No. 01-14-00886-CR 

In the

Court of Appeals for the First District of Texas

At Houston

Cause No. 1389543

In the 248th District Court

Of Harris County, Texas

ANA MARIA GONZALEZ-ANGULO

Appellant

v.

THE STATE OF TEXAS

Appellee

APPELLANT’S BRIEF

Barbara A. Drumheller 

8501 Katy Fwy, Ste 201

Houston, Texas 77024

713-504-4492

Texas Bar No. 00793643

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00886-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/23/2015 2:14:34 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/23/2015 2:14:34 PM CHRISTOPHER A. PRINE Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Appellant: Ana Maria Gonzalez-Angulo

Counsel for Appellant at Trial:

Derek Hollingsworth

Texas Bar No. 24002305

Andy Drumheller

Texas Bar No. 00793642

Rusty Hardin & Associates

1402 McKinney, Suite 2250

Houston, Texas 77010

713-652-9000

John William Belk

Texas Bar No. 24038763

John William Belk & Associates

5 Houston Center

1401 McKinney, Suite 2250

Houston, Texas 77010

713-652-9044

Counsel for Appellant on Appeal:

Barbara A. Drumheller

650 West Bough Lane, Ste 150-130

Houston, Texas 77024

713-504-4492

Texas Bar No. 00793643

Counsel for the State at Trial:

Justin Keiter

Texas Bar No. 24044225

Nathan Hennigan

Texas Bar No. 24058612

Eric Kugler

Texas Bar No. 00796910

Assistant District Attorneys

1201 Franklin

Houston, Texas 77002

713-755-5800

Trial Judge: The Honorable Katherine Cabaniss
3

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................. 2

TABLE OF CONTENTS ............................................................................ 3

INDEX OF AUTHORITIES....................................................................... 5

STATEMENT OF THE CASE................................................................... 8

ISSUE PRESENTED .................................................................................. 9

The trial court erred by denying Ana Maria GonzalezAngulo’s motion for new trial based on newly discovered 

evidence.

The evidence presented at trial was insufficient to sustain 

a conviction for aggravated assault because the State was 

unable to connect Ana Maria Gonzalez-Angulo with the 

injuries sustained by the complainant.

The State failed to establish Ana Maria Gonzalez-Angulo 

was “in a dating relationship” under the terms of the 

Family Code and the Penal Code and the evidence was 

insufficient to support the offense as pled in the 

indictment.

The trial court erred by allowing a State’s witness to 

identify Ana Maria Gonzalez-Angulo’s voice in a 

surreptitiously recorded telephone call based on two prior 

anonymous telephone conversations during which the 

State’s witness never learned the identity of the person 

with whom he was talking.
4

SUMMARY OF THE ARGUMENT........................................................ 10

APPELLANT’S POINT OF ERROR ....................................................... 47

PRAYER ................................................................................................... 62

CERTIFICATE OF SERVICE.................................................................. 63
5

INDEX OF AUTHORITIES

Cases

Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) ....................... 21, 26

Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009). ....................... 29

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012);.......................... 57

Boyett v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985)............................ 35

Cada v. State, 334 S.W.3d 776 (Tex. Crim. App. 2011). ............................ 42

Carsner v. State, 444 S.W.3d 1 (Tex. Crim. App. 2014)............................. 34

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ........................ 44

Coyler v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) ........................... 35

Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir. 1988) .................................... 27

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009)........................ 21

Garcia v. State, 367 S.W.3d 687 (Tex. Crim. App. 2012)........................... 44

Garza v. State, 633 S.W.2d 508 (Tex. Crim. App. [Panel Op.] 1981)......... 24

Giglioblanco v. State, 201 S.W.3d 637 (Tex. Crim. App. 2006)................. 30

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013).......................... 46

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009). .......................... 33

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007).............................. 44

Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999). ............................ 21
6

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

(1979)........................................................................................................... 42

Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002). .............................. 34

Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ......................... 21

Madden v. State, 799 S.W.3d 683 (Tex. Crim. App. 1990)......................... 23

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).......... 26

Odelugo v. State, 443 S.W.3d 131 (Tex. Crim. App. 2014);....................... 35

Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010). ......... 44

Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012).............................. 34

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008),......................... 48

Sanchez v. State, ---S.W.3d--- (Tex. App.—Eastland, 2015)...................... 53

Sierra v. State, 266 S.W.3d 72 (Tex. App.—Houston [1st Dist.] 2008, 

pet ref’d)........................................................................................................ 26

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Forth Worth 2014, 

no pet.). ................................................................................................... 49, 50

Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009). ............................ 33

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967);.. 23

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013).................... 46, 48

Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). ..................... 57

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 

(1967). ....................................................................................................... 23

Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)........................ 53
7

Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003);........................ 34

Statutes

TEX. CODE CRIM P. ANN. art 42.12 sec. 4(d)................................................ 14

TEX. CODE CRIM. P. ANN. art. 42.12 sec 4.................................................... 11

TEX. CRIM. P. ANN. art. 37.01 (Vernon 2010). ............................................... 9

TEX. CRIM. P. ANN. art. 37.04 (Vernon 2010)................................................ 9

Tex. Pen. Code Ann. sec. 12.33(a) ............................................................... 11

TEX. PENAL CODE 12.33 ............................................................................... 14

Rules

Tex. R. App. P. 21.3(f) ................................................................................. 15

Tex. R. App. P. 43.2(b .................................................................................. 17
8

STATEMENT OF THE CASE

Ana Maria Gonzalez-Angulo was charged by indictment with the 

felony offense of aggravated assault, dating relationship (C.R. 23). In 

particular, she was charged with unlawfully, intentionally and knowingly 

causing serious bodily injury to a person with whom she had a dating 

relationship by poisoning the complainant with ethylene glycol, a deadly 

weapon (C.R. 23). The indictment included an alternative charge alleging 

she unlawfully, intentionally and knowingly caused serious bodily injury to 

a person with whom she had a dating relationship by causing the 

complainant to ingest ethylene glycol, a deadly weapon (C.R. 23). The 

appellant pled not guilty and the case was tried before a jury (R.R.5 – 18). 

The jury found appellant guilty as charged in the indictment (C.R. 156). 

Thereafter, the jury assessed punishment at confinement for ten years in the 

Institutional Division of the Texas Department of Criminal Justice and also 

assessed a $10,000 fine (C.R. 156). Motion for new trial was timely filed on 

October 29, 2014 and notice of appeal was timely filed.
9

ISSUES PRESENTED

The trial court erred by denying Ana Maria GonzalezAngulo’s motion for new trial based on newly discovered 

evidence.

The evidence presented at trial was insufficient to sustain 

a conviction for aggravated assault because the State was 

unable to connect Ana Maria Gonzalez-Angulo with the 

injuries sustained by the complainant.

The State failed to establish Ana Maria Gonzalez-Angulo 

was “in a dating relationship” under the terms of the 

Family Code and the Penal Code and the evidence was 

insufficient to support the offense as pled in the 

indictment.

The trial court erred by allowing a State’s witness to 

identify Ana Maria Gonzalez-Angulo’s voice in a 

surreptitiously recorded telephone call based on two prior 

anonymous telephone conversations during which the 

State’s witness never learned the identity of the person 

with whom he was talking.
10

SUMMARY OF THE ARGUMENT

The trial court erred in overruling the appellant’s motion for new trial 

based on newly discovered evidence. If a defendant discovers new evidence 

within thirty days of the verdict and the four-part test is met, the granting of 

a new trial is not discretionary. In this case, Mary Kara Bucci’s testimony 

was newly discovered evidence and it satisfied all four prongs of the test so 

Ana Maria Gonzalez-Angulo should have been granted a new trial.

The evidence in this case was insufficient to prove the elements of 

aggravated assault. Circumstantial evidence is treated exactly like direct 

evidence in a sufficiency review and can even be more probative than direct 

evidence in some situations. It must not amount to mere suspicion or a 

catalogue of bizarre behaviors, however, and the cumulative effect of all the 

incriminating facts must be sufficient to prove every element of the offense. 

The State was unable to connect the appellant to any wrongdoing and was 

not even able to prove the complainant was harmed by another person. At 

most, the State presented a case based on opportunity and suspicious 

behaviors that were unrelated to the actual injuries in the case.
11

The evidence wholly failed to establish a dating relationship between 

the appellant and the complainant. None of the witnesses at trial, including 

the complainant and the appellant, considered the relationship to be a dating

relationship. There was no evidence to contradict the complainant’s explicit 

testimony that they were friends and colleagues and not involved in a dating 

relationship.

