NO. 07-14-00339-CR

IN THE 

COURT OF APPEALS 

SEVENTH JUDICIAL DISTRICT 

AMARILLO, TEXAS 

_________________________________ 

CURTIS WOODRUFF 

V.

THE STATE OF TEXAS 

_________________________________ 

ON APPEAL FROM THE 140TH DISTRICT COURT 

OF LUBBOCK COUNTY, TEXAS 

CAUSE NO. 2014-403,191 

_________________________________ 

BRIEF FOR THE STATE 

_________________________________ 

 MATTHEW D. POWELL 

 Criminal District Attorney 

 Lubbock County, Texas 

 

TRACI BOWMAN 

COURTNEY GRAFFT 

 Assistant Criminal District Attorneys 

 (Trial Attorneys) 

ORAL ARGUMENT WAIVED JEFFREY S. FORD 

 Assistant Criminal District Attorney 

 Lubbock County, Texas 

 State Bar No. 24047280 

 P.O. Box 10536, Lubbock, TX 79408 

 Phone (806)775-1166 

 FAX: (806)775-7930 

 E-mail: JFord@co.lubbock.tx.us

 (On appeal)

 ATTORNEY FOR THE STATE

ACCEPTED

07-14-00339-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

7/14/2015 5:19:51 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/14/2015 5:19:51 PM VIVIAN LONG CLERK
i

Identity of Parties and Counsel

Appellant:

Curtis Woodruff

Appellant’s trial attorneys:

Jesse Mendez, Attorney at Law, 2833 74th Street, Lubbock, TX 79423; 

phone (806)748-5287; fax (806)748-5256

Marlise Hernandez Boyles, Law Office of Jorge E. Hernandez, P.O. Box 

2936, Lubbock, TX 79408; phone (806)765-7257

Appellant’s appellate counsel:

Julie Panger, The Kiechler Law Firm, 619 Broadway Street, Lubbock, TX 

79401; phone (806)712-2889; fax (808)712-2529

State of Texas:

At trial: 

Traci Bowman & Courtney Grafft, Assistant Criminal District Attorneys, 

Lubbock County Criminal District Attorney’s Office, P.O. Box 10536, 

Lubbock, Texas 79408; phone (806) 775-1100; fax (806)775-7930

On appeal: 

Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County 

Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, Texas 

79408; phone (806) 775-1166; fax (806)775-7930

Trial Judge: 

Honorable Jim Bob Darnell, Presiding Judge, 140th District Court of 

Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite 

349, Lubbock, TX 79401
ii

Table of Contents

PAGE

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

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

Table of Authorities...................................................................................................v

Statement of the Case................................................................................................ix

Statement of the Facts................................................................................................1

Suppression Hearing..................................................................1

Trial Testimony (of Officer Sims)...................................................5

Summary of the Argument.........................................................................................7

Argument and Authorities....................................................................9

First Issue Presented (Responsive to Appellant’s First and Second Issues):

Appellant argues that the trial court erred in failing to suppress the statements and 

physical evidence in the case because both the statements and the physical 

evidence were obtained without his Miranda warnings first being given, and that 

the evidence is legally insufficient to support the conviction but for the improper 

admission of the statements and physical evidence. The trial court properly denied 

the motion to suppress and allowed the admission of the statements because 

Appellant was not in custody when the statements were given. Even if the 

statements were improperly admitted, however, the physical evidence was still 
iii

admissible because (a) Appellant was not being interrogated when he was asked 

for consent to search; and (b) Appellant gave voluntary consent for a search of his 

pockets and the bag and case he had been carrying. Furthermore, the evidence was 

legally sufficient to support the conviction because a proper sufficiency review 

accounts for all the evidence in the case—regardless of whether it was properly or 

improperly admitted. Was Appellant in custody for Miranda purposes when he 

gave the relevant statements in the case? If the statements were improperly 

admitted at trial, was the consent to search and physical evidence nonetheless 

admissible into evidence? Was the evidence legally sufficient to support the 

conviction based on all of the evidence admitted at trial?.........................................9

I. Miranda custody standard........................................................10

II. Appellant was not “in custody” within the meaning of Miranda.........13

III. Even if Appellant was “in custody” when he was handcuffed, the 

officer’s action in asking for consent to search did not constitute 

“interrogation” for Miranda purposes.....................................20

IV. Even if Appellant was “in custody” when some or all of the relevant 

statements were given, the physical evidence, i.e., the checkbook and 

other evidence, would not have been required to be suppressed......21

V. The evidence is legally sufficient to support the conviction...............25

Conclusion...........................................................................28
iv

Conclusion and Prayer .............................................................................................29

Certificate of Service ...............................................................................................29

Certificate of Compliance..................................................................30
v

Table of Authorities

CONSTITUTIONAL PROVISIONS PAGE

U.S. CONST. amend. V..................................................................10, 21

U.S. SUPREME COURT & FEDERAL CASE LAW

U.S. v. Bengivenga, 845 F.2d 593 (5th Cir.) (op. on reh’g en banc), cert. denied, 

488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).................................12

Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).........12

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)......20

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)..........25

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per 

curiam)........................................................................................11

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).....passim

U.S. v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plur. 

op.).......................................................................................21-22

Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)...19, 20

Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) 

(per curiam)....................................................................................12

U.S. v. Stevens, 487 F.3d 232 (5th Cir.), cert. denied, 552 U.S. 936, 128 S.Ct. 336, 

169 L.Ed.2d 236 (2007).....................................................................21

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)....................17

Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)......11
vi

TEXAS CASE LAW

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011)............................26

Alford v. State, 358 S.W.3d 647 (Tex. Crim. App. 2012)..............................13

Baker v. State, 956 S.W.2d 19 (Tex. Crim. App. 1997)................................22

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)...........................18

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.)................25

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)........................26-27

