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ACCEPTED
01-18-00018-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/2/2018 1:39 PM
CHRISTOPHER PRINE
CLERK

NO. 01-18-00018-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
AT HOUSTON, TEXAS 5/2/2018 1:39:38 PM

CHRISTOPHER A. PRINE

Clerk

GUSTAVO AYBAR
Appellant
v.

THE STATE OF TEXAS
Appellee

On Appeal from Cause Number 1493128 From the 262nd Judicial District Court of Harris County, Texas Hon. Michael Wilkinson, Judge Presiding Hon. Leslie Yates, Judge Presiding (Voir Dire)

APPELLANT’S BRIEF

Alexander Bunin
Chief Public Defender
Harris County, Texas

Nicholas Mensch
Assistant Public Defender
Harris County, Texas
State Bar of Texas No. 24070262
1201 Franklin, 13th floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
nicholas.mensch@pdo.hctx.net

ORAL ARGUMENT NOT REQUESTED Attorney for Appellant

IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

Gustavo Aybar

TDCJ# 02174861

Neal Unit

9055 Spur 591

Amarillo, Texas 79107-9696

TRIAL COUNSEL FOR APPELLANT:

Kurt Wentz

State Bar of Texas No. 21179300

5629 FM 1960

Houston, Texas 77069

COUNSEL ON APPEAL FOR APPELLANT:

Nicholas Mensch

Assistant Public Defender

Harris County, Texas

State Bar of Texas No. 24070262

1201 Franklin, 13th floor

Houston, Texas 77002

TRIAL COUNSEL FOR THE STATE:

Chris McKinney

State Bar of Texas No. 24075729

Cara Burton

State Bar of Texas No. 24068399

Assistant District Attorneys

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

APPELLATE COUNSEL FOR THE STATE:

Dan McCrory

State Bar of Texas No. 13489950

Assistant District Attorney

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

PRESIDING JUDGE:

Hon. Michael Wilkinson

(Visiting Judge)

Hon. Leslie Yates

(Visiting Judge)

262nd District Court

Harris County, Texas

201 Caroline, 12th Floor

Houston, Texas 77002

iii

TABLE OF CONTENTS

Identity of Parties and Counsel ii

Table of Contents iv

Index of Authorities vi

Statement of the Case 1

Statement Regarding Oral Argument 1

Issues Presented 1

1. Whether the evidence was legally sufficient to find beyond a reasonable doubt that Appellant intentionally or knowingly endangered his car when the evidence adduced at trial shows that Appellant’s conduct was, at best, reckless?

2. Whether Appellant suffered egregious harm as a result of the jury charge defining intentionally” by including nature-of-conduct instruction and the jury charge defining “knowingly” by including nature-of-conduct and circumstances of the conduct instructions and by failing to limit the language regarding the applicable culpable mental states to the appropriate conduct element in the application paragraph?

3. Whether the trial court erred in assessing certain court costs totaling $279.00 as the Appellant was convicted of multiple offenses arising from a single criminal transaction and Appellant’s conviction for endangering a child is the lowest category of offenses that Appellant was convicted of?

4. Whether the fee of $15 for summoning witnesses/mileage pursuant to TEX. CODE OF CRIM. PROC. ART. 102.011(a)(3) and (b) is unconstitutional to the extent it allocates funds to the general fund of the city, county, and State because those funds allow spending for purposes other than legitimate criminal justice purposes in violation of the separation of powers provision of the Texas Constitution?

Statement of Facts 2

Summary of the Argument 16

Argument 18

1. Whether the evidence was legally sufficient to find beyond a reasonable

doubt that Appellant intentionally or knowingly endangered his car when

the evidence adduced at trial shows that Appellant’s conduct was, at best,

reckless? 18

A. Applicable and Standard of Review 18

B. Analysis 20

2. Whether Appellant suffered egregious harm as a result of the jury charge defining intentionally” by including nature-of-conduct instruction and the jury charge defining “knowingly” by including nature-of-conduct and
circumstances of the conduct instructions and by failing to limit the

language regarding the applicable culpable mental states to the appropriate

conduct element in the application paragraph? 28

A. Applicable 28

B. Standard of Review 29

C. Analysis 30

1. The instruction defining “intentionally” was erroneous as it included the definition of the nature of his conduct and “knowingly” was erroneous as it included the

definition of the nature of his conduct and the circumstances of his conduct when

the charge of endangering of a child is a “result-oriented” offense 30

2. Appellant suffered egregious harm 32

A. Applicable Law 35

B. Preservation of Error 36

C. Analysis 36

criminal justice purposes in violation of the separation of powers provision

of the Texas Constitution? 38

A. Applicable Law 38

B. Preservation of Error 41

C. Analysis 41

Prayer 44

Certificate of Service 45

Certificate of Compliance 45

INDEX OF AUTHORITIES

Federal Cases:

Jackson v. Virgina,
443 U.S. 307 (1979) 18

State Cases:

Allen v. State,

No. 01-16-00768-CR, 2017 Tex. App. LEXIS 11015 (Tex. App.—Houston [1st

Dist.] November 28, 2017, no pet. h.) (designated for publication) 17, 42, 43

Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) 30, 32

Alvarado v. State,
704 S.W.2d 36 (Tex. Crim. App. 1985) 21, 22

Assavedo v. State,

No. 05-15-00480-CR & No. 05-15-00481-CR, 2016 Tex. App. LEXIS 8201 (Tex. App.—Dallas July 29, 2016, no pet.) (mem. op., not designated for publication) .. 21