The rules of evidence provide authentication and identification 

procedures for identifying voices prior to admitting audio recordings into 

evidence. In this case, the State sought to do the opposite of what the rules 

anticipate. The State elicited testimony from an investigating witness about 

an anonymous caller. The witness spoke to the anonymous caller more than 

a year before trial. The State tried to get the witness to identify the 

anonymous caller as the appellant in this case by asking him to listen to a 

recording of her voice and decide whether or not the person in the recording 

was the same person he had spoken to anonymously over a cell phone more 

than a year before. This testimony was harmful to the appellant because 

there was a substantial risk of misidentification and it allowed the State to 

give the jury the impression that she was the anonymous caller.
12

STATEMENT OF APPLICABLE FACTS

Ana Maria Gonzalez-Angulo worked closely with the complainant, 

Dr. George Blumenschein, at the M.D. Anderson Cancer Center (R.R.9 –

157-158). The two doctors collaborated on cancer research over a period of 

several years (R.R.9 – 157-158). The complainant had a relationship with 

Dr. Evette Toney, a former M.D. Anderson employee, who was variously 

described by witnesses at trial as his common-law wife (R.R.5 – 176, 7 -

218), his “long-term girlfriend” (R.R.5 – 95), his “on-again, off-again 

girlfriend” (MNT Bucci Affidavit) and his “live-in girlfriend”. The 

complainant characterized his relationship with Evette Toney as a 

committed, serious relationship in which they were “taking the next step,” 

(R.R.9 – 215) a relationship spanning approximately sixteen years at the 

time of trial, but also described himself as a bachelor who feared 

commitment (R.R.9 – 216). 

While he was living with Evette Toney in what she believed to be a 

monogamous relationship, the complainant began a casual sexual 

relationship with Ana Maria Gonzalez-Angulo sometime around the spring 

or summer of 2011 (R.R.9 – 161). Both parties referred to this development 

as “just sex” inside a relationship that was ninety-five percent or more based 
13

on work and research collaboration (R.R.10 – 48; R.R.11 – 85-87). The 

complainant had engaged in these kinds of purely sexual, casual work 

arrangements with other colleagues in the past (MNT Bucci Affidavit, Belk 

Affidavit), and made a distinction between what he considered “real” or 

romantic sex – intercourse – and the oral sex he enjoyed as part of his work 

affairs (R.R.9 – 167-168). When colleagues questioned the complainant 

about his private life or his affairs with women at work, he lied and said 

there was nothing sexual involved (R.R.9 – 173, 10 - 69). In particular, the 

complainant’s supervisor, Bonnie Glisson, thought the complainant’s 

attentions to Ana Maria Gonzalez were “unseemly,” but when she asked him 

about her suspicions and about the rumors going on in the office that there 

was a sexual relationship between them, the complainant adamantly denied 

it (R.R.10 – 90, R.R.7 – 104).

The complainant traveled frequently for work and his extracurricular 

sexual activities often took place during these trips (MNT Bucci Affidavit, 

R.R.12 – 10, 12, 13, R.R.10 – 42, 45). The complainant had arrived home 

from one of these trips on Saturday, January 26, 2013 (R.R.9 – 48-52, 240-

242). 

On the morning of January 27, 2013, a Sunday, the complainant had 

coffee at home but said he didn’t want to eat (R.R.6 – 64-65). He told Evette 
14

Toney he was going to work but drove over to Ana Maria GonzalezAngulo’s house instead (R.R.9 – 250). At her house, according to the 

complainant, he drank a sip of coffee and shared some cheese bread with her 

(R.R.9 – 251). The complainant told investigators and others, including the 

grand jury, that Ana Maria Gonzalez-Angulo drank the same coffee with 

him out of the same cup (R.R.10 – 65, 67). Evette Toney confirmed during 

direct and cross-examination that the complainant liked to share her 

beverages and that they frequently drank out of the same cup or glass. She 

said, “That’s just the way he is.” (R.R.11 – 21-22, 163-164). After 

breakfast, the complainant, a man twice the size of Ana Maria GonzalezAngulo, picked her up and carried her upstairs where they engaged in oral 

sex (R.R.10 – 74). They shared a shot of vodka out of a sealed, unopened 

bottle and went to the office (R.R.10 75-76, R.R.9 – 253-254).

The complainant and Ana Maria Gonzalez-Angulo worked in the 

offices of M.D. Anderson for much of the morning and afternoon. In the late 

afternoon, the complainant began complaining of dizziness and may have 

been slurring his words, although some of his colleagues at M.D. Anderson 

maintained he was acting “tired, but normal.” (R.R.9 – 267, R.R.6 – 160, 

170, 180-181). The complainant testified that Ana Maria Gonzalez-Angulo 

suggested he might be experiencing low blood sugar, and invited him to her 
15

home for some cheese and sausage (R.R.9 – 268, 270, 272). At her home, 

the complainant cut his thumb while trying to cut the sausage (R.R.9 – 273). 

The cut bled enough that the two doctors discussed going to the emergency 

room. Ultimately they decided to call a third doctor and close friend, an 

M.D. Anderson cancer surgeon, to bandage his cut (R.R.9 – 273, R.R.5 – 79-

80). Dr. Funda Meric-Bernstram testified at trial that Ana Maria GonzalezAngulo was concerned about the complainant’s cut and his behavior, which 

seemed unusual (R.R.5 – 80-88). Dr. Meric-Bernstram conducted some brief 

neurological tests and advised them to go to the hospital. The complainant 

did not wish to go to the hospital and insisted he would be fine (R.R.5 – 88). 

The complainant and Ana Maria Gonzalez-Angulo had an important work

dinner that evening with a senior staff member at M.D. Anderson. This 

doctor, Doctor Hwu, had invited Ana Maria Gonzalez-Angulo to dinner to 

discuss a potential career opportunity with her, and she suggested he include 

the complainant and another colleague, Cathy Eng (R.R.5 – 185, 210-215, 

R.R.5 – 239-341).

During dinner, the complainant continued to show signs of what 

appeared to be intoxication, dropping his phone several times, slurring his 

words, and knocking his head against a ledge behind the table (R.R.5 – 186-

187). Ana Maria Gonzalez-Angulo agreed with Drs. Hwu and Eng that the 
16

complainant should go to the hospital, but could not convince the 

complainant to do so (R.R.5 – 191-192). She texted Dr. Eng that the 

complainant was refusing to go to the E.R (R.R.5 – 194). At least one 

witness described Ana Maria Gonzalez as “frantic” about being unable to 

convince the complainant to go to the hospital.

The complainant accompanied Ana Maria Gonzalez-Angulo to her 

home after the work meeting because he was adamant about getting his car 

(R.R.9 – 279), as he had lied to Evette Toney that morning about where he 

was going. Ana Maria Gonzalez was worried about letting him drive but he 

got his keys from her (R.R.11 – 46). He agreed to drive to M.D. Anderson 

while she followed him (R.R.11 – 46). Evette Toney had been in touch with 

the complainant and Ana Maria Gonzalez off and on throughout the 

afternoon and also called Ana Maria Gonzalez about the complainant’s 

health (R.R.11 – 40-47, 180-185). In one text, she asked the complainant, 

“why are you doing this? You need to get your levels checked. Please come 

home.” (R.R.11 – 184). She met the complainant and Ana Maria Gonzalez at 

the hospital. She testified she was near tears out of concern for the 

complainant and believed he was dying based only on his intoxicated 

behavior (R.R.11 – 48-50). She began videotaping him, not for purposes of 

evidence collection, but just to record how bad he looked. The videotape 
17

was in evidence and shows the complainant talking to the treating nurse in a 

friendly, flirtatious manner. By all accounts, the complainant walked into the 

emergency room under his own power.

Many doctors and nurses, all colleagues and co-workers, cared for the 

complainant at M.D. Anderson. Both Ana Maria Gonzalez and a nurse in the 

ICU noticed the whitish sediment in the complainant’s Foley urine bag, 

suggesting the presence of crystals (R.R.5 – 161, 279, 296). The 

complainant was already beginning to show other signs of kidney damage 

(R.R.5 – 268). Dr. Lahoti, a nephrologist, began to suspect ethylene glycol 

ingestion because of the constellation of symptoms: signs of intoxication, 

metabolic acidosis as shown by his bloodwork, high levels of creatinine 

indicating kidney failure, and the shape and appearance of crystals visible in 

his urine as sediment and confirmed microscopically to be the unique shape 

associated with calcium oxalate (R.R5 – 269-280). Blood tests for ethylene 

glycol came back negative and no physical evidence or residue of ethylene 

glycol was presented at trial (R.R.5 – 300). No evidence was found during 

the investigation indicating the complainant ingested ethylene glycol or 

encountered it in the days prior to his hospitalization outside of the 

symptoms he experienced. One of the State’s experts, a leading toxicologist 

specializing in toxic alcohols like ethylene glycol, testified he was “very 
18

surprised there was no ethylene glycol in the complainant’s blood result.” 

(R.R.8 – 166). Nevertheless, through a process of elimination several 

experts, including Dr. Lahoti, arrived at a confident conviction that the 

complainant had ingested ethylene glycol. Ethylene glycol is a common 

solvent used at M.D. Anderson, as well as in the outside world in the form of 

antifreeze, and virtually everyone has access to ethylene glycol (R.R.5 – 272 

and other).