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)..................11, 12, 17

Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009).......................11, 12

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011)...............................25

Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007)...................12-14, 17

In re H.V., 252 S.W.3d 319 (Tex. 2008).................................................22

In re J.T.M., 441 S.W.3d 455 (Tex. App.—El Paso, no pet.).........................24

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003)..........................22, 24

Jones v. State, 7 S.W.3d 172 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d)...21

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)..............................10

Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008)......................19, 20

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011)...........................23

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012)...........................17-19
vii

Ramirez v. State, 105 S.W.3d 730 (Tex. App.—Austin 2003, no pet.)...............17

Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997).............................19

Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2012, no pet.)..18

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013)............................27

TEXAS RULES AND STATUTES

TEX. CODE CRIM. PROC. ANN. art. 38.22.............................................14, 19

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2(a)..........................................10

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5.............................................14

TEX. PEN. CODE ANN. § 32.51(b)(1)......................................................27

TEX. R. APP. P. 3.2..........................................................................viii

TEX. R. APP. P. 44.2(a)......................................................................24
viii

NO. 07-14-00339-CR

IN THE 

COURT OF APPEALS

SEVENTH JUDICIAL DISTRICT

AMARILLO, TEXAS 

_________________________________

CURTIS WOODRUFF

V.

THE STATE OF TEXAS 

_________________________________

BRIEF FOR THE STATE 

_________________________________

To the Honorable Court of Appeals:

The State of Texas, the prosecuting authority in Cause No. 2014-403,191 in 

the 140th District Court of Lubbock County, and Appellee before the Seventh 

Court of Appeals, respectfully submits this brief in reply to the brief filed by 

Appellant appealing his conviction for the offense of Fraudulent Use or Possession 

of Identifying Information. The parties will be referred to as “Appellant” and 

“State.”1

 

1 TEX. R. APP. P. 3.2.
ix

Statement of the Case

Appellant was charged by indictment in Cause No. 2014-403,191 on August 

5, 2014, with the offense of fraudulent use or possession of identifying 

information, for an offense alleged to have occurred on October 1, 2013. (Clerk’s 

Record (CR) p. 7). Following a two-day jury trial, from August 25-26, 2014, 

Appellant was convicted of the offense by the jury. (CR p. 74) (Reporter’s Record 

(RR) vol. 5, p. 29). The trial court assessed Appellant’s punishment at eighteen 

(18) years imprisonment on August 27, 2014. (CR pp. 82-85) (RR vol. 6, pp. 14-

15). The trial court certified that Appellant has the right of appeal. (CR p. 78) (RR 

vol. 6, p. 15). 
1

Statement of Facts

Suppression Hearing:

Prior to the start of the voir dire examination, Appellant asked whether the 

State was planning to introduce his un-Mirandized statements during trial. After 

the State said that it was planning on introducing those statements, a hearing was 

held (immediately after the jury was sworn in) to determine whether the statements 

were admissible in the absence of the Miranda warnings having first been given. 

(RR vol. 3, pp. 7, 113-58). Officer Brad Sims was called as the sole witness at the 

hearing. (RR vol. 3, pp. 116-50).

Officer Sims testified about the stop, search and seizure, and statements 

given by Appellant. He was working patrol on the night of October 1, 2013, when 

he received a call from dispatch directing him to the 2000 block of 10th Street for a 

vehicle burglary possibly in progress. He was advised that an unknown male had 

been walking up to cars pulling on door handles and had made entry into a vehicle 

that was unlocked. When the 9-1-1 callers approached him, the man fled 

northbound. (RR vol. 3, pp. 117-18). Sims arrived in the area looking for a black 

male wearing a blue and white striped shirt, wearing a blue bandanna, and carrying 

a black bag (which was the description given by dispatch). (RR vol. 3, p. 118).

Sims went from the 2000 block of 10th Street and started looking northeast, which 

is the way he had been advised the unknown male had fled. (RR vol. 3, p. 119). 
2

Sims saw a man matching the description in the parking lot of the Stripes store at 

Avenue Q and Marsha Sharp Freeway. (RR vol. 3, pp. 119, 133).

Sims came in contact with the man after activating his emergency lights. The 

man—who was identified in court as Appellant—was wearing a light gray and 

blue striped shirt, a blue bandanna on his head, and had a black bag around his 

shoulder, and was carrying what appeared to be a black briefcase in his hand. (RR 

vol. 3, pp. 120-21, 134). Sims told Appellant to place everything that was in his 

hands on the ground and walk towards him (based on his suspicion that Appellant 

had just committed a vehicle burglary and had multiple things in his hand that he 

could conceal weapons in, as well as the potential to conceal weapons in his 

clothing. (RR vol. 3, pp. 121-22, 134). Sims conducted a pat-down search; nothing 

was discovered during the pat-down search. (RR vol. 3, p. 122). Appellant was not 

free to leave at that time. (RR vol. 3, p. 136).

Sims then asked for and received verbal consent to search Appellant’s 

pockets. Sims located two debit cards (a MasterCard and a Visa card) in 

Appellant’s right front pocket. (RR vol. 3, pp. 122-23, 136). Sims noticed that the 

names on the cards (Joe Ramirez and Jennifer Martinez) did not match Appellant. 

When asked who the cards belonged to, Appellant advised that the cards belonged 

to his girlfriend—though he said his “girlfriend’s” name was Jennifer, but did not 

know her last name. (RR vol. 3, pp. 123, 137). When asked about the second card 
3

that had a male’s name on it, Appellant stated that he did not know whose card it 

was and that he found the cards on the ground. (RR vol. 3, p. 124). After hearing 

the inconsistent explanations, Sims placed Appellant in handcuffs to detain him 

and escorted him back to his patrol car. Id. Sims placed Appellant in handcuffs for 

the following reasons: (1) based on his belief that a crime had occurred; (2) 

because Appellant was a suspect in that crime; (3) for Sim’s safety since he was 

still by himself (since Appellant is a significantly larger man than Sims)2; and (4) 

to limit Appellant’s use of his hands so he would not be able to fight or flee. 