Bluitt v. State,
137 S.W.3d 226 (Tex. Crim. App. 2004) 30

Cardenas v. State,
423 S.W.3d 396 (Tex. Crim. App. 2014) 36, 41

Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) 19

Cook v. State,
884 S.W.2d 485 (Tex. Crim. App. 1994) 29, 31

Curry v. State,
30 S.W.3d 394 (Tex. Crim. App. 2000) 19

Ellison v. State,
86 S.W.3d 226 (Tex. Crim. App. 2002) 30

vii

Ervin v. State,
331 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) 18, 19

Ex parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013) 38

Fuller v. State,
73 S.W.3d 250 (Tex. Crim. App. 2002) 19

Gear v. State,
340 S.W.3d 743 (Tex. Crim. App. 2011) 18

Golihar v. State,
46 S.W.3d 243 (Tex. Crim. App. 2001) 19

Hernandez v. State,

No. 01-16-00755-CR, 2017 Tex. App. LEXIS 7612 (Tex. App.—Houston [1st

Dist.] August 10, 2017, no pet. h.) (designated for publication) 38, 39, 42

Hill v. State,
265 S.W.3d 539 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) 21, 31

Hollander v. State,
414 S.W.3d 746 (Tex. Crim. App. 2013) 30

Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) 18

Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014) 36, 41

Johnston v. State,
150 S.W.3d 630 (Tex. App.—Austin 2004, no pet.) 25

Lewis v. State,
529 S.W.2d 550 (Tex. Crim. App. 1975) 27

Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997) 19

viii

Middleton v. State,
125 S.W.3d 450 (Tex. Crim. App. 2003) 29

Millslagle v. State,
81 S.W.3d 895 (Tex. App.—Austin 2002, pet. ref’d) 20, 21, 22, 31

Mitchell v. John Wiesner, Inc.,
923 S.W.2d 262 (Tex. App.—Beaumont 1996, no writ.) 21

Moore v. State,
969 S.W.2d 4 (Tex. Crim. App. 1998) 27

Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) 30

Patrick v. State,
906 S.W.2d 481 (Tex. Crim. App. 1995) 27

Peraza v. State,
467 S.W.3d 508 (Tex. Crim. App. 2015) 39

Price v. State,
457 S.W.3d 437 (Tex. Crim. App. 2015) 29

Reeves v. State,
420 S.W.3d 812 (Tex. Crim. App. 2013) 28

Robinson v. State,
466 S.W.3d 166 (Tex. Crim. App. 2015) 29

Salinas v. State,
523 S.W.3d 103 (Tex. Crim. App. 2017) 39, 40

Schroeder v. State,
123 S.W.3d 398 (Tex. Crim. App. 2003) 21

Shook v. State,
156 Tex. Crim. 515, 244 S.W.2d 220 (Tex. Crim. App. 1951) 21

Walker v. State,
95 S.W.3d 516 (Tex. App.—Fort Worth 2002, pet. ref’d.) 22, 34

Williams v. State,
547 S.W.2d 18 (Tex. Crim. App. 1977) ………………………………………………………………. 28
Williams v. State,
235 S.W.3d 742 (Tex. Crim. App. 2007) …………………………………………………………….. 27

495 S.W.3d 583 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d) (op. on reh’g)

36, 38
Winfrey v. State,
323 S.W.3d 875 (Tex. Crim. App. 2010) …………………………………………………………….. 19
Constitutions
Texas Constitution, Article II, Section 1 ………………………………………………………………… 38
Rules
Texas Rule of Appellate Procedure 43.02(b) …………………………………………………….. 38, 43
Statutes
Texas Code of Criminal Procedure Article 36.14 ……………………………………………………. 28
Texas Code of Criminal Procedure Article 102.011(a)(3) ………………………………….. 17, 39
Texas Code of Criminal Procedure Article 102.011(b)………………………………………. 17, 39
Texas Code of Criminal Procedure Article 102.073 ……………………………………………….. 35
Texas Code of Criminal Procedure Article 102.073(b)……………………………………………. 38
Texas Penal Code Section 6.03(a) ………………………………………………………………………….. 25
Texas Penal Code Section 6.03(b) ………………………………………………………………………….. 25
Texas Penal Code Section 6.03(c) ………………………………………………………………………….. 27
Texas Penal Code Section 19.04(b) ………………………………………………………………………… 37
x

Texas Penal Code Section 22.02(b) 37

Texas Penal Code Section 22.041(c) 20, 37

Secondary Sources

TEX. ATT’Y GEN. OP. No. JM-530, 1986 Tex. AG LEXIS 73 (1986) 42

TEX. ATT’Y GEN. OP. No. JC-0158 (1999). 42

Texas Office of Court Administration, Study of the Necessity of Certain Court Coasts

and Fees in Texas, September 21, 2014 41, 42

Tex. S.B. 1908, 83d Leg., R.S. (2013) 41

STATEMENT OF THE CASE

On February 26, 2016, a Harris County grand jury returned an indictment charging Appellant with the state jail felony offense of endangering a child alleged to have occurred on or about December 26, 2015. (C.R. at 21). On December 13, 2017, a jury found the Appellant guilty as charged in the indictment. (5 R.R. at 28-29; C.R. at 168-169). On December 14, 2017, the jury sentenced him to 2-years’ confinement in the Texas Department of Criminal Justice – Institutional Division. (7 R.R. at 78-79; C.R. at 168-169). No motion for new trial was filed. Appellant timely filed his notice of appeal on December 14, 2017. (C.R. at 171-172). The trial court certified Appellant’s right of appeal. (C.R. at 173).1
STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument. However, should the State of Texas or the Court request oral argument, Appellant requests the opportunity to participate in oral argument.

