the outcome of the appeal of the judgment in Count

I in McGuire v. State, 01-14-00240-CR.

Respectfully submitted, 

John F. Healey, Jr.

SBOT# 09328300

District Attorney, 268th Judicial District

Fort Bend County, Texas

/s/ Gail Kikawa McConnell

Gail Kikawa McConnell

Assistant District Attorney

SBOT # 11395400

301 Jackson Street, Room 101

Richmond, Texas 77469

(281) 341-4460 / (281) 238-3340 (fax)

Gail.McConnell@fortbendcountytx.gov

Counsel for the State

CERTIFICATE OF COMPLIANCE

I hereby certify that the State’s Appellate Brief, in total through the prayer,

contains 3,605 words as counted by WordPerfect 6X, which is less than the 15,000

word limit for a brief.

/s/ Gail Kikawa McConnell

Gail Kikawa McConnell

12
CERTIFICATE OF SERVICE

I hereby certify that a copy of the State's appellate brief was served by e-mail

or the case filing manager on June 10, 2015, and by certified mail, return receipt

requested # 7012 3460 0002 4097 9275 on June 11, 2015, on Ms. Kristen Jernigan,

Attorney for Appellee, 207 S. Austin Ave., Georgetown, TX 78626.

/s/ Gail Kikawa McConnell

Gail Kikawa McConnell

13