However, Appellant was not under arrest at that time since an investigation was 

still ongoing. (RR vol. 3, p. 125).

After Sims placed Appellant in his patrol vehicle, he wanted to further 

investigate who the cards belonged to. Id. Appellant gave verbal consent to search 

the bag and the case that he had had with him. (RR vol. 3, pp. 125-26, 137). The 

drawstring Cowboys bag contained a knife and a checkbook with multiple checks 

in it (eleven checks). The checks belonged to Harold and Shirley Dron. (RR vol. 3, 

p. 126). Sims also located a small envelope from Chase bank with $25.00 dollars 

inside of it, a window breaking tool, a Walgreen’s bag full of five unopened 

Copenhagen cans, an HTC phone charger, a wheel lock key, an air purifier, and 

 

2 Officers Brennan Kent and Belinda House eventually arrived on the scene, but they arrived 

after Appellant had been handcuffed. (RR vol. 3, pp. 143-44, 146, 150).
4

loose change ($13.74 in all). (RR vol. 3, pp. 126-27, 141). Sims believed those 

items were suspicious because they were all items that can immediately be located 

in a vehicle. (RR vol. 3, p. 127). The black case contained a portable gas grill. (RR 

vol. 3, p. 129).

Sims Mirandized Appellant after locating the checks and other items inside 

of the bag. Appellant waived his Miranda rights and agreed to speak to him. (RR 

vol. 3, pp. 127-28, 143, 145). He was not under arrest at that time. (RR vol. 3, p. 

127). Appellant told Sims that he was walking to the Avenue Q Wal-Mart when he 

located the plastic bag by the Flying J with the two debit cards inside of the bag. 

He pulled the debit cards out of the bag and placed them in his pocket. He then 

walked to the Wal-Mart, used the change counter, and was walking back to the 

Coronado Inn when he was stopped by Sims. (RR vol. 3, p. 128). He also said he 

was never in the area of 10th Street. (RR vol. 3, p. 129). He said he was carrying 

the portable gas grill because he and his girlfriend had just gotten into a fight and 

she drove by and dropped it off with him because she was moving out. Id. After 

attempting (without success) to locate the victims of the checkbook and debit cards 

thefts, Sims placed Appellant under arrest. (RR vol. 3, pp. 129-30, 150).

Following Officer Sims’ testimony, Appellant argued that the statements 

should be suppressed because Sims should have Mirandized him either when he 

had Appellant place his hands on the patrol car or when Sims placed Appellant in 
5

handcuffs and placed him in the patrol car since he was in custody (in that he was 

not free to leave). (RR vol. 3, pp. 152-57). The State argued that this was a 

temporary detention while Sims investigated the possible car burglaries. When 

Sims found the debit cards, that was a continuation of the temporary detention to 

find out information about why he could potentially have those cards. And, the 

search of the bag and the case was done based on consent. (RR vol. 3, pp. 155-56). 

The trial court ruled that it would “overrule your objection as far as the pat-down 

and the consent to search his pockets and the consent to search the bag and case 

that he had. The Court will sustain your objection as far as going into any 

statements the Defendant made after the point in time he was Mirandized. Prior to 

that time, the Court will allow the State to go into those statements that he made to 

the officer during that investigative stop.”3(RR vol. 3, p. 158).

Trial Testimony (of Officer Sims):

Officer Sims was called as the second State’s witness during trial. He 

received a call from dispatch at 1:20 a.m. on October 1, 2013, about a possible 

burglary of a vehicle in progress. (RR vol. 4, p. 16). Sims found Appellant, as the 

man matching the description provided him by dispatch, in the area of Marsha 

Sharp and Avenue Q at the Stripes store. (RR vol. 4, p. 17). Sims activated his 

 

3 Appellant waived his objection to the admission of the post-Miranda statements prior to the 

start of the guilt-innocence phase of trial. (RR vol. 4, pp. 6-7).
6

lights, after which Appellant stopped, turned around, and looked at him. Sims had 

Appellant put down the black bag and case he was carrying and walk to him. (RR 

vol. 4, pp. 19, 21). Sims had Appellant place his hands on the hood of his patrol car 

so he could perform a pat-down search. Sims was still by himself when he 

performed the pat-down search. (RR vol. 4, p. 22). Appellant gave verbal consent 

to search his pockets. Sims found two debits cards in Appellant’s right front pocket 

that belonged to two separate people. (RR vol. 4, pp. 23-24). Sims asked Appellant 

about the debit cards to determine if he had the right to have those cards on him. 

Appellant said that the cards belonged to his “girlfriend.” When asked about the 

card with the man’s name on it, he said he did not know who the other one was. 

(RR vol. 4, pp. 24-25). Appellant then changed his story to say he found the cards 

on the ground. (RR vol. 4, p. 25). 

Sims decided to place Appellant in handcuffs for his (Sims’) safety to detain 

Appellant while he further investigated whether Appellant had the right to possess 

those debit cards. He placed Appellant in the back of his patrol car. He did not 

inform Appellant that he was under arrest at that time. (RR vol. 4, p. 26). Appellant 

gave verbal consent to search the bag and the case he had been carrying. Id. Sims 

first searched the drawstring bag. He found a knife, a checkbook for Harold and 

Shirley Dron, an envelope from Chase Bank with $25 in it, a window breaking 

tool, an open Walgreen’s bag with five unopened Copenhagen snuff cans inside of 
7

it, numerous miscellaneous receipts, a cashier’s check receipt from Bank of 

America, a HTC phone charger, tire wheel lock key, an auto air purifier, and 

$13.34 in loose change. (RR vol. 4, pp. 26-36). Inside of the black case was a 

portable gas grill. (RR vol. 4, p. 37). 