1 Appellant was convicted of three offenses arising from the same criminal transaction: Cause No. 1493128 (Endangering a Child), Cause No. 1500417 (Manslaughter), and Cause No. 1500418 (Aggravated Assault – Serious Bodily Injury). Appellant’s appeal of his convictions for manslaughter are aggravated assault – serious bodily injury docketed in this Court under Cause No. 01-18-00019-CR and 01-18-00020-CR

ISSUES PRESENTED

STATEMENT OF FACTS

Around 6:00 p.m. on December 26, 2015, Shannon LeBlanc was on her way

from League City to Katy for a family Christmas party. (3 R.R. at 144-145). While she

was driving down I-10 west just before the Barker Cypress Exit in the right most lane,

she heard a grinding sound behind her and to the left. (3 R.R. at 145). She started to

apply her brakes and when she looked back she saw a white car careening across the

lanes. (3 R.R. at 145). The white car clipped the back end of the car in front of her,

causing that to start flipping across the highway, eventually landing upside down on 2

the right shoulder under the Barker Cypress exit. (3 R.R. at 145). An older gentleman came out of the upside down car with help from other civilians and he had lacerations on his head and left arm. (3 R.R. at 147-148). A woman was still inside the vehicle who was not breathing. (3 R.R. at 150). She was unsure about how fast the Cadillac was going because by the time she saw it, the Cadillac was already out of control. (3

R.R. at 151). Ms. LeBlanc agreed that there were really no problems with traffic and she did not notice anything unusual until she heard the grinding sound. (3 R.R. at 152-153). She thought the Cadillac had hit either the side of the wall or the rubber cones for the HOV lane. (3 R.R. at 154). The Cadillac stopped in what looked to be in the middle of the highway. (3 R.R. at 159).

Robert O’Connor was also on Interstate 10 on December 26, 2015 at around 6:00 p.m. sitting in the passenger seat while his wife was driving. (3 R.R. at 162-164). His attention became focused on a white car because it passed him on the right going very fast. (3 R.R. at 165). A blue vehicle simultaneously passed them on the left side. (3 R.R. at 165). The white car was a Cadillac. (3 R.R. at 166). After the two cars passed them, the blue car immediately entered onto the HOV lane and it appeared that the Cadillac was trying to get onto the HOV as well. (3 R.R. at 166). The Cadillac was behind the blue vehicle. (3 R.R. at 175). The Cadillac cut right in front of Mr. O’Connor and tried to get over to the far left lane, but it appeared that he was unable to get onto the HOV lane so he stayed in the left-hand lane. (3 R.R. at 166). After the

Cadillac went out of sight, they saw it again after it had gotten into an accident, although they didn’t see it. (3 R.R. at 169, 175).

Michael Henry was also driving on I-10 near Barker Cypress on December 26, 2015 at around 6:00 p.m. (3 R.R. at 177). In his rear view mirror he saw two cars approaching really fast, a silver or gray Camry and a white Cadillac. (3 R.R. at 177). He was driving in the second lane from the right. (3 R.R. at 178). Mr. Henry testified that he thought the two cars were racing because they were going from lane to lane really fast. (3 R.R. at 178). There was not enough room on I-10 for the two cars to be making the maneuvers that they were doing. (3 R.R. at 179). Mr. Henry was driving at around 60 MPH and estimated the two cars were going closer to 90 or 100 MPH. (3

R.R. at 180). Mr. Henry testified that when he saw them in his rearview mirror, the Camry passed him and the Cadillac was directly behind him and approaching very really fast. (3 R.R. at 180). The Camry made into the HOV lane. (3 R.R. at 189). To avoid him, the Cadillac swerved over to the left to where the HOV lane was and it clipped the small silver or gray car. (3 R.R. at 180). After striking this car, the Cadillac bounced off the wall and slammed into the back of his car after Mr. Henry slowed down when the other car bounced over his hood. (3 R.R. at 181-182). The Cadillac stayed on the ground. (3 R.R. at 181-182). Mr. Henry identified the Appellant as the driver of the Cadillac. (3 R.R. at 183). The male in the other car had blood coming out of his exposed arm and the lady in the passenger seat was dead. (3 R.R. at 183). After

the crash, Appellant took his kid to somebody, but Mr. Henry did not remember who. 4

(3 R.R. at 184, 195). The child was brought back to the scene by a woman about 30 to 45 minutes later. (3 R.R. at 195-196). The child was no more than three years of age. (3 R.R. at 185).

On December 26, 2015, Charles Futrell, along with his wife, Yolanda Futrell, and their dogs, were driving from their house to Mrs. Futrell’s daughter’s house in Katy after buying Christmas presents in Beaumont. (3 R.R. at 25). Mr. Futrell was driving with his wife in the passenger seat. (3 R.R. at 28). The drive time from Mrs. Futrell’s daughter’s house is about an hour and a half as it was about 100 miles away. (3 R.R. at 25-26). Once they got out of town, Mr. Futrell got onto Interstate 10 and traveled westbound in the HOV lane. (3 R.R. at 26). He was going at about 60-65 miles per hour. (3 R.R. at 30). As he was about to get off the HOV lane at Barker Cypress, Mr. Futrell testified that all he could remember was that they were planning on easing on over to get off at the Greenhouse exit. (3 R.R. at 30, 40). At the time of the crash, Mr. Futrell assumed he was in the middle of the lanes after having moved over maybe two lanes of traffic. (3 R.R. at 31). He was checking his mirrors and using his blinkers while changing lanes. (3 R.R. at 31). Mr. Futrell estimated that there was moderate traffic and the distance between the cars was between 30 and 40 feet. (3

R.R. at 31). The traffic was going about the same speed as he was going. (3 R.R. at 42). Mr. Futrell did not see the white car that struck him and he did not see any cars that were driving erratically. (3 R.R. at 42). He also did not see anything from his back

mirror that caused him to think that there were fast moving cars behind him. (3 R.R.

at 42).