In the days immediately following his hospitalization, the complainant 

admitted to Evette Toney he had cheated on her with Ana Maria Gonzalez 

(R.R.11 – 78-79). According to Evette Toney, he also suggested that Ana 

Maria Gonzalez poisoned him with coffee that morning at her house, but 

urged her not to divulge the information to anyone (R.R.11 – 73-76, 77). 

According to Evette Toney, the complainant said, “let’s keep this just 

between ourselves. Let’s not tell anybody about this. Let’s not poke the 

dragon.” (R.R.11 – 76-77, 205) Evette Toney told investigators that “maybe 

it was some psycho waiter” who gave the complainant ethylene glycol 

(R.R.11 – 77). 

Evette Toney continued to text and communicate with Ana Maria 

Gonzalez, however, and even had a conversation with her about her sexual 

relationship with the complainant. Ana Maria Gonzalez told her, “it’s just 
19

sex,” and told her “he used you and he used me.” (R.R.11 – 79-86, 205-208). 

Ana Maria Gonzalez assisted Evette Toney with getting Family Medical 

Leave during the complainant’s hospitalization and kept her updated and 

informed about the complainant’s condition (R.R.11 – 208). 

The complainant told investigators he drank coffee with Ana Maria 

Gonzalez in the same cup throughout the day and, although he mentioned he 

did not like the taste of the coffee, he explained Ana Maria Gonzalez 

sweetened it with Splenda (R.R.10 – 65, 67, 61-62). At trial, more than a 

year later, he claimed the coffee was sickeningly sweet and he drank it to be 

polite even though he could barely stand the taste of it (R.R.9 – 258-259). 

He also claimed he participated in occasional sexual acts with Ana Maria 

Gonzalez because she flirted with him and he didn’t know what to do and 

didn’t want to offend her (R.R.9 – 162). The complainant had had a similar 

arrangement with another younger female colleague in the past, however, 

and she testified by affidavit that the complainant was flirtatious and he was 

the aggressor in the relationship (MNT Bucci Affidavit).

Ana Maria Gonzalez got wind of the complainant’s suppositions or 

accusations and cried in Jennifer Litton’s office about the complainant’s 

fixation on the coffee she had sweetened with Splenda (R.R.12- 70-71). She 

pointed out that she, like almost everyone at M.D. Anderson, had easy 
20

access to ethylene glycol in her laboratory, and expressed to at least one 

witness that she feared she might be blamed or suspected because of the 

private and secret nature of her relationship with the complainant. She 

voiced her concerns to several friends and colleagues about the possibility 

the complainant had ingested ethylene glycol, contemporaneously with Dr. 

Lahoti’s investigation going in the same direction (R.R.5 – 148, 160-161, 

R.R.6 – 163, R.R.7 – 116, R.R.12 – 69). She also voiced her opinion that the 

complainant did not seem like the kind of person who would commit suicide 

(R.R.6 – 163). Ana Maria Gonzalez suggested to several people that Evette 

Toney might be responsible or involved in the complainant’s ingestion of 

ethylene glycol. She referred to an incident in December when she’d been 

attacked at her home and gone with the complainant to the neighborhood 

police station where she had made a report (R.R.7 – 70-92, R.R.5 – 92). The 

people behind the attack were never identified but Ana Maria Gonzalez 

expressed fears that Evette Toney’s family might have been involved in it 

(R.R.5 – 90-91).

The complainant and Evette Toney decided to secretly tape record 

telephone conversations with Ana Maria Gonzalez. They recorded close to 

fifteen hours of telephone conversations, all initiated by the complainant, 

over many weeks before her arrest (R.R.10 – 106-109). The complainant 
21

never asked her whether she poisoned him with ethylene glycol or whether 

she did something to his coffee on the morning of his hospitalization, and 

changed the subject when she brought up another occasion when he had had 

similar symptoms (R.R.10 – 106-110). Evette Toney and the complainant 

decided not to mention their secret investigation to the police or to the grand 

jury and did not disclose the tapes of the telephone conversations to the State 

until immediately before trial (R.R.10 – 106-110). The complainant and 

Evette Toney also testified they received an anonymous threatening letter 

the previous November, but no letter was found or produced at trial.

APPELLANT’S FIRST POINT OF ERROR

The trial court erred by denying Ana Maria GonzalezAngulo’s motion for new trial based on newly discovered 

evidence.

Applicable Facts

After the verdict but before time had expired for filing a motion for 

new trial, a witness contacted defense counsel claiming she had pertinent 

information she did not disclose prior to trial (MNT). The witness provided 

an affidavit affirming that she was not forthcoming with the defense 

investigation prior to trial because she did not want her personal information 

disclosed in court proceedings or the news media (MNT, Bucci Affidavit). 
22

The witness provided testimony that rebutted the State’s “fatal attraction” 

theory of the case. She also provided information that showed the State and 

the State’s witnesses left the jury with a false impression regarding the 

complainant’s behavior toward female colleagues in the workplace, the state 

of his relationship with Evette Toney, and the degree to which Evette Toney 

demonstrated jealousy and possessiveness in their relationship. The trial 

judge held a hearing by affidavit on the motion for new trial and denied the 

motion, expressly stating on the record that she had reviewed the affidavits 

submitted by both the State and the defense. The appellant must satisfy the 

procedural requirements that the motion was timely filed and actually 

presented to the trial court within ten days’ of the motion’s filing date. Tex. 

R. App. P. 21.6; Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009).

Once these requirements are met, the defendant has a right to a hearing if the 

motion (1) raises matters that are not determinable from the record and (2) 

establishes reasonable grounds upon which the defendant could be entitled 

to a new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).

These requirements were met in the instant case.
23

Standard of Review

The Code of Criminal Procedure mandates “a new trial shall be 

granted an accused where material evidence favorable to the accused has 

been discovered since trial.” Tex. Code Crim. P. Ann. art. 40.001 (West 

2014) (emphasis added). A ruling on a motion for new trial is reviewed 

under an abuse of discretion standard. Keeter v. State, 74 S.W.3d 31, 37 

(Tex. Crim. App. 2002). The decision should be reversed if the trial judge’s 

opinion was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 

457 (Tex. Crim. App. 2012).

Arguments and Authorities

In order for a defendant to be entitled to a new trial on the basis of 

newly discovered evidence, a four-prong test must be satisfied: (1) the newly 

discovered evidence was unknown or unavailable to the defendant at the 

time of trial; (2) the defendant’s failure to discover or obtain the new 

evidence was not due to the defendant’s lack of due diligence; (3) the new 

evidence is admissible and not merely cumulative, corroborative, collateral 

or impeaching; and (4) the new evidence is probably true and will probably 

bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 

103, 108 (Tex. Crim. App. 2003); Carsner v. State, 444 S.W.3d 1, 2-3 (Tex. 

Crim. App. 2014). The trial court abuses its discretion if the record shows 
24

these four factors are met. Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. 

App. 1985). Although the trial judge has discretion to disbelieve testimony, 

there must be at least one reasonable view of the record that would support 

the trial court’s denial of the motion for new trial, notwithstanding the 

“uncontroverted” nature of the appellant’s evidence. See Odelugo v. State, 

443 S.W.3d 131 (Tex. Crim. App. 2014); see also, Coyler v. State, 428 

S.W.3d 117 (Tex. Crim. App. 2014) (explaining that the trial judge can 

disbelieve uncontroverted but patently biased evidence, as in the case of an 

alibi provided by the defendant’s mother).

In the instant case, the witness Kara Bucci testified via affidavit that 

she was contacted prior to trial by the defense and a lawyer “specifically 

asked if I had had any romantic or intimate involvement with George. I told 

him we were professional colleagues and friends only. I denied any romantic 

or intimate involvement because I did not want my personal, private 

relationship with George scrutinized in court proceedings or through the 

news media.” Affiant John William (“Billy”) Belk confirmed he interviewed 

the witness by telephone prior to trial but the witness was not truthful with 

him.” (MNT, Bucci Affidavit).

The evidence provided by Mary Kara Bucci, including her knowledge 

about his relationship with Evette Toney and his feelings for Ana Maria 
25

Gonzalez, as well as other facts not known to the appellant, did not initiate 

with the appellant and could not have been discovered by her or her 

investigators prior to trial. Both affiants Billy Belk and Mary Kara Bucci 

affirmed that the defense exercised due diligence in its investigation and the 

lack of knowledge about Mary Kara Bucci’s information was not due to any 

fault on the part of defense counsel. Thus, the record satisfies the first two 

prongs of the test.

The third prong concerns whether the newly discovered evidence is 

admissible and not cumulative, corroborative, collateral or impeaching. 