After searching the bag and the case, Sims Mirandized Appellant because he 

wanted to ask Appellant specific questions about an offense that he believed had 

just occurred. (RR vol. 4, p. 37). Appellant waived his Miranda rights and agreed 

to talk to him. Id. After Appellant provided his explanation (and after Sims 

unsuccessfully tried to locate the victims), Sims placed Appellant under arrest. (RR 

vol. 4, pp. 37-40, 67). 

Summary of the Argument

Appellant argues in his first issue that the trial court erred in failing to 

suppress the statements and physical evidence in the case because the statements 

and physical evidence were obtained without his Miranda warnings first being 

given. The evidence was admissible because Appellant was not “in custody” when 

the statements at issue were given—in that his freedom of movement had not been 

restricted to the degree associated with an arrest. 

Assuming, arguendo, that some or all of the statements were improperly 

admitted, neither the consent to search nor the physical evidence was required to 
8

be suppressed. First, the consent to search the bag and case—done after Appellant 

was handcuffed and placed in a squad car—did not constitute “interrogation” for 

Miranda purposes since the act of giving consent did not constitute an 

incriminating statement. Second, the physical evidence was properly admitted 

because the “fruit of the poisonous tree” doctrine does not require suppression of 

the physical fruits (i.e., the checkbook and other items located within the bag and 

case) of a suspect’s unwarned but voluntary statements. Because the consent to 

search the bag and case and the physical evidence located within the bag and case 

were properly admitted, any error from the “improper” admission of the statements 

was harmless beyond a reasonable doubt.

Appellant argues in his second issue that the evidence is legally insufficient 

to support the conviction because the statements and evidence was improperly 

admitted at trial. But, since a sufficiency review takes account of all of the 

evidence admitted at trial, regardless of whether it was properly or improperly 

admitted, the statements and physical evidence admitted during trial should be 

considered in the sufficiency analysis. The evidence was legally sufficient since it 

shows that Appellant possessed the victim’s checkbook without the victim’s 

consent with the intent to harm or defraud her. 
9

Arguments and Authorities

First Issue Presented

(Responsive to Appellant’s First and Second Issues)

Appellant argues that the trial court erred in failing to suppress the statements and 

physical evidence in the case because both the statements and the physical

evidence were obtained without his Miranda warnings first being given, and that 

the evidence is legally insufficient to support the conviction but for the improper 

admission of the statements and physical evidence. The trial court properly denied 

the motion to suppress and allowed the admission of the statements because 

Appellant was not in custody when the statements were given. Even if the 

statements were improperly admitted, however, the physical evidence was still 

admissible because (a) Appellant was not being interrogated when he was asked 

for consent to search; and (b) Appellant gave voluntary consent for a search of his 

pockets and the bag and case he had been carrying. Furthermore, the evidence was 

legally sufficient to support the conviction because a proper sufficiency review 

accounts for all the evidence in the case—regardless of whether it was properly or 

improperly admitted. Was Appellant in custody for Miranda purposes when he 

gave the relevant statements in the case? If the statements were improperly 

admitted at trial, was the consent to search and physical evidence nonetheless 
10

admissible into evidence? Was the evidence legally sufficient to support the 

conviction based on all of the evidence admitted at trial?

I. Miranda custody standard

The Fifth Amendment provides that “[n]o person . . . shall be compelled in 

any criminal case to be a witness against himself.” U.S. CONST. amend. V. The 

Miranda4court stated that “the prosecution may not use statements, whether 

exculpatory or inculpatory, stemming from custodial interrogation of the defendant 

unless it demonstrates the use of procedural safeguards effective to secure the 

privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

Those procedural safeguards, known as the Miranda warnings, are codified in 

Texas as Article 38.22 § 2(a) of the Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. art. 38.22 § 2(a); see Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex. 

Crim. App. 1996).

The Supreme Court limited the application of Miranda warnings to 

statements that stem from custodial interrogation. Custodial interrogation is 

described as “questioning initiated by law enforcement officers after a person has 

been taken into custody or otherwise deprived of his freedom of action in any 

significant way.” Miranda at 444, 86 S.Ct. at 1612. Miranda warnings are required 

“only where there has been such a restriction on a person’s freedom as to render 

 

4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
11

him ‘in custody.’” Thompson v. Keohane, 516 U.S. 99, 107, 116 S.Ct. 457, 463, 

133 L.Ed.2d 383 (1995), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 

711, 714, 50 L.Ed.2d 714 (1977) (per curiam). 

There are at least four general situations that may constitute custody: 

(1) when the suspect is physically deprived of his freedom of action in 

any significant way, (2) when a law enforcement officer tells the 

suspect that he cannot leave, (3) when law enforcement officers create 

a situation that would lead a reasonable person to believe that his 

freedom of movement has been significantly restricted, and (4) when 

there is probable cause to arrest and law enforcement officers do not 

tell the suspect that he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); accord Gardner v. 

State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). For the first through third 

Dowthitt factors, the restriction upon freedom of movement must amount to the 

degree associated with an arrest as opposed to an investigative detention. For the 

fourth Dowthitt factor, the officer’s knowledge of probable cause must be 

manifested to the suspect, with such manifestation occurring either by transmission 

of information substantiating probable cause by the officers to the suspect, or by 

the suspect to the officers. Id. at 255. In the fourth factor, custody is not 

automatically established merely because probable cause is manifested; rather, 

“custody is established if the manifestation of probable cause, combined with other 

circumstances, would lead a reasonable person to believe that he is under restraint 

to the degree associated with an arrest.” Id. The appropriate inquiry is whether the 
12

suspect has been formally arrested or had his or her freedom of movement 

restricted to the degree associated with a formal arrest. Stansbury v. California, 

511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (per curiam); 

Gardner, 306 S.W.3d at 293-94.