At some point, Mr. Futrell’s Nissan Versa was hit from the rear and recalled that it was a pretty good jolt that sent his body lurching forward. (3 R.R. at 32). Mr. Futrell testified that he remembered just a grinding sound, metal grinding like on the asphalt or concrete after being hit. (3 R.R. at 32). Mr. Futrell did not remember getting out of the car or being transported to the hospital. (3 R.R. at 34-35). He suffered numerous injuries: a severed artery, dislodged arm, a broken neck and shoulder, and his equilibrium was affected. (3 R.R. at 35). Mrs. Futrell died as a result of the injuries she sustained during the crash. (3 R.R. at 36-37).2 The car accident happened between 6:00 p.m. and 7:00 p.m. and it was dark outside. (3 R.R. at 47-49).

Officer Olajide Sulaiman has been a crash investigator with the Houston Police Department for five years and was the lead investigator in this case. (3 R.R. at 49, 51). The crash on I-10 was by the Barker Cypress exit ramp, west of Highway 6 and east of Greenhouse, and involved three cars, although later Officer Sulaiman testified that a fourth vehicle was also involved in the incident. (3 R.R. at 51, 98). It was believed that the fourth vehicle, a dark colored Camry, was racing with the Appellant. (3 R.R. at 101). The other three cars were a white Cadillac, a gray Nissan Versa, and a dark-colored Honda. (3 R.R. at 55). Appellant was the driver of the Cadillac. (3 R.R. at 57).

2 The medical examiner testified that the cause of death was blunt trauma of the head, torso and extremities with multiple fractures and brain injuries. (4 R.R. at 105). The manner of death was accident. (4 R.R. at 105).

Officer Sulaiman testified that he believed there were five main lanes and two HOV toll lanes on the westbound lanes of I-10. (3 R.R. at 53). He agreed that the crash included the main lanes and the HOV lane. (3 R.R. at 62). A debris trail was located east of the final resting spot of the vehicles. (3 R.R. at 64, 67). In the middle of the HOV lane was what Officer Sulaiman believed was a part of the rims of the Cadillac. (3 R.R. at 68-69). There were also scrapes on the concrete wall. (3 R.R. at 71-72). In the first main lane appeared to be a glove and some road marks from the vehicles. (3 R.R. at 64-65). The white part was more of a scrape and the black circle came from the tires. (3 R.R. at 65). The particular marks were caused by a vehicle rolling over and the tire actually hit on the side. (3 R.R. at 65-66). The white scrap could have been part of the vehicle that rolled over. (3 R.R. at 66). There were similar marks in Lane No. 2 of the main lanes. (3 R.R. at 67). This told Officer Sulaiman the general direction of the vehicle. (3 R.R. at 67). A fluid train also went across all lanes of traffic that led to the Cadillac. (3 R.R. at 70). The Cadillac came to a rest in the far right lane. (3 R.R. at 72-73). Officer Sulaiman testified that the Cadillac appeared to suffer damage to the rims and the body, the tire came off and only the rim remained and there was heavy front-end damage. (3 R.R. at 73-74). It was the only vehicle to suffer front-end damage. (3 R.R. at 141).

The Nissan’s windows were not intact and the side airbags were deployed. (3 R.R. at 75-76). The top of the vehicle had scrapes and some crush damage that indicated the vehicle rolled over. (3 R.R. at 76). The vehicle also had heavy damage to
7

the rear and to the roof, which had caved in a little bit. (3 R.R. at 76-77). The bumper was missing on the Nissan and could have been in the HOV lane. (3 R.R. at 134-135). Hair from the scalp was found in the fourth lane. (3 R.R. at 80). The Jaws of Life had to be used to retrieve Mrs. Futrell. (3 R.R. at 77). The Nissan was facing against traffic on the right shoulder after the accident. (3 R.R. at 79). Officer Sulaiman testified that his investigation indicated that the Nissan was going with traffic. (3 R.R. at 79). He agreed that most of the impact of the Nissan appeared to be on the right-hand side, particularly on the right-hand side of the roof. (3 R.R. at 134). The Honda Accord, the third vehicle involved in the accident, suffered heavy rear-end damage. (3 R.R. at 81).

911 calls reported that the Cadillac was driving at least 100 miles per hour, erratically, and caused the accident. (3 R.R. at 87-89). One of the callers described the Cadillac as having large hubcaps, driving very fast and weaving in and out of traffic. (3

R.R. at 88-89). Officer Sulaiman agreed that weaving in and out of traffic would be characterized as failing to maintain a single lane, that going over a hundred miles per hour would be characterized as failing to control speed, and that someone getting into a crash after doing both of these things would be characterized as failing to keep a proper lookout. (3 R.R. at 89). He also agreed that the Cadillac struck the Nissan. (3 R.R. at 89). Officer Sulaiman also testified that Appellant’s son was a passenger in the Cadillac who had an abrasion on the right side of his face. (3 R.R. at 104-105). To Officer Sulaiman’s knowledge, Appellant did not transport his son to the hospital, but

Appellant’s son was brought back to the scene by a woman whom he did not recall. (3 8

R.R. at 106, 140). He also testified that he did not believe that the Cadillac had been moved after the accident, but civilians did roll over and move the Nissan after the crash. (3 R.R. at 124-127). Officer Sulaiman did not believe that either the Nissan or the Honda had white paint on it. (3 R.R. at 130).