Mary Kara Bucci provided several pieces of crucial evidence for the defense 

in her affidavit. First, she stated that she had a romantic and intimate 

relationship with the complainant in 2007, while he was in a relationship 

with Evette Toney, and noticed he had a “spark of interest” in Ana Maria 

Gonzalez as early as 2007. This evidence contradicted both the 

complainant’s testimony at trial and the characterization of the evidence by 

the State. It also shows that the complainant admired Ana Maria Gonzalez 

long before she was aware of any relationship between them, and indicates 

that the complainant may have targeted her for sexual harassment as early as 

2007, unbeknownst to Ana Maria Gonzalez. Second, Mary Kara Bucci 

affirmed the complainant was very flirtatious and that he pursued her under 
26

circumstances extremely similar to the ones that occurred with Ana Maria 

Gonzalez. In particular, he abused his position of authority by pursuing her, 

a younger professional colleague, in order to engage in a casual sexual 

relationship with her from summer 2006 until January 2010. Just as with 

Ana Maria Gonzalez, this “relationship” consisted of oral sex at professional 

conferences and at the home of the female colleague.

At trial, the State and the complainant gave the jury the impression 

that the complainant was in a stable, happy and monogamous long-term 

relationship with Evette Toney and that it was Ana Maria Gonzalez who 

became obsessed and aggressively pursued him (R.R.9 – 162). He left the 

jury with the false impression that he only had an affair with her because he 

was too nice to say no (R.R.9 – 162). Had Ana Maria Gonzalez known about 

his similar relationship with Mary Kara Bucci, she would have been able to 

show a pattern of relationships he initiated with younger female colleagues 

for his own benefit. This evidence, in turn, would have refuted the State’s 

implications about motive and opportunity, which were key to its 

circumstantial case.

Mary Kara Bucci stated that she believed the complainant was 

unhappy with Evette Toney and did not want to stay in the relationship, that 

Evette Toney pursued him with repeated phone calls on two phone lines 
27

while they were together, and that he was beaten down by her attempts to 

reach him (MNT, Bucci Affidavit). This evidence fits with evidence given 

by Sherry Krantz about Evette Toney’s jealous and possessive behavior 

(MNT, Belk Affidavit). Evette Toney testified at trial that she took the 

complainant’s word at face value and believed him when he said he was not 

having an affair with Ana Maria Gonzalez. The evidence presented in the 

motion for new trial tells a different side of the story and provides important 

information bearing on the nature of the relationship between the 

complainant, Evette Toney, and his various work affairs. 

Finally, Mary Kara Bucci stated that in July 2012, when she invited 

the complainant to speak at a conference, he told her his relationship with 

Evette was over and indicated that he had romantic feelings for Ana Maria 

Gonzalez. At trial, the complainant and Evette Toney both testified they 

were in a committed relationship in July 2012 and, in fact, Evette Toney was 

pregnant with twins at that time. 

The record must establish that the new evidence is probably true and 

will probably bring a different result in a new trial. Mary Kara Bucci gave 

specific and telling details in her affidavit with no motivation to lie and at 

personal risk to her own reputation and privacy. She is a licensed physician 

living in Palmer, Alaska, who contacted Ana Maria Gonzalez’ trial lawyers 
28

on her own initiative to tell the truth about what she knew. She and Ana 

Maria Gonzalez had never met and were not friends.

The evidence she provided in her affidavit changes the probable 

outcome of a trial in several respects. First, the similarity of her relationship 

with the complainant and the doubt it casts on his version of events could 

persuade the trial court to reconsider its ruling on the State’s motion in 

limine about the complainant’s extra-marital affairs. The court granted the 

State’s motion in limine on the basis that the complainant’s extra-marital 

affairs were too remote in time and not relevant to issues in the trial (R.R.5 –

7-12). Mary Kara Bucci, however, was engaged in an affair with the 

complainant until 2010, and remained close friends with him up to and 

including the time period covered by testimony in the trial (MNT, Bucci 

Affidavit, Blumenschein Affidavit). Moreover, her knowledge of his 

relationship with Evette and his feelings for Ana Maria Gonzalez were 

relevant and the jury was left with a false impression about these things 

without her testimony.

Second, the information provided by Mary Kara Bucci indicates that 

the complainant left a false impression with the jury regarding his feelings 

for Evette Toney and his intentions about starting a family with her.
29

Third, the evidence at trial gave the jury a false impression about 

Evette Toney and her level of possessiveness and jealousy concerning the 

complainant, as evidenced by Mary Kara Bucci’s disclosures about her 

repeated and frequent phone calls to him when they were together.

Fourth, the information provided by Mary Kara Bucci rebuts the 

State’s characterization of the complainant and Ana Maria Gonzalez in a 

“fatal attraction” relationship, wherein Ana Maria Gonzalez pursued the 

complainant. Contrary to this characterization, Mary Kara Bucci recalls the 

complainant developing an interest in Ana Maria Gonzalez as early as 2007, 

long before their relationship was anything other than professional. Ana 

Maria Gonzalez had no way of knowing this fact and could not have known 

she was targeted by the complainant for sexual harassment without this 

information. Furthermore, Mary Kara Bucci affirms that the complainant 

was flirtatious and pursued her to begin a relationship extremely similar to 

the one he began with Ana Maria Gonzalez, contrary to the State’s theory 

that Ana Maria Gonzalez chased or bullied the complainant into a 

relationship.

The State provided an affidavit by the complainant purporting to 

dispute the statements made by the new witness (C.R. 190). A careful read 

of the complainant’s affidavit, however, reveals that not only does it fail to 
30

explicitly refute the sworn testimony of a disinterested witness, it confirms it 

in crucial respects. For example, the complainant takes issue with Mary Kara 

Bucci’s characterization of their relationship when she says, “we spent time 

together in a romantic context both at home in Houston as well as when we 

were out of town on business trips.” His response is that they did not 

schedule “dates,” he does not recall having dinner with her alone, they did 

not schedule “romantic dinners” and they did not plan trips to be together 

(C.R. 190-192). A careful read of what each witness says, however, shows 

that Mary Kara Bucci never claimed they planned out-of-town trips to be 

together or scheduled romantic dinners. Instead, she indicates that they had 

an intimate relationship when they were out of town together on business 

and spent time in Houston on an intimate basis. The complainant never 

explicitly contradicted Mary Kara Bucci’s contention that they had an 

“intermittently romantic or intimate” relationship over three and a half years, 

beginning in the summer of 2006 (MNT, Bucci Affidavit). Instead, he 

specifically admitted to a period of sexual involvement with Mary Kara 

Bucci that fit conveniently within a time he had already established as a 

period of breakup with Evette Toney (C.R. 190-192). He stated in his 

affidavit that he believed the sexual aspect of their relationship ended in 

2009 but does not state unequivocally that this was the case. Likewise, he 
31

stated in his affidavit that he did not recall discussing his relationship with 

Evette with Mary Kara Bucci, he did not recall an occasion on which Evette 

made repeated and harassing phone calls to his office while he was with 

Mary Kara Bucci and he did not remember meeting Ana Maria Gonzalez 

before 2008. None of these uncertainties contradict the testimony given by 

Mary Kara Bucci and they have the effect, overall, of confirming the truth of 

much of her testimony.

Moreover, the complainant expressly admitted to lying extensively 

about his private life while he was on the stand during trial (R.R.10 – 118-

121, R.R.7 – 104). It is patently obvious that Mary Kara Bucci does not 

stand to benefit from providing her testimony, whereas the complainant’s 

rebuttal is self-serving and supports his interest in protecting his personal 

reputation and preventing any increased scrutiny into the events presented at 

trial. The best evidence the State had in this case came from the 

complainant. To connect Ana Maria Gonzalez with his injuries at all, the 

jury had to take the complainant’s word that she gave him funny tasting 

coffee on the morning of his hospitalization and continued to give it to him 

even after he complained about its taste. The complainant demonstrably lied, 

as he admitted on the stand, to everyone involved in the case, from his livein girlfriend to his supervisors and colleagues at work to the investigators 
32

working the case. Evidence from a new witness conclusively demonstrating 

the depth and reach of his lies is exculpatory admissible evidence. 

There is no reasonable view of the case which supports the trial 

court’s determination that appellant is not entitled to a new trial despite the 

newly discovered evidence provided by Mary Kara Bucci. The appellant’s 

motion for new trial meets all four of the Keefer factors and plainly 

establishes that she is entitled to a new trial under the Code of Criminal 

Procedure. While the court has some discretion in evaluating evidence based 

on credibility, if an appellant can meet the four prongs of the test, the judge 

shall order a new trial. This case should be reversed and remanded for a new 

trial. 

APPELLANT’S SECOND POINT OF ERROR

The evidence presented at trial was insufficient to sustain 

a conviction for aggravated assault because the State was 

unable to connect Ana Maria Gonzalez-Angulo with the 

injuries sustained by the complainant.

Standard of Review

On a challenge to the legal sufficiency of the evidence, the court must 

determine whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 
33

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Evidence is 

insufficient to support a conviction if, considering all the record evidence in 

the light most favorable to the verdict, no rational factfinder could have 

found that each essential element of the charged offense was proven beyond 

a reasonable doubt. Id. Due process requires the State to prove every 

element of the crime charged. Cada v. State, 334 S.W.3d 776, 772-3 (Tex. 