The determination of whether a suspect was in custody must be made on an 

ad hoc basis, after considering all of the objective circumstances of the 

interrogation, not on the subjective views harbored by either the interrogating 

officers or the person being questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. at

1529; Dowthitt at 255. A person is in “custody” only if, under the circumstances, a 

reasonable person would believe that his freedom of movement was restrained to 

the degree associated with a formal arrest. Stansbury at 322-25, 114 S.Ct. at 1528-

30; Herrera at 525. The “reasonable person” standard presupposes an innocent

person. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 

389 (1991) (emphasis taken from opinion); Dowthitt at 254. The “reasonable 

person,” for purposes of the custody determination, must be “neutral to the 

environment and to the purposes of the investigation—that is, neither guilty of 

criminal conduct and thus overly apprehensive nor insensitive to the seriousness of 

the circumstances.” U.S. v. Bengivenga, 845 F.2d 593, 596 (5th Cir.) (op. on reh’g 

en banc), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).
13

When reviewing a trial court’s ruling on a Miranda-violation claim, an 

appellate court conducts a bifurcated review: “it affords almost total deference the 

trial judge’s rulings on questions of historical fact and on application of law to fact 

questions that turn upon credibility and demeanor, and it reviews de novo the trial 

court’s rulings on application of law to fact questions that do not turn upon 

credibility and demeanor.” Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 

2012). A trial judge’s ultimate “custody” determination presents a mixed question 

of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). 

When a trial judge denies a motion to suppress and does not enter findings of fact, 

the evidence is viewed in the light most favorable to the trial court’s ruling, with 

the Court assuming that the trial court made implicit findings of fact that support 

its ruling as long as those findings are supported by the record. Herrera, 241 

S.W.3d at 527.

II. Appellant was not “in custody” within the meaning of Miranda

Appellant argues in his first issue that the trial court erred in failing to 

suppress his un-Mirandized statements and the physical evidence obtained by 

Officer Sims because those statements and evidence were obtained in violation of 

Miranda. In particular, he argues that “[f]rom the time [Appellant] placed his 

hands on the patrol vehicle, he was in a custodial interrogation, and he should have 
14

been read his Miranda rights.”5 He further argues that the “level of deprivation” 

only increased because he “was later arrested, placed in the patrol car, and then 

formally arrested and taken to jail.”6 The issue to be determined here is whether 

Appellant was “in custody” when the statements at issue were given. If Appellant 

was not “in custody” when the statements were given, then the statements were not 

required to be suppressed because “nothing in [Article 38.22] precludes the 

admission . . . of a statement that does not stem from custodial interrogation.”7

The evidence adduced from both the suppression hearing and trial shows the 

following:

1. Officer Sims detained Appellant near the Stripes store at Avenue Q and 

Marsha Sharp Freeway based on reasonable suspicion that Appellant had 

been involved in several vehicle burglaries a few blocks away from that 

area;

2. After seeing that Appellant was carrying a bag and a case, Sims had 

Appellant place the items on the ground and walk towards him due to 

concern that Appellant could have weapons in his possession;

 

5

(Appellant’s Br. at 10).

6

(Appellant’s Br. at 8).

7 TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5. The Court of Criminal Appeals’ construction of 

“custody” for purposes of Article 38.22 is consistent with the meaning of “custody” for Miranda

purposes. Herrera at 526.
15

3. Sims had Appellant place his hands on the hood of his patrol car so he could 

perform a pat-down search of Appellant due to his reasonable belief that 

Appellant could have weapons in his possession;

4. A patdown search was conducted, but nothing was found during the 

patdown;

5. Appellant was not free to leave at that time because Sims was conducting an 

investigative detention;

6. Sims asked for and received verbal consent to search Appellant’s pockets.

7. When Sims searched Appellant’s pockets, he located two debit cards in 

Appellant’s right front pocket, neither of which had Appellant’s name on 

them;

8. After seeing that neither of the cards had Appellant’s name on them, Sims 

asked who the cards belonged to;

9. After Appellant gave inconsistent stories about who the cards belonged to 

and where he found them, Sims placed Appellant in handcuffs to detain 

him—in part because there was a safety issue since Sims was still the only 

officer on the scene at that time—and put Appellant in his patrol car;

10.Appellant was not under arrest when he was placed in handcuffs since the 

handcuffing was part of an investigative detention to further investigate 

whether Appellant had the right to possess the debit cards;
16

11.Appellant was not informed that he was being placed under arrest for 

anything at that time;

12.After placing Appellant in his patrol vehicle, Sims asked for—and 

received—verbal consent to search the bag and case that Appellant had had 

with him;

13.When the bag was searched, Sims found (among other items) a checkbook 

with Harold and Shirley Dron’s names inside;

14.Appellant was then read his Miranda warnings since Sims wanted to ask 

Appellant specific questions about an offense that he believed had just 

occurred;

15.Appellant waived his Miranda rights and agreed to speak to Sims; and

16.After hearing Appellant’s story and unsuccessfully trying to locate the 

victims, Appellant was placed under arrest.

The trial court properly denied Appellant’s verbal motion to suppress the 

statements at issue. Though no findings of fact were filed, an implicit finding of 

fact supporting the trial court’s ruling would be that Appellant was not “in 

custody” at any time before the Miranda warnings were given because the 

investigative detention had not evolved into a custodial detention. This implicit 

finding of fact is supported by the record.
17

Appellant first argues that he was in custody when he was ordered to place 

his hands on the patrol vehicle because he was “deprived of his freedom of action 

in a very significant way—he was not free to leave when he was ordered to place 

his hands on the patrol vehicle.”8 However, the proper standard for determining 

custody is not whether the restriction on the detainee’s freedom of movement is 

just “significant”; instead, it must be to the degree associated with an arrest. State 

v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012), citing Dowthitt at 255; 

Herrera at 525.