George Anderson, a captain with the Houston Fire Department, responded to the car accident on I-10 on December 26, 2015. (4 R.R. at 7-10). When he arrived on scene, one of the vehicles was rolled over against the guardrail on its side. (4 R.R. at 11). Mrs. Futrell was deceased in the vehicle and Mr. Futrell was on the ground with a very serious life threatening injury. (4 R.R. at 11-12). Mr. Futrell was sent to a level 1 trauma center for his injuries. (4 R.R. at 16). While on scene for over an hour, a woman drove up with a three-year-old boy and said he had been involved in the accident. (4 R.R. at 18-20). Capt. Anderson did not personally evaluate Appellant’s son, but the child had an abrasion on his cheek and was transported to Texas Children’s Hospital West, which was located near the scene of the accident (4 R.R. at 18-22).
Officer Craig Sarton is assigned to the crash reconstruction Unit of the Vehicular Crimes Division. (4 R.R. at 28-29). Three vehicles were involved in the accident by impact alone and a fourth car was sort of involved in the accident. (4 R.R. at 36). The crash scene was around a football field long, which was not really normal for a regular crash and indicated high rates of speed. (4 R.R. at 36-37). Tire and scrape

marks indicated that the cars involved in the accident went from one side of the 9

freeway to the other. (4 R.R. at 37-38). One of the tire marks was a rim tire mark that indicated the Nissan was traveling westbound and was no longer on its wheels as the car was tumbling. (4 R.R. at 38-40). The Cadillac involved in the accident had major front end damage indicative of striking an object that’s in front of it. (4 R.R. at 41). The impact area for the Cadillac was determined to be the inside concrete barrier that was on the other side of the roadway based on the impact area, the tire marks, and the fluid trial that led to the final resting areas. (4 R.R. at 41-42). The Honda Accord suffered rear damage all the way across the backside. (4 R.R. at 43-44). Most of the damage to the Honda Accord was in the trunk area above the bumper. (4 R.R. at 44). The Honda and the Cadillac had around the same bumper or front hood height. (4 R.R. at 45).

During his investigation, Officer Sarton obtained the Crash Data Retrieval Report (“CDR”) from the Appellant’s Cadillac. (4 R.R. at 46). The Nissan did not have a CDR. (4 R.R. at 79). The CDR is a report that’s inside of a vehicle that holds seatbelt data, speeds, braking, RPMs and so forth. (4 R.R. at 46). The data from Appellant’s Cadillac was downloaded. (4 R.R. at 49). Due to Appellant’s tires being bigger, the speed indicators on the CDR were off, but after adjustments, Appellant’s actual speeds were not much different than what the CDR indicated. (4 R.R. at 52, 59-61). The CDR report had two events in it. (4 R.R. at 53). Officer Sarton testified that the event was the two recordings that were severe enough for the CDR to record; having deployment and then non-deployment. (3 R.R. at 53). The CDR does not
10

count time with regards to the deployment, it goes by each time the ignition is turned on and off. (4 R.R. at 54).

In the first event that Officer Sarton testified about, the driver’s seatbelt was unbuckled. (4 R.R. at 53-54). Within five seconds before impact, the Cadillac was going 103 miles per hour and the RPMs were 4736 according to the CDR. (4 R.R. at 57-58). Appellant was only applying 22 percent of the gas pedal. (4 R.R. at 58). Appellant’s speed dropped to 101 MPH and 18 percent throttle four seconds before impact. (4 R.R. at 58). The speed remained unchanged three seconds before impact and Appellant was coasting. (4 R.R. at 59). The speed dropped to 95 MPH with no gas being applied two seconds prior to the impact and Appellant’s speed dropped to 82 MPH a second before the crash. (4 R.R. at 59). Three seconds before the crash the brake lights were activated, but you cannot tell how much braking was used from the CDR. (4 R.R. at 62-63).

In the second event discussed, the driver seatbelt was off. (4 R.R. at 64). There was a one-second overlap between the two events in this case. (4 R.R. at 65). There was a 20 or 25 percent decrease in the RPM’s between 5 and 4 seconds, a significant decrease. (4 R.R. at 87-88). Officer Sarton testified that the overlap occurred around the 4 and 3 second marks of the other event. (4 R.R. at 65). Three seconds before the vehicle speed was 95 with no throttle. (4 R.R. at 65). The brake was on. (4 R.R. at 88). Two seconds before the vehicle speed was 82 and at one second before, the vehicle’s speed was 38 MPH, as very extreme drop in speed. (4 R.R. at 65). One of the
11

explanations for that drop in speed was a head-on collision on an open freeway. (4

R.R. at 66). The side barrier could not slow a car down that much and there was no car in front of the Appellant that could slow him down that much. (4 R.R. at 66). The velocity change for the deployment event was minus 19.56, significantly different than the non-deployment event in terms of velocity decrease. (4 R.R. at 87). The brake lights on Appellant’s car illuminated at 101 MPH. (4 R.R. at 68). A 100 MPH car would take two seconds to cross the length of a football field. (4 R.R. at 68). Officer Sarton agreed that a vehicle traveling at a high rate of speed such as 100 MPH, weaving in and out of traffic at that same speed, fails to maintain a single lane, and collides with another vehicle could cause serious bodily injury or death. (4 R.R. at 71). He also agreed that Appellant’s vehicle did all of those things based upon the evidence he reviewed. (4 R.R. at 71).