Crim. App. 2011). The “elements of the offense” are the elements the State 

is required to plead and prove, measured by the specific elements that the 

State has alleged in the indictment. Id. 

Arguments and Authorities

In the case at bar, the State was required to prove that Ana Maria 

Gonzalez-Angulo unlawfully, intentionally and knowingly caused serious 

bodily injury to a person with whom she had a dating relationship by 

poisoning the complainant with ethylene glycol or by causing the 

complainant to ingest ethylene glycol. The evidence at trial was wholly 

insufficient to establish that the complainant and Ana Maria GonzalezAngulo were in a “dating relationship,” and, in fact, conclusively established 

that they were not. Appellant addresses this issue in Appellant’s Third Point 

of Error, below, and incorporates by reference all arguments and authorities 

in that point of error here. Because the State requested and obtained an 
34

instruction on the lesser-included offense of aggravated assault, however, 

appellant is dedicating this second point of error to the elements of that 

offense.

The State presented legally sufficient evidence that the complainant 

sustained serious bodily injury, as well as legally sufficient evidence that the 

injury was caused by ethylene glycol, in the sense that the succession of 

experts who believed he ingested ethylene glycol based on the differential 

diagnosis they performed meets the minimum standard of more than a 

“modicum” of evidence required under Jackson. Jackson v. Virginia, 443 

U.S. at 314, 318 & n.11, 320, 99 S.Ct. at 2786, 2789 & n.11.; see also, 

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). The State 

failed to prove, however, that Ana Maria Gonzalez poisoned the 

complainant or caused him to ingest ethylene glycol.

It is undisputed that the State lacked any direct evidence linking Ana 

Maria Gonzalez to the complainant’s injuries and, in fact, any direct 

evidence suggesting he was poisoned at all. The State’s case rested entirely 

on circumstantial evidence and never excluded the possibility of ingestion 

by accident or out of a desire for self-harm. A conviction can be based on 

circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. 

App. 2007). In fact, circumstantial evidence may be as probative as direct 
35

evidence and circumstantial evidence alone can be sufficient to establish a 

defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007). Nevertheless, the cumulative effect of all incriminating facts must be 

sufficient to support the conviction. Id. If the evidence presented at trial 

raises “only a suspicion of guilt, even a strong one, then that evidence is 

insufficient to convict.” Richard Winfrey v. State, 323 S.W.3d 875, 882 

(Tex. Crim. App. 2010).

The State’s evidence rested on the complainant’s after-the-fact 

insistence that the coffee Ana Maria Gonzalez gave him on the morning of 

his hospitalization must have contained ethylene glycol (R.R.10 60-62, 10 –

65, 67, R.R.9 – 258-259). At the time of his injury, however, the 

complainant told investigators and physicians that Ana Maria Gonzalez 

drank the same coffee from the same cup he did throughout the day (R.R.10 

– 65-67). Furthermore, neither the complainant nor anyone else ever saw 

Ana Maria Gonzalez make any coffee or sweeten any coffee (R.R.9 – 251-

252). The only cup he could logically deduce she made for him, the one at 

her own home, was the one he did not drink (R.R.9 – 251). He testified he 

had a couple of sips of the coffee (R.R.9 – 251). No ethylene glycol was 

found in her possession or in any coffee mugs or glasses they drank out of 

that day. The evidence conclusively showed every physician at M.D. 
36

Anderson had as much access to ethylene glycol as she did. At most, the 

complainant’s speculation about the coffee amounts to a suspicion or guess 

regarding Ana Maria Gonzalez’ opportunity to poison him with ethylene 

glycol, based almost entirely on the best guesses of his treating physicians 

about the most likely window of ingestion. The evidence at trial showed that 

the window of possible ingestion realistically extended as far back as the 

previous Friday night, although some experts maintained that the most likely 

time would have been during the day on Sunday, January 27.

Motive and opportunity may be circumstances indicative of guilt. See 

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Evidence of 

motive or opportunity may help link a defendant to wrongful conduct or it 

may be supportive of other evidence of such conduct. Hacker v. State, 389 

S.W.3d 860 870-871 (Tex. Crim. App. 2013). But without evidence that 

wrongful conduct occurred, there is nothing for motive and opportunity 

evidence to link the defendant to. Id. The complainant’s conclusion that Ana 

Maria Gonzalez poisoned him based purely on her opportunity to do so does 

not rise to the level of sufficient evidence. The complainant and Ana Maria 

Gonzalez were not even alone at M.D. Anderson during the day on Sunday 

when the complainant and the State suggest he was poisoned. Plenty of 

evidence shows that the complainant spoke to other co-workers and 
37

colleagues and that the complainant and Ana Maria Gonzalez wandered in 

and out of other people’s offices throughout the day (R.R.9 – 267, 

Testimony of Wendi Stone, Bonnie Glisson, Frank Fosella).

With regard to motive, the State attempted to demonstrate a motive 

for Ana Maria Gonzalez to harm the complainant. Most of the circumstances 

developed at trial contradicted this theory, and, as shown in the Appellant’s 

Second Point of Error, above, the “fatal attraction” motif was a fabrication 

of the State that was contradicted by other witnesses who showed him to be 

a serial womanizer who preyed upon female doctors with whom he came 

into contact. Yet those witnesses were prohibited from testifying or 

unavailable at trial. The motive assigned by the State made no logical sense 

when considered in light of the evidence developed at trial.

For example, the State suggested that Ana Maria Gonzalez was so 

jealous of Evette Toney that she decided to harm the complainant. This has 

no logical force and is hard to square with a lovelorn woman set on winning 

the complainant. Such a suggestion might have made sense if Evette Toney 

had been the one injured, but given that the complainant and Ana Maria 

Gonzalez were still talking regularly on the phone, working together on a 

daily basis, and occasionally engaging in casual sex, it does not follow that 

she would harm him out of jealously over Evette Toney. Furthermore, 
38

witnesses throughout trial, even witnesses called by the State, consistently 

acknowledged Ana Maria Gonzalez’ dedication to her patients and her work 

and her excellence as a physician. The evidence showed she had an 

important business meeting on the night of the complainant’s 

hospitalization, which she attended with the complainant (R.R.5. 180-185). 

The evidence also showed that Ana Maria Gonzalez was at least familiar in a 

rudimentary way with the effects of ethylene glycol poisoning (R.R.5 –

294). It is not a reasonable inference from the evidence to suppose she 

would poison her research partner with an intoxicating toxin and then take 

him to dinner with two senior members of her faculty, both accomplished 

physicians, for a meeting she hoped would result in a new career 

opportunity. The evidence showed Ana Maria Gonzalez told several doctors 

she was concerned about the complainant, that she was worried and upset 

when he refused to go to the emergency room, and that she followed him 

and accompanied him to the emergency room herself.

The State also attempted to connect the mysterious events and strange 

behaviors from the previous months with the injury sustained by the 

complainant. For example, the State suggested that Ana Maria Gonzalez 

staged an attack on herself and sent an anonymous letter to Evette Toney, 

pretending to threaten herself and the complainant in an attempt to discredit 
39

or frame Evette Toney. Even if the jury believed the State’s interpretation of 

this evidence and thought Ana Maria Gonzalez faked an attack on herself 

out of jealousy, that fact does not support a reasonable deduction that she 

later tried to poison the complainant.

In some instances, the “staging” of a crime can be a circumstance 

supporting a logical inference of guilt. In Temple v. State, 290 S.W.3d 341 

(Tex. Crim. App. 2013), the evidence showed that the murder scene was 

“staged” after the murder to make it look like a burglary. Likewise, in 

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008), there was 

evidence supporting the staged nature of a crime, supporting an inference of 

guilt in a circumstantial case. In both those cases, however, the staging relied 

on by the courts concerned the charged offense itself. In the instant case, 

Ana Maria Gonzalez and the complainant were open and exposed 

throughout the day of his hospitalization, interacting with other physicians, 

discussing his health and the status of his symptoms as he began to seem ill, 

and participating in a group dinner together. Considering the evidence in the 

light most favorable to the verdict, as the standard of review requires, and 

assuming the jury believed Ana Maria Gonzalez staged an attack on herself 

more than two months before, such evidence does not support a logical 
40

inference that she harmed the complainant with ethylene glycol on the date 

of his hospitalization.

This case is similar to Stobaugh v. State, 421 S.W.3d 787 (Tex. 

App.—Forth Worth 2014, no pet.). In that case, the court of appeals reversed 

and acquitted the defendant of murder after he was convicted entirely on 

circumstantial evidence. The court pointed out that lies and inconsistent 

statements in the absence of proof of wrongful conduct did not support an 

inference of mens rea for murder. Stobaugh v. State, 421 S.W.3d at 787. 