Under the proper standard, Officer Sims’ actions in having Appellant place 

his hands on the hood of his patrol car did not elevate the situation beyond an 

investigative detention since it was part of a permissible Terry9frisk—in that Sims 

reasonably believed that Appellant may be carrying a weapon. See Ramirez v. 

State, 105 S.W.3d 730, 739-40 (Tex. App.—Austin 2003, no pet.). Likewise, the 

search of his pockets did not convert the investigative detention into a custodial 

detention since it was simply a continuation of the investigative detention and did 

not constitute a restriction upon freedom of movement that would be associated 

with an arrest as opposed to an investigative detention. 

 

8

(Appellant’s Br. at 8).

9 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
18

Appellant further argues that the deprivation of freedom of movement 

continued when he was later “arrested” and placed in the patrol car before being 

formally arrested.10 However, his argument seems to be predicated on his belief 

that the officer’s act of handcuffing him and placing him in his patrol car equates 

to custodial (as opposed to investigative) detention. But, placing handcuffs on a 

defendant and placing him or her in a patrol car does not, in and of itself, mean that 

a suspect is “in custody” for Miranda purposes. See Wert v. State, 383 S.W.3d 747, 

754 (Tex. App.—Houston [14th Dist.] 2012, no pet.), citing Balentine v. State, 71 

S.W.3d 763, 771 (Tex. Crim. App. 2002). Instead, handcuffing is “only one of a 

range of relevant factors” to rely upon in determining whether a defendant is in 

custody for Miranda purposes. See Ortiz, 382 S.W.3d at 374.

Under the facts of this case, the handcuffing and placement of Appellant in 

the patrol car did not convert the investigative detention into a custodial detention. 

Sims handcuffed Appellant and placed him into the patrol car after hearing the 

inconsistent explanations about the debit cards. Appellant was not told that he was 

being placed under arrest or that Sims had probable cause to believe he had 

committed an offense. Instead, Sims placed Appellant in handcuffs for officer 

safety reasons because he suspected that a crime had occurred (but without

relaying that suspicion to Appellant) and he (Sims) was still by himself at the time. 

 

10 (Appellant’s Br. at 8).
19

The handcuffing was part of the continued investigative detention so Sims could 

further investigate whether Appellant had the right to possess the debit cards. Thus, 

the act of handcuffing Appellant for officer safety reasons and placing him in his 

patrol car was part of a valid investigative detention while the investigation into 

Appellant’s legal right to possess the debit cards was ongoing.11

Based on the objective circumstances of the interrogation, Appellant was not 

“in custody” for Miranda or Article 38.22 purposes until after the bag had been 

searched and the checkbook was located. That is because a reasonable person 

would not believe that he or she was “in custody” until that point. Contrary to 

Appellant’s contention,12 this was not a case where the practice of “question first 

and warn later” was used in the hopes of obtaining incriminating evidence and then 

delivering the Miranda warnings “midstream.”13 A “question first and warn later” 

policy presupposes that the suspect is in custody when he or she is interrogated and 

 

11 See Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997) (finding that the 

handcuffing of the appellant was part of a proper temporary investigative detention based on 

officer safety considerations); cf. Ortiz at 374-75 (finding that the handcuffing had changed the 

detention into a custodial arrest because the officers stated in the appellee’s presence that they 

had found something illegal or dangerous on the appellee’s wife’s person and the officers 

handcuffed the appellee at the same time his wife was handcuffed, thereby conveying to the 

appellee the officers’ belief that the appellee was associated with his wife’s illicit behavior).

12 (Appellant’s Br. at 7, 10-11).

13 See Missouri v. Seibert, 542 U.S. 600, 609-17, 124 S.Ct. 2601, 2608-13, 159 L.Ed.2d 643 

(2004) (discussing the police tactic of intentionally withholding Miranda warnings until after 

interrogating and drawing out a confession before giving the Miranda warnings and then asking 

for a waiver, after which the officers would elicit a subsequent incriminating statement—known 

as the “question-first” tactic); Martinez v. State, 272 S.W.3d 615, 619-21, 626-27 (Tex. Crim. 

App. 2008) (discussing the “two-step strategy” of interrogating first and warning later).
20

is only given Miranda warnings after a confession is given.14 That debunked policy 

was not at issue here, however, since Appellant was not in custody when he gave 

the relevant statements at issue.

III. Even if Appellant was “in custody” when he was handcuffed, 

the officer’s action in asking for consent to search did not 

constitute “interrogation” for Miranda purposes

For the reasons noted above, the handcuffing did not constitute “custody” 

for Miranda purposes. As such, there is no need to consider whether Appellant had 

been interrogated when he was asked for consent to search the bag and case. But, 

even if he was in “custody” when he was handcuffed and placed in the back of the 

patrol car, Miranda warnings were still not required to be given since he was not 

being interrogated when he was asked for consent to search the bag and case. 

Interrogation, for Miranda purposes, “refers not only to express questioning, 

but also to any words or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know are reasonably likely 

to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 

U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). However, the act 

of asking for consent to search does not constitute interrogation since the act of 

 

14 See Seibert, 542 U.S. at 604, 124 S.Ct. at 2605 (“This case tests a police protocol for custodial 

interrogation that calls for giving no warnings of the rights to silence and counsel until 

interrogation has produced a confession.”) (emphasis added); Martinez, 272 S.W.3d at 627 (“In 

this case, the officers did not apprise appellant of his Miranda rights when they began custodial 

interrogation and failed to apply any curative measures in order to ameliorate the harm caused 

by the Miranda violation.”) (emphasis added).
21

granting consent is not, in and of itself, an incriminating statement or testimonial

for Fifth Amendment purposes. See U.S. v. Stevens, 487 F.3d 232, 242 (5th Cir.), 

cert. denied, 552 U.S. 936, 128 S.Ct. 336, 169 L.Ed.2d 236 (2007); Jones v. State, 

7 S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

Sims’ act of asking for consent to search the bag and case was not 

reasonably likely to elicit an incriminating response from Appellant—and 

Appellant’s act of granting consent to search did not constitute an incriminating 

statement. After Appellant was placed in handcuffs and put in the patrol car, Sims 

asked for and was granted verbal consent to search the bags.15 The next verbal 

statement from Appellant that shows up in the record was Appellant’s waiver of 

his Miranda rights and agreement to speak to Officer Sims.16 Since there was no 

interrogation for Miranda purposes when Sims asked for and received consent to 

search the bag and case, the granting of consent is admissible.

IV. Even if Appellant was “in custody” when some or all of the 

relevant statements were given, the physical evidence, i.e., the 

checkbook and other evidence, would not have been required 

to be suppressed

The failure to give a suspect the Miranda warnings does not require 

suppression of the physical fruits of the suspect’s unwarned but voluntary 

statements. U.S. v. Patane, 542 U.S. 630, 634, 124 S.Ct. 2620, 2624, 159 L.Ed.2d 

 

15 (RR vol. 3, pp. 125-26; vol. 4, p. 26).

16 (RR vol. 3, p. 128; vol. 4, p. 37).
22

667 (2004) (plur. op.); Jones v. State, 119 S.W.3d 766, 773 (Tex. Crim. App. 

2003); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997); In re H.V., 252 

S.W.3d 319, 329 (Tex. 2008). In Patane, the U.S. Supreme Court determined that 

the nontestimonial fruit of a voluntary statement given in the absence of Miranda

warnings, i.e., the weapon that formed the basis of the defendant’s felon-inpossession-of-firearm trial, was not required to be suppressed since the weapon 

was recovered based on the suspect’s voluntary statements that he possessed it and 

advising the officers where it could be found. Patane, 542 U.S. at 634-35, 643, 124 

S.Ct. at 2624-25, 2630.

Even if Appellant had been in custody for Miranda purposes when the 

checkbook and other physical evidence was located during the searches, that would 

not require suppression of the physical evidence since Appellant voluntarily 

consented to a search of the bag from which the physical evidence at issue was 

located (as discussed in the preceding section of this brief). The evidence shows 

that Appellant gave voluntary consent to search both his pockets17 and the bag and 

case he had been carrying.18 There was never any argument presented during the 

suppression hearing that his consent to search was involuntary. While Appellant 

did argue at the conclusion of the suppression hearing that he could not make the 

 

17 (RR vol. 3, pp. 122, 136; vol. 4, p. 23).

18 (RR vol. 3, pp. 125-26) (RR vol. 4, p. 26).
23

decision to consent without first being provided his Miranda warnings,

19 that is not 

the proper standard for determining voluntariness of consent. Instead, the question 

in determining whether consent to search is voluntary is “whether the person’s 

‘will ha[s] been overborne and his capacity for self-determination critically 

impaired,’ such that his consent to search must have been involuntary.” Meekins v. 

State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011).

In light of the evidence showing that Appellant was cooperative throughout 

the investigation, consented both to a search of his pockets and the bag and case he 

had been carrying, and that he waived his Miranda warnings and agreed to speak 

to Officer Sims, the evidence shows that Appellant’s consent to the search of the

bag was voluntary.20 Thus, because the consent to search the bag was voluntary, 

the physical fruits of the unwarned but voluntary statements (the checkbook and 

the identity of the owner of the checkbook) did not require suppression, even if the 

un-Mirandized statements did require suppression. 

Because the physical fruits of the unwarned but voluntary statements were 

not required to be suppressed, any error in the admission of the un-Mirandized

statements was harmless beyond a reasonable doubt (under a constitutional harm 

 

19 (RR vol. 3, p. 158).

20 See generally Meekins, 340 S.W.3d at 462-64 (determining that the consent to search was 

voluntary in light of the defendant’s actions in cooperating with the officer by giving consent and 

then stepping out of the vehicle so the officer could perform a search).
24

analysis21) since “the record does not support a conclusion that the trial court’s 

error probably caused the rendition of an improper judgment.”22 This is so because 

the improper un-Mirandized statements (if any) amounted to evidence that 

Appellant gave inconsistent statements about who the debit cards belonged to and 

where he found them (since the act of consenting to a search did not constitute 

interrogation). The testimony about the inconsistent statements, however, did not 

relate to the issue of whether Appellant possessed identifying information of the 

victim without her consent and with the intent to harm or defraud her—which was 

proven not by the un-Mirandized statements, but by the testimony that Appellant 

possessed the checkbook without the victim’s consent after the checkbook had 

been stolen from her. Therefore, any error from the erroneous admission of the unMirandized statements did not “materially affect[] the jury’s deliberations”23 and 

was therefore harmless.

 

21 See Jones, 119 S.W.3d at 777-83 (applying a Rule 44.2(a) constitutional harm analysis to a 

Miranda violation).

22 See In re J.T.M., 441 S.W.3d 455, 463-66 (Tex. App.—El Paso, no pet.) (finding that the error 

from admission of an un-Mirandized statement where the defendant admitted to having 

additional marijuana in the Chevy Tahoe was harmless because there was sufficient evidence 

affirmatively linking the defendant to the marijuana found in the vehicle even without his postarrest statement—with some of that evidence being the physical fruits of the first statement (i.e., 

the marijuana which the defendant removed from his pocket and placed on the hood of the patrol 

car)).