Officer Sarton was not aware of a CDR for the Camry. (4 R.R. at 79). Officer Sarton did, however, attempt to verify the speeds at which the Camry might have been traveling in the HOV lane due to having violations from the Camry on the HOV cameras. (4 R.R. at 79-80). The Camry triggered two HOV toll stations, one at Wilcrest and the other one at Eldridge. (4 R.R. at 93). The Camry was traveling 116 MPH at Wilcrest and 98 MPH at Eldridge. (4 R.R. at 93-94). To exit the HOV and proceed west on the Katy freeway you can use the HOV exit or go over the white panels. (4 R.R. at 94). The first is the right way and the other would be the wrong way.

(4 R.R. at 94). The Camry possibly suffered damage as a result of hitting the pylons. (4 12

R.R. at 97). Officer Sarton agreed that the non-deployment event was relatively minor compared to the deployment event and whatever the event was, it was not enough to cause the airbags to deploy. (4 R.R. at 91-92). He also agreed that in certain circumstances, a car can help cause an accident without physically being involved in the accident. (4 R.R. at 92).

Appellant testified that he was leaving for a kid’s birthday party with his son on December 26, 2015. (4 R.R. at 122-123). Four cars left for the location of the party, one of the cars was the Cadillac and another was a grayish Camry. (4 R.R. at 124). Appellant had recently purchased the Cadillac and was driving it. (4 R.R. at 129-130). He had changed the rims on the car and described the car as driving smoother with the rims on. (4 R.R. at 130, 132). Appellant described himself as a fast driver and agreed that his practice was to weave in and out lanes while driving. (4 R.R. at 130-131). He had driven over 100 MPH before, but not in the Cadillac. (4 R.R. at 131-
132). The Camry was driven by Keyera Melton. (4 R.R. at 124).

All four cars met at a Texaco on 45 and Veterans Memorial to get gas. (4 R.R. at 126). Ms. Melton left the gas station first. (4 R.R. at 127). Appellant and his friend Latrell Phillips stayed behind for five or six minutes and Appellant smoked half a cigar of marijuana. (4 R.R. at 127). Appellant did not have the location of the party when he left the gas station. (4 R.R. at 127). The plan was for Ms. Phillips to call and ask for the location when they got on I-10 west. (4 R.R. at 128). Appellant got to within 5 or

6 car lengths to the Camry on Highway 45 south. (4 R.R. at 128). At that point,

Appellant’s plan was to keep up with the Camry and follow Ms. Melton to the party. (4 R.R. at 128-129). He was weaving in and out of traffic as he drove down Highway 45 to I-10. (4 R.R. at 134). Ms. Melton was probably going 75 to 80 MPH while weaving in and out of traffic. (4 R.R. at 134). By the time they got to I-10, Appellant was behind Ms. Melton. (4 R.R. at 135). He was able to stay close to the Camry by weaving in and out of lanes because she was doing the same. (4 R.R. at 135). Appellant’s son was calm as Appellant was driving. (4 R.R. at 135). Appellant did not see or hear any cars honking their horns at him because of the way he was driving and cars were getting out of his way. (4 R.R. at 136).

Appellant testified that Ms. Melton got into the HOV lane, which was something he did not anticipate because she did not have an EZ tag. (4 R.R. at 137). When Ms. Melton got on the HOV lane, her speed increased and Appellant was not able to keep up. (4 R.R. at 138). Appellant did not know where he was going so he did not want to lose her. (4 R.R. at 138). Appellant did not try to call Ms. Melton as his cell phone was hooked up to his music and he did not know if Ms. Phillips tried to do so. (4 R.R. at 138). When he lost sight of Ms. Melton, she was going between 90 and 100 MPH. (4 R.R. at 139). Appellant was not able to catch up with Ms. Melton. (4

R.R. at 139). After the Appellant lost sight of Ms. Melton’s car, his speed varied, as he had to hit his brakes at times when he came upon a car he could not move around he would speed back up after he got around other cars. (4 R.R. at 139-140). Appellant

felt confident and focused while driving on I-10, but he eventually lost control of the 14

Cadillac near the Greenhouse exit. (4 R.R. at 140-141). Appellant testified that he lost control because he was trying to cut between cars and at the same Ms. Melton cut from out of the HOV lane straight to the far right lane and cut off the whole freeway and everyone had to hit their brakes. (4 R.R. at 141). When he lost control of the car, Appellant had both of his feet on the brakes to avoid hitting other cars, but the car slid into the wall. (4 R.R. at 142-144). After hitting the wall, his airbag deployed, the car went up the wall, and he could not turn the wheel. (4 R.R. at 144). Appellant’s car came to a stop two lanes away from the right hand guardrail and was eventually moved by civilians. (4 R.R. at 145, 148).