The defendant in that case behaved in an occasionally bizarre manner 

following the disappearance of his wife, but the court concluded that “the 

fact that he lied about calling Kathy or lied about hiring a private 

investigator with her money does not support a reasonable deduction that he 

possessed intent to kill her.” Id. The court continued, “just theorizing or 

guessing by the jury as to the meaning of his suspicious conduct is not a 

logical deduction from the conduct.” Id.

Likewise, in the instant case, the State encouraged the jury to theorize 

or guess as to the meaning of some conduct it labeled as suspicious both 

before and after the complainant’s injury. Much of the State’s case was 

based on doctors recounting things Ana Maria Gonzalez said in the days and 

months following the complainant’s injury that they theorized might be 
41

suspicious. None of those things rose to the level of establishing any actual 

connection between Ana Maria Gonzalez and the apparent ingestion of 

ethylene glycol, and none were inconsistent with a person concerned about a 

close friend or colleague, especially after she found herself the target of an 

investigation based purely on circumstances and her opportunity to commit a 

crime.

One of the most bizarre aspects of the State’s case was the 

complainant’s insistence, well after the fact, and at trial, that he noticed a 

sickeningly sweet taste in the coffee Ana Maria Gonzalez shared with him. 

He testified he found it almost unbearably disgusting, yet continued to drink 

it throughout the day out of politeness (R.R.9 – 258-259). Throughout much 

of the day of his injury the complainant was less than a few yards away from 

a coffee machine, where he could have presumably made all the coffee he 

wanted. It strains credibility to believe that he would drink something he 

found sickening, disgusting and perhaps even toxic because he did not want 

to hurt the feelings of someone he had been using for casual sex at the office 

over the previous two years. This testimony was matched by the equally 

bizarre testimony of Evette Toney that the complainant told her within a day 

or two that he suspected Ana Maria Gonzalez of poisoning him with the 

coffee but wanted her to “keep this just between ourselves,” and “not poke 
42

the dragon,” leading her to lie to law enforcement and suggest “maybe it was 

some psycho waiter.” (R.R.10 – 61-62, R.R.11 – 73-77, 205). In this regard, 

the arguably strange conduct of Ana Maria Gonzalez following the 

hospitalization of the complainant, relied upon by the State as 

“circumstantial evidence” of her guilt, was exceeded by the even stranger 

behavior of the complainant and his girlfriend, starting with her video 

recording of the complainant at the hospital and culminating in the secret 

taping of phone conversations they made over hours and hours of solicited 

conversations with Ana Maria Gonzalez (R.R.10 – 107-109).

It was not enough to show that the complainant ingested ethylene 

glycol and Ana Maria Gonzalez had the opportunity to give it to him, even 

when coupled with supposition, suspicions and curious conduct in the days 

following the complainant’s injury. These circumstances do not rise to the 

level of sufficient evidence to establish the elements of aggravated assault, 

even in an entirely circumstantial case. The State’s evidence was legally 

insufficient to support the conviction, and the case should be reversed and 

the appellant acquitted.
43

APPELLANT’S THIRD POINT OF ERROR

The State failed to establish Ana Maria Gonzalez-Angulo 

was “in a dating relationship” under the terms of the 

Family Code and the Penal Code and the evidence was 

insufficient to support the offense as pled in the 

indictment.

Ana Maria Gonzalez-Angulo was charged with aggravated assault on 

a “person with whom she had a dating relationship.” Under the Penal Code, 

aggravated assault under section 22.02 is a second degree felony unless 

certain further aggravating circumstances apply, one of which is being in a 

dating relationship as described by the Family Code in section 71.0021(b). 

Under that provision, a “dating relationship” means a relationship between 

individuals who have or have had a continuing relationship of a romantic or 

intimate nature. Tex. Fam. Code Ann. sec 71.0021(b) (West 2014). The 

existence of such a relationship shall be determined based on consideration 

of: (1) the length of the relationship; (2) the nature of the relationship; and 

(3) the frequency and type of interaction between the person involved in the 

relationship. Id. When an aggravated assault is between two people with a 

“dating relationship,” the offense is a first-degree felony with a significantly 

greater punishment range. A casual acquaintanceship or ordinary 

fraternization in a business or social context does not constitute a “dating 

relationship”. Tex. Fam. Code Ann. sec 71.0021(c) (West 2014).
44

Courts of appeals in Texas have struggled with the broad definition of 

“dating relationship.” As one justice explained, “I believe the legislature did 

not intend to include within the purview of section 22.01 all persons who 

had ever dated in their lifetime.” Sanchez v. State, ---S.W.3d--- (Tex. 

App.—Eastland, 2015) (Wright, J., dissenting and concurring). In one recent 

case, the Court of Criminal Appeals agreed with the State that the defendant 

and the complainant were in a “dating relationship” when they spent the 

night at each other’s residences and had dated about a month. Villareal v. 

State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009).

The evidence presented at trial established conclusively that the 

complainant did not consider himself to be in a dating relationship with Ana 

Maria Gonzalez (R.R.10 – 44, 129). He testified explicitly that he did not 

consider the relationship a romantic one, that he did not love her (R.R.10 –

48), and that it was not a dating relationship (R.R.10 – 44, 129). He further 

testified that the relationship was at least 95% work and only 5% casual sex 

(R.R.11 – 85-87). He explained that he withheld intercourse in the 

relationship specifically because he made a distinction between that kind of 

intimacy and the casual, meaningless sexual act of oral sex (R.R.9 - 167-

168). He said that the incidences of sexual acts were perhaps as infrequent as 

once a month or less and that he was in a committed and loving relationship 
45

with Evette Toney (R.R.9 – 167). Ana Maria Gonzalez was quoted by Evette 

Toney as saying, “it was just sex,” referring to the physical aspect of her 

relationship with the complainant (R.R.11 – 83-86). The complainant and 

Ana Maria Gonzalez never lived together, never told anyone they were 

boyfriend and girlfriend, never went out on a date and did not engage in 

demonstrations of affection in the office. Ana Maria Gonzalez was quoted 

several times in the record as saying she loved the complainant “like a 

brother,” (R.R.9 – 163, 170, R.R.5 – 129, R.R.7 – 175) and told one 

colleague he was “her best friend in the United States.” (R.R.7 – 176).

Even more to the point, the provisions regarding aggravation of 

offenses in the context of a dating relationship are intended to protect 

individuals from domestic violence by punishing them more severely than 

other assaults. To hold Ana Maria Gonzalez accountable for injuries to the 

complainant within a “dating relationship” under the facts of this case 

violates the spirit of the law. Ana Maria Gonzalez told Evette Toney, “he 

used you and he used me.” (R.R.11 – 86). The record shows that she helped 

the complainant in his career and his liaison with her resulted in promotions 

for him at work and an increased visibility for his research. (R.R.9 – 171-

172, R.R.10 – 40-45, R.R.5 – 126). It shows that the complainant was senior 

to Ana Maria Gonzalez at M.D. Anderson and came from an influential and 
46

successful family of physicians (R.R.9 – 145 – 149, 156). The complainant 

testified that when he had sexual relations with Ana Maria Gonzalez, those 

acts were confined to her giving him oral sex, but not the other way around 

(R.R.9 – 164-165). The complainant’s supervisor called him into her office 

because his behavior around Ana Maria Gonzalez was, as she put it, 

“unseemly.” (R.R.7 – 104). The complainant did not wish to risk his own 

medical license and career by writing a fake doctor’s note for his commonlaw wife, Evette Toney, so he induced Ana Maria Gonzalez to write one for 

him (R.R.9 220 – 224). At trial, the complainant reluctantly conceded to 

“partial responsibility” for his common-law wife’s loss of employment after 

she turned in the fake note he got from Ana Maria Gonzalez (R.R.9 – 223). 

One of the State’s witnesses, Dr. Jennifer Litton, testified that she felt the 

relationship was unhealthy for Ana Maria Gonzalez and that she noticed 

throughout the fall that Ana Maria Gonzalez was losing weight, was more 

tearful than usual, frail, agitated and sad (R.R.12 – 56-57). These 

observations do not describe a relationship where Ana Maria Gonzalez was 

domineering or controlling of the complainant or where she was abusive or 

inclined toward domestic violence. To the contrary, the record shows the 

complainant remorselessly using a woman in a weaker position, a younger 

faculty member without the contacts and background he had in the Houston 
47

area, to advance his own career while using her for his own sexual 

gratification and lying to his common-law wife (and anyone else who 

inquired about it).

In a transparent attempt to increase the punishment range and overcharge Ana Maria Gonzalez, the State attempted to characterize what 

amounted to sexual harassment by a senior M.D. Anderson staff member as 

a “dating relationship.” The State failed to prove that the complainant and

Ana Maria Gonzalez were in a dating relationship within the meaning of the 

Penal Code and the Family Code. Because the State requested and obtained 

an instruction on the lesser included offense of aggravated assault, the next 

step would be for this Court to consider the sufficiency of the evidence to 

support a conviction for aggravated assault, as argued in Point of Error 

Three. If this Court concludes that the evidence was legally sufficient to 

support the lesser-included offense, the proper remedy would be to reverse 

and reform the judgment to reflect a conviction for the lesser-included 

offense, and then remand for a new punishment hearing. Bowen v. State, 

374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012); see also, Tex. R. App. P. 