23 Jones, 119 S.W.3d at 777.
25

V. The evidence is legally sufficient to support the conviction

Appellant argues in his second issue that the evidence presented at trial was 

insufficient to prove that Appellant fraudulently used or possessed identifying 

information. In particular, he argues that without Officer Sims’ testimony, which 

should have been suppressed, the evidence was insufficient to prove that Appellant 

committed the offense of fraudulent use or possession of identifying information 

because no witnesses were able to identify Appellant as the person who allegedly 

burglarized vehicles.

In assessing the sufficiency of the evidence, an appellate court views all the

evidence in the light most favorable to the verdict and determines, based on that 

evidence and any reasonable inferences therefrom, whether a rational jury could 

have found the essential elements of the offense beyond a reasonable doubt. Gear 

v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia, 

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). “Sufficient 

evidence is ‘such evidence, in character, weight, or amount, as will legally justify 

the judicial or official action demanded.’ In criminal cases, only that evidence 

which is sufficient in character, weight, and amount to justify a factfinder in 

concluding that every element of the offense has been proven beyond a reasonable 

doubt is adequate to support a conviction.” Brooks v. State, 323 S.W.3d 893, 917 

(Tex. Crim. App. 2010) (plur. op.) (Cochran, J., concurring). A sufficiency review 
26

determines whether “the necessary inferences made by the trier of fact are 

reasonable, based upon the cumulative force of all the evidence.” Adames v. State, 

353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

Appellant’s sufficiency argument is contingent upon his assertion that 

Officer Sims’ testimony was improperly admitted into evidence. However, that 

claim lacks merit for the reasons discussed in the preceding sections of this brief. 

Appellant’s statements during the course of the investigation were properly 

admitted during trial because Appellant was not in custody at the time the 

statements at issue were given. And, the physical evidence and consent to search 

obtained during the course of the investigation were properly admitted, even if the 

statements were not, because the fruit of the poisonous tree doctrine does not 

require suppression of physical evidence obtained as a result of the un-Mirandized

statement.

Additionally, even if the statements and/or physical evidence were

improperly admitted, that would still not affect whether the evidence was sufficient 

to support the conviction. In conducting a legal sufficiency review, courts 

“‘determine whether the necessary inferences are reasonable based upon the 

combined and cumulative force of all the evidence when viewed in the light most 

favorable to the verdict.’ [The] review of ‘all of the evidence’ includes evidence 

that was properly and improperly admitted.” Clayton v. State, 235 S.W.3d 772, 
27

778 (Tex. Crim. App. 2007) (internal footnote omitted) (emphasis added); see also 

Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013) (stating that in 

conducting a legal sufficiency analysis, a reviewing court “must consider the 

cumulative force of all the evidence, including improperly admitted evidence.”) 

(internal footnote omitted). Thus, even if the statements and/or physical evidence 

was improperly admitted, the legal sufficiency review would still include both the 

statements and physical evidence. 

Under the proper standard, the evidence was legally sufficient to support the 

conviction. To commit the offense of fraudulent use or possession of identifying 

information (as alleged in the indictment here24), Appellant had to, with the intent 

to harm or defraud another, and without the consent of Shirley Dron, possess 

identifying information of Shirley Dron, i.e., her checkbook containing her name, 

address, bank routing number, and account number. See TEX. PEN. CODE ANN. § 

32.51(b)(1). As shown from the trial testimony, Appellant possessed Shirley 

Dron’s checkbook with the intent to harm or defraud her, and that the possession of 

the identifying information was without Ms. Dron’s consent.25 Therefore, based on 

the evidence admitted at trial (regardless of whether it was properly or improperly 

admitted), any rational trier of fact could have found the essential elements of the 

 

24 (CR p. 7).

25 (RR vol. 4, p. 60).
28

offense of fraudulent use or possession of identifying information beyond a 

reasonable doubt.

Conclusion

The trial court properly denied Appellant’s verbal motion to suppress and 

allowed the admission of the statements into evidence during trial because the 

statements were not given while Appellant was “in custody” for Miranda purposes.

Even if he was “in custody” for Miranda purposes, however, Appellant’s consent

to search the bag and case and the physical fruits of the search were not required to 

be suppressed, even if some or all of Appellant’s pre-Miranda statements were 

required to be suppressed. Any error in the “improper” admission of the preMiranda statements was harmless beyond a reasonable doubt because the physical 

fruits of the search were not required to be suppressed—which was the evidence 

that led to Appellant’s conviction for the offense of fraudulent use or possession of 

identifying information. Furthermore, the evidence was legally sufficient to 

support the conviction since all the evidence admitted during trial, regardless of 

whether it was properly or improperly admitted, is considered in a legal sufficiency 

review.

Appellant’s first and second issues should be overruled.
29

Conclusion and Prayer

For the reasons stated above, no reversible error has been committed and the 

State respectfully requests that the Court should affirm the judgment and sentence 

in all things. 

Respectfully submitted,

MATTHEW D. POWELL

Criminal District Attorney

State Bar No. 00784782

By: /s/ Jeffrey S. Ford

Jeffrey S. Ford

Assistant Criminal District Attorney

Lubbock County, Texas

State Bar No. 24047280

P.O. Box 10536

Lubbock, Texas 79408

(806)775-1166

FAX (806)775-7930

E-mail: JFord@co.lubbock.tx.us

Certificate of Service

I certify that a true copy of the foregoing brief has been delivered to Julie 

Panger, Attorney for Appellant, by e-mail delivery to julie@thelubbocklawyer.com

on July 14, 2015.

MATTHEW D. POWELL

Criminal District Attorney

State Bar No. 00784782

By: /s/ Jeffrey S. Ford

Jeffrey S. Ford
30

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the 

word count of the computer program used to prepare the foregoing State’s 

Response, this document contains 6,354 words, inclusive of all portions required 

by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.

MATTHEW D. POWELL

Criminal District Attorney

State Bar No. 00784782

By: /s/ Jeffrey S. Ford

Jeffrey S. Ford