Appellant was not aware of any cars trying to avoid him as he was going on to the right shoulder, but his windows were so tinted that he might not have been able to see around him. (4 R.R. at 145, 166). Appellant was not watching his speedometer or really judging his speed shortly before the accident. (4 R.R. at 146). Appellant was not aware of the risks that his driving posed for other drivers that night and he did not think this would happen. (4 R.R. at 155, 158-159). On cross-examination, Appellant agreed that he knew from his other experiences with his other vehicles about the dangers of driving fast and weaving in and out of traffic because you could wreck. (4

R.R. at 161). He also agreed that a person speeding along at 100 MPH could get into a crash that causes serious bodily injury or death, but later stated that back then he did not think accidents would happen because of the way he was driving. (4 R.R. at 168-

170, 172). Appellant did not agree that driving fast would also slow his reaction time.

(4 R.R. at 161). Appellant testified that his wrecking, hitting a wall, and causing a big commotion, caused the wreck. (4 R.R. at 171). After the accident, Ms. Phillips took the Appellant’s son to the side of the freeway because Appellant did not want his son to get hurt. (4 R.R. at 149). Appellant’s son was hysterical and crying, but Appellant did not see any injuries on him and he wasn’t injured in the crash. (4 R.R. at 148-150, 168). Ms. Phillips took his son to the mother who brought him back to scene later. (4

R.R. at 150-151). Appellant also assisted in helping Mr. Futrell out of his car. (4 R.R. at 152-154).
SUMMARY OF THE ARGUMENT

Appellant contends that the evidence is legally insufficient to support Appellant’s conviction as the offense of endangering a child is a result-of-conduct offense and the State failed to prove beyond a reasonable doubt that Appellant intentionally or knowingly endangered his child. Appellant’s actions did not demonstrate a desire from the Appellant to place his son in imminent danger of death, bodily injury, physical or mental impairment, or that he was reasonably certain that his actions would result in his son being placed in imminent danger of death, bodily injury, physical or mental impairment. The evidence shows that, at best, Appellant, was aware of, but ignored, the risks that he was engaging in by speeding and weaving in and out of traffic with his son as a passenger in his car. As the State only charged the Appellant with intentional or knowing conduct, the evidence is legally insufficient to support the jury’s verdict.
16

Furthermore, Appellant contends that the jury charge’s instructions defining “intentionally” or “knowingly” were erroneous as it included superfluous instructions regarding nature-of-conduct and circumstances of conduct definitions as endangering
a child is a result-of-conduct offense. Because the state of the evidence only focused on the particular conduct that Appellant engaged in, the State’s arguments implied that the offense was a nature-of-conduct offense, and the jury charge did not cure this error, Appellant suffered egregious harm.

Appellant also contends that the trial court erred in assessing certain court costs totaling $279.00 as the Appellant was convicted of multiple offenses arising from a single criminal transaction. The offense of endangering a child was the lowest category of offenses that Appellant was convicted of, thus the shared costs totaling $279.00 should be deleted from the bill of costs.

Finally, Appellant contends that the Court of Criminal Appeals in Salinas v. State

determined that a court cost statute is facially unconstitutional in violation of the separation of powers clause of the Texas Constitution if the funds are not directed by statute to be used for a criminal justice purpose and, instead, went to the State’s general revenue fund. This Court, in Allen v. State, determined that the funds collected pursuant to TEX. CODE OF CRIM. PROC. ART. 102.011(a)(3) and (b) are directed towards the general revenue fund of the county, city and State. Based upon this Court’s decision in Allen, Appellant requests that the $15 fee for summoning witnesses/mileage be deleted from the bill of costs as the statute is facially
17

unconstitutional in violation of the separation of powers clause of the Texas Constitution as the funds are not directed by statute to be used for a criminal justice purpose and instead go to the general revenue funds.
ARGUMENT

A. Applicable Law and Standard of Review

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime 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, 318-319 (1979) and Hooper v. State, 214 S.W.3d 9, 13, (Tex. Crim. App. 2007). “Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense or two; or (2) the evidence conclusively establishes a reasonable doubt.” Ervin v. State, 331 S.W.3d 40, 55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). “Direct and circumstantial evidence are treated equally: ‘Circumstantial evidence is as probative as direct evidence in

establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

“An appellate court determines 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.” Ervin, 331 S.W.3d at 55. “[J]uries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences.” Hooper, 214 S.W.3d at 15. If the evidence at trial raises only a suspicion of guilt, then the evidence is insufficient, even if the suspicion is strong. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010). “It is the obligation and responsibility of appellate courts to ensure that the evidence presented actually supports a conclusions that the defendant committed the crime that was charged.” Id.

Legal insufficiency is “measured against the hypothetically correct jury charge for the case.” Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002), quoting Golihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). The hypothetically correct charge is one that “accurately sets out the law, as authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Section 22.041(c) of the Texas Penal Code provides that a person commits the

offense of endangering a child if he “intentionally, knowingly, recklessly, or with

criminal negligence, by act or omission, engages in conduct that places a child younger

than 15 years in imminent danger of death, bodily injury, or physical impairment.”

TEX. PEN. CODE § 22.041(c). Under Section 22.041(c), the culpable mental state

applies to the result of Appellant’s conduct. See Millslagle v. State, 81 S.W.3d 895, 896

fn. 1 (Tex. App.—Austin 2002, pet. ref’d).

B. Analysis

The State alleged, in pertinent part, that Appellant:

did then and there unlawfully, INTENTIONALLY AND KNOWINGLY engage in conduct that placed [the Appellant’s son], a child younger than fifteen years of age and hereafter called the Complainant, in imminent danger of bodily harm, namely, by

WEAVING IN AND OUT OF TRAFFIC AT A HIGH RATE OF SPEED…

(C.R. at 21).3

Appellant contends that endangering a child is a result-of-conduct offense.

Thus, the evidence is insufficient to prove beyond a reasonable doubt that the

Appellant intentionally or knowingly committed the offense of endangering a child as

the evidence demonstrated that Appellant did not intentionally or knowingly engage

3 The State did not allege that Appellant committed the offense of endangering of a child either recklessly or with criminal negligence.

in conduct that placed his son in imminent danger. At best, the Appellant’s engaged in the conduct recklessly and potentially, only with criminally negligence.

“A result-of-conduct offense—such as injury to a child, the majority of assaultive crimes, and homicide offenses—does not specify the nature of conduct.” Hill v. State, 265 S.W.3d 539, 542 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d), citing Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985). “Therefore, the nature of conduct in these offenses is inconsequential to the commission of the crimes” Id. “What matters is that the conduct is done with the required culpability to effect the result that the Legislature has specified.” Id. In other words, “[f]or a result of conduct offense, the culpable mental state relates not to the nature or circumstances surrounding the charged conduct, but to the result of that conduct.” Assavedo v. State, No. 05-15-00480-CR & No. 05-15-00481-CR, 2016 Tex. App. LEXIS 8201 at *13 (Tex. App.—Dallas July 29, 2016, no pet.) (mem. op., not designated for publication), citing Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003).

The Austin Court of Appeals has held that Texas Penal Code § 22.041(c) “appears to be a ‘result of conduct’ offense.” Millslagle v. State, 81 S.W.3d 895, 896 fn. 1 (Tex. App.—Austin 2002, pet. ref’d).4 The Austin Court of Appeals believed that “[b]ecause the only conduct element that can be the object of all four culpable mental

4 Appellant acknowledges that this Court is not bound by the decision of another court of appeals. See Shook v. State, 156 Tex. Crim. 515, 244 S.W.2d 220, 221 (Tex. Crim. App. 1951) and Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex. App.—Beaumont 1996, no writ).

states is ‘result of conduct,’ the inclusion of all four culpable mental states in the definition of the offense is a strong indication that it is a specific result type of crime.” Id., citing Alvarado v. State, 704 S.W.2d 36, 38-39 (Tex. Crim. App. 1985) (“The only ‘element of conduct’ which can be the object of all four of the culpable mental states is, ‘result of conduct.’”). The Austin Court of Appeals also believed that because “section 22.041(c) does not require that the accused’s conduct be of a particular nature or be committed under particular circumstances,” and “[i]nstead any conduct that places a child in imminent danger is prohibited,” further indicated “that endangering a child is a specific result offense.” Id. Thus, under Section 22.041(c), the culpable mental state applies to the result of Appellant’s conduct. Appellant urges this Court to adopt the reasoning of the Austin Court of Appeals.5

Viewing the evidence in a light most favorable to the verdict, the overwhelming evidence in this case demonstrated that, at best, the Appellant, through the manner of his driving, created a substantial and unjustifiable risk and consciously disregarded the risk that placed his son in imminent danger of death, bodily injury, physical or mental

5 The Fort Worth Court of Appeals has reached a contrary position and held the offense of child endangerment is a “nature of conduct” offense. See Walker v. State, 95 S.W.3d 516, 520-521 (Tex. App.—Fort Worth 2002, pet. ref’d) (“The language of section 22.041(c) is unambiguous and expresses a clear legislative intent that a person commits the offense of child endangerment if he intentionally or knowingly ‘engages in conduct that places a child in imminent danger of death, bodily injury, or physical or mental impairment. The statue does not require proof that the person intend or know that his conduct places the child in such imminent danger.”). Appellant believes that the Fort Worth Court of Appeals criticism of the Austin Court of Appeals ignores the fact that no particular conduct or circumstances are proscribed under the statute and the only conduct element in all four culpable mental states is “result of conduct.”

impairment. In other words, at best, the evidence showed that the Appellant was reckless regarding the result of his conduct.

Three vehicles were involved by impact alone and a fourth car, a Camry, was sort of involved. (4 R.R. at 36). It was undisputed that Appellant was driving at a high rate of speed and was weaving in and out of traffic before the crash. (3 R.R. at 87-89, 165, 177-180; 4 R.R. at 37, 57-71, 130-132, 134-135). Multiple 911 calls were introduced into evidence that reported the Appellant’s Cadillac was erratically driving at a least 100 miles per hour and caused the accident. (3 R.R. at 87-89). Multiple witnesses also testified as to Appellant’s speeding and weaving in and out of traffic and one witness also believed that the Appellant and the driver of the Camry were racing. (3 R.R. at 101, 178). However, Appellant described himself as a fast driver whose practice was to weave in and out of lanes while he was driving. (4 R.R. at 130-131, 159-160). He had driven over a 100 MPH in other cars. (4 R.R. at 131-132). Appellant testified that he was following the Camry in this manner because he didn’t know the location for a jump party and the driver of the Camry was also driving at a high rate of speed and weaving in and out of traffic. (4 R.R. at 127-129, 134-135).6 Appellant did not see or hear any cars honking their horns at him because of the way he was driving and cars were getting out of his way. (4 R.R. at 136). Appellant was not aware of any cars trying to avoid him as he was going on to the right shoulder,

6 Officer Sarton estimated that the Camry was traveling at 116 MPH at Wilcrest and at 98 MPH at Eldridge. (4 R.R. at 93-94).

although his windows were so tinted that he might not have been able to see around him. (4 R.R. at 166). Appellant was not watching his speedometer