43.2(d); Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App. 

2014).
48

APPELLANT’S FOURTH POINT OF ERROR

The trial court erred by allowing a State’s witness to 

identify Ana Maria Gonzalez-Angulo’s voice in a 

surreptitiously recorded telephone call based on two prior 

anonymous telephone conversations during which the 

State’s witness never learned the identity of the person 

with whom he was talking.

Applicable Facts

During its case-in-chief, the State introduced the testimony of Mike 

DeSilva, a compliance investigator for GlaxoSmithKline (GSK). (R.R.10 –

184). The witness was presented as an expert of sorts, with about twenty-two 

years of law enforcement experience (R.R.10 – 184). DeSilva testified he 

was investigating complaints about the conduct of Evette Toney, a 

GlaxoSmithKline employee, through conversations with an anonymous 

informant at M.D. Anderson. The investigation began in early February 

because of an anonymous letter (R.R.10 – 190-193). In early March, an 

unknown individual called the compliance hotline to inquire about the status 

of the complaint (R.R.10 - 192). DeSilva testified that it was not uncommon 

for GSK to receive complaints from anonymous callers because people 

reporting conflicts of interest often do not want friends or colleagues to 

know they are reporting the conflict (R.R.10 – 240). Mike DeSilva told the 

hotline personnel to ask the individual to call him on his cell phone and on 
49

April 30, 2013, he received a call from an individual entirely unknown to 

him. The call was short because it was evening and he was in the car with 

his son (R.R.10 – 195). The next day, however, on May 1, 2013, DeSilva 

had a conversation with the unknown person for approximately thirty 

minutes (R.R.10 – 195). He described the caller as female with a Hispanic 

accent (R.R.10 – 196). 

Based on this thirty minute conversation with a person entirely 

unknown to him, described only as “female with a Hispanic accent,” 

DeSilva was permitted to testify over defense objection that he recognized 

the voice as being the same one as in State’s Exhibit 127, one of the secretly 

recorded phone calls the complainant made of Ana Maria Gonzalez. This 

testimony amounted to an in-court identification of Ana Maria Gonzalez as 

the anonymous person behind the complaints to GlaxoSmithKline.

Standard of Review

An in-court identification is inadmissible if tainted by an unduly 

suggestive pretrial identification. Loserth v. State, 963 S.W.2d 770, 772 

(Tex. Crim. App. 1998). A pretrial identification procedure may be so 

suggestive and conducive to mistaken identification that subsequent use of 

that identification at trial would deny the accused due process. Barley v. 

State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). Appellate courts 
50

review de novo the question of whether a pretrial identification procedure 

amounted to a denial of due process. Gamboa v. State, 296 S.W.3d 574, 581 

(Tex. Crim. App. 2009). First, the court determines whether the pretrial 

identification procedure was impermissibly suggestive. Id. Second, if the 

court concludes the procedure was impermissibly suggestive, the court 

determines if the impermissibly suggestive nature of the pretrial 

identification gave rise to a substantial likelihood of irreparable 

misidentification. Id. For an identification based on an impermissibly 

suggestive procedure to be admissible, the totality of the circumstances must 

show no substantial likelihood of misidentification. Ibarra v. State, 11 

S.W.3d 189, 195 (Tex. Crim. App. 1999).

Arguments and Authorities

To set the stage for DeSilva’s in-court identification of Ana Maria 

Gonzalez, the prosecutor asked, “have you had occasion to listen to known 

recordings of the defendant speaking?” (R.R.10 – 196). The court asked the 

prosecutor, “Voice identifications are admissible because why?” (R.R.10 –

197). The prosecutor was unable to come up with a basis for admission. 

Defense counsel objected on the basis of an impermissibly suggestive outof-court identification procedure, because DeSilva listened to tapes of Ana 

Maria Gonzalez, and only Ana Maria Gonzalez, after she had already been 
51

arrested, identified as the key suspect by Detective Sosa, and charged with 

aggravated assault (R.R.10 – 196).

Defense counsel rightly distinguished the ordinary authentication and 

identification procedure for voices prior to the admission of recorded calls. 

Rule 901(b) of the Texas Rules of Evidence provides for voice identification 

by a witness prior to the admission of an audio recording. Tex. R. Evid. 

901(b). In those circumstances, the witness can identify a voice “by opinion 

based upon hearing the voice at any time under circumstances connecting it 

with the alleged speaker.” Tex. R. Evid. 901(b)(5). In the instant case, the 

State had no recordings of DeSilva’s phone conversation with the 

anonymous caller and did not seek to admit any such evidence. Instead, the 

State hoped to use evidence of Ana Maria Gonzalez’ voice, already admitted 

into evidence, as a vehicle for DeSilva to testify to an in-court identification 

in an attempt to establish her as the anonymous caller in the GSK 

complaints. This was, as defense counsel pointed out, the opposite of 

authenticating an audio recording for admission as contemplated by Rule 

901(b). (R.R.10 – 198). The court agreed that the State was not seeking to 

authenticate an audio recording under Rule 901, stating, “Right, but that’s 

not what this is.” (R.R.10 – 198). It was an identification procedure similar 

to a photo lineup based on voice recognition. Voice exemplars are 
52

sometimes used in place of photos to identify defendants in out-of-court 

procedures, but they require multiple suspects reading the words of an 

assailant so the witness has the opportunity to pick out the correct voice. See, 

e.g., United States v. Wade, 388 U.S. 218, 221-23, 87 S.Ct. 1926, 1929-30, 

18 L.Ed.2d 1149 (1967).

It is impermissibly suggestive to show a witness a single photograph, 

inform the witness that the suspect in the photograph has already been 

arrested for the crime, and ask the witness to identify the suspect. Stovall v. 

Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Madden 

v. State, 799 S.W.3d 683, 694-95 (Tex. Crim. App. 1990). This is true even 

when the suspect has not yet been identified or arrested as the likely 

perpetrator. Id. Likewise, in the instant case, it was impermissibly 

suggestive to ask DeSilva to identify Ana Maria Gonzalez’ voice as the 

anonymous caller by asking him to listen to a recording of her voice without 

providing exemplars of other female voices with Hispanic accents for 

comparison purposes. In addition, by the time DeSilva heard Ana Maria 

Gonzalez’ voice on the recording with the complainant, she had already 

been arrested and charged with the underlying offense. Moreover, DeSilva 

knew Ana Maria Gonzalez had been arrested and charged with a crime 
53

because Evette Toney notified him during an interview in July 2013 (R.R.10 

– 237). 

With visual identification, on-the-scene confrontations, also referred 

to as show-up identifications, have some degree of suggestiveness but may 

be acceptable, particularly when the viewing occurs immediately after the 

commission of the offense while the witness’ memory is still fresh and 

accurate. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.] 

1981). Thus, law enforcement may occasionally ask a single suspect or a 

procession of suspects to parade in front of a witness to a crime, one at a 

time, if circumstances support a finding that the procedure is not suggestive. 

Id. In the case at bar, however, DeSilva testified he spoke to the anonymous 

caller at the end of April and the beginning of May, 2013, for a total of about 

forty minutes over two calls, and then heard a recording of Ana Maria 

Gonzalez’ voice for the first time in September 2014 (R.R.10 – 243). Nearly 

eighteen months had elapsed between his brief exposure to the voice of an 

anonymous caller over his cell phone and his opportunity to hear the 

identified voice of Ana Maria Gonzalez prior to trial. DeSilva was informed 

that the voices on the recording belonged to the complainant and Ana Maria 

Gonzalez (R.R.10 – 244). He affirmed on cross-examination that he already 

knew Ana Maria Gonzalez had been charged with a crime and that he had 
54

discussed the case with Detective Sosa (R.R.10 – 244). Although he 

admitted he was not an expert in voice identification and had never been 

trained in recognizing voices, and he admitted discussing the case at length 

with Detective Sosa before listening to the recording of Ana Maria 

Gonzalez’ voice, he insisted that in his opinion, the anonymous caller from 

the previous year was Ana Maria Gonzalez. He said, “the pitch sounded the 

same, the cadence, the accent, it sounded like the same person I spoke with 

on the phone on those two occasions, yes.” (R.R.10 – 247). 

The Due Process Clause of the Fourteenth Amendment of the United 

States Constitution protects an accused from the admission of a pretrial 

identification into evidence if it is “so suggestive and conducive to mistaken 

identification that subsequent use of that identification at trial would deny 

the accused due process of law.” Barley v. State, 906 S.W.2d 27, 32-33 

(Tex. Crim. App. 1995). The accused has to show (1) the pretrial 

identification procedure was impermissibly suggestive; and (2) it created a 

substantial likelihood of irreparable misidentification.” Sierra v. State, 266 

S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). The second 

prong of the test is based on an evaluation of the following factors: (1) the 

witness’ opportunity to view the perpetrator at the time of the offense; (2) 

the witness’ degree of attention during the offense; (3) the accuracy of the 
55

witness’ prior description of the perpetrator; (4) the witness’ level of 

certainty regarding identification at the time of confrontation; (5) the lapse 

of time between the offense and the subsequent confrontation. Neil v. 

Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). In 

the instant case, these factors should be evaluated based on what DeSilva 

heard rather than saw, and instead of an offense, his comparison would be to 

the anonymous call reporting the conflict of interest to GSK.

DeSilva had two short, long-distance telephone calls on a cell phone 

with an anonymous informant. He was following up on a routine lead as part 

of his job as a compliance investigator. Unlike many witness identification 

situations, these circumstances did not involve a compelling or startling 

moment or a traumatic event for DeSilva. In terms of his accuracy in 

describing the anonymous caller, DeSilva could only ever say it was a 

“female with a Hispanic accent.” DeSilva insisted at trial that the voices 

were the same, but also admitted to a long career in law enforcement and a 

lengthy interview with Detective Sosa during which Sosa shared his feelings 

about the case and about Ana Maria Gonzalez. Finally, with respect to the 

last factor, a substantial amount of time elapsed between the evenings when 

he heard the anonymous caller’s voice and the day he was asked to listen to 

a recording of Ana Maria Gonzalez.
56

An analysis of the so-called Biggers factors leads inevitably to a 

finding that there was a substantial likelihood of irreparable 

misdentification. When a witness identifies a defendant based on an 

impermissibly suggestive pretrial procedure, the case will be reversed when 

there is a substantial doubt raised about the reliability of the identification. 

Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988) (out-of-court 

identification was inadmissible and the in-court identification could not 

stand without it). The trial judge asked the lawyers at the bench “why can’t 

you just cross-examine on this?” The answer is that any time a witness 

becomes certain about his or her identification of a suspect because of an 

impermissibly suggestive pretrial procedure, the State has created a certainty 

in the witness’ mind out of whole cloth. See id.

In the instant case, the State was never able to establish a connection 

between the injuries sustained by the complainant and Ana Maria Gonzalez. 

DeSilva’s testimony, however, provided one attempt at a link that knitted the 

State’s circumstantial case together in terms of identification. DeSilva’s 

testimony sought to establish that the anonymous caller was the same person 

who set up the Conflict Report email account. In addition, his testimony 

strongly suggested that the anonymous caller was the author of the 

anonymous letters that precipitated GSK’s investigation into Evette Toney’s 
57

behavior. The prosecutor used this evidence to try to establish a link between 

the anonymous letter the complainant testified he received during 

Thanksgiving 2012. The complainant testified the anonymous letter 

contained specific misspellings of the names of the people involved. DeSilva 

identified the same misspellings in the letter GSK received. Significantly, 

the jury never saw the letter the complainant claimed he received. Likewise, 

the jury did not have an opportunity to hear a recording of DeSilva’s 

conversation with the unknown caller and compare the voice to the voice of 

Ana Maria Gonzalez themselves.

The State’s case hinged on a theory of “fatal attraction,” and part of 

that theory required proving that Ana Maria Gonzalez staged an attack on 

herself and sent anonymous letters and emails to the complainant and GSK 

in an effort to harass or entrap or otherwise harm the complainant and Evette 

Toney. The State’s proof fell short of connecting Ana Maria Gonzalez with 

these events and DeSilva’s identification testimony, tainted by Detective 

Sosa’s view of the case, was an attempt to shore up this connection. His 

testimony was a violation of Ana Maria Gonzalez’ rights to due process 

under the United States Constitution and under the similar due process 

provision of the Texas Constitution, and the trial court erred in admitting it.
58

Even if this Court analyzes the admission of DeSilva’s testimony 

under the rules of evidence rather than considering it under the law 

applicable to pretrial and in-court identifications, the trial court still erred in 

admitting the evidence. Defense counsel also objected to the admission of 

the testimony under Rule 403, arguing that its probative value was 

outweighed by the danger of unfair prejudice. A trial court should exclude 

otherwise admissible evidence under Rule 403 if the probative value of such 

evidence is substantially outweighed by the danger of unfair prejudice. Tex. 

R. Evid. 403. When an appellant challenges a trial court’s ruling under the 

rules of evidence, the appellate court reviews the decision under an abuse of 

discretion standard. See Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. 

App. 2009). To evaluate the admission of evidence under Rule 403, the court 

balances a variety of factors including: (1) whether the evidence had 

significant probative value; (2) whether the State had a compelling need for 

the evidence; (3) whether the evidence tended to suggest the jury make a 

decision on an improper basis; (4) any tendency of the evidence to confuse 

or distract the jury from the main issues; (5) the possibility that the jury 

might give undue weight to the evidence; and (6) the likelihood that 

presentation of the evidence would consume an inordinate amount of time or 
59

repeat evidence already admitted. Giglioblanco v. State, 201 S.W.3d 637, 

641-42 (Tex. Crim. App. 2006).

In the instant case, the investigator’s testimony about an anonymous 

caller to GSK reporting a real and valid conflict of interest did not have 

significant probative value with respect to the key issues at bar. The conflict 

of interest with GSK and the loss of Evette Toney’s job as a result of her 

own dishonesty were side issues in the case used by the prosecutor to 

suggest animosity toward Evette Toney and establish a motive for Ana 

Maria Gonzalez to hurt either her or the complainant. Motive is not an 

element of aggravated assault. For the same reason, the second factor argues 

against the admission of the evidence. The State only had a compelling need 

for this evidence because its direct evidence, and even its circumstantial 

evidence on the elements of the offense, was weak and inconsistent. The 

State used DeSilva’s testimony to hint at its theory of the case, carried 

throughout the trial and into closing argument in place of actual evidence: 

that Ana Maria Gonzalez had a “fatal attraction” and attempted to frame 

Evette Toney for something she did not do. The third factor also militates 

against the admission of the evidence, because the purpose of DeSilva’s 

testimony was to influence the jury to make a decision based on vague 

suppositions and innuendo about Ana Maria Gonzalez’ character and 
60

perhaps even her emotional stability, rather than on the evidence presented 

on each of the elements of the offense. The fourth factor requires the court to 

consider whether the evidence has a tendency to distract the jury from the 

issues or confuse the issues. As stated above, the State’s intent was to 

distract the jury from the paucity of evidence connecting Ana Maria 

Gonzalez to the actual offense at issue, and instead focus them on a series of 

confusing and unrelated incidents, many of which took place long after the 

complainant was injured. 

Finally, while the evidence did not take a substantial amount of time, 

there was nevertheless a legitimate concern that the jury would place undue 

weight on it. The State spent a lot of time in its case-in-chief trying to 

suggest that Ana Maria Gonzalez was lying about phone calls she received, 

faking an attack and authoring anonymous letters. Despite the repeated 

emphasis on these allegations, little or no evidence was ever produced 

showing that she did, in fact, lie about any phone calls, fake an attack or 

author any anonymous letters. The State relied on DeSilva’s testimony to 

establish a crucial link in its evidence that otherwise simply was not there.

The admission of this false identification testimony was distracting 

and confusing for another reason: even if the State had sufficient evidence to 

prove Ana Maria Gonzalez authored anonymous letters or faked an attack on 
61

herself, none of these events would tend to prove or disprove any of the 

elements of the offense. The effect of this evidence and other evidence like it 

was to focus the jury on the theory the State was trying to put forward about 

the relationship between the complainant and Ana Maria Gonzalez rather 

than the elements of the charged offense.

The trial court erred in admitting the in-court identification made by 

DeSilva based on voice recognition and the admission denied Ana Maria 

Gonzalez her rights to due process and harmed her under the harmless error 

rule of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2. 

The case should be reversed and remanded for a new trial.
62

PRAYER

Appellant respectfully prays this Honorable Court to reverse the 

conviction and acquit the appellant on the basis of insufficient evidence.

Alternatively, appellant prays this Honorable Court to reverse and remand 

for a new trial.

Respectfully submitted,

/s/ Barbara Drumheller

Barbara A. Drumheller

8501 Katy Fwy, Ste 201

Houston, Texas 77024

713-504-4492

Texas Bar No. 00793643
63

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been 

served on the Harris County District Attorney’s Office as required by the 

Texas Rules of Appellate Procedure.

/s/ Barbara Drumheller

Barbara A. Drumheller

8501 Katy Fwy, Ste 201

Houston, Texas 77024

713-504-4492

Texas Bar No. 00793643
64

CERTIFICATE OF COMPLIANCE

This is to certify that the foregoing computer-generated brief has no 

more than 12,726 words in compliance with Rule 9 of the Texas Rules of 

Appellate Procedure.

/s/ Barbara Drumheller

Barbara A. Drumheller

8501 Katy Fwy, Ste 201

Houston, Texas 77024

713-504-4492

Texas Bar No. 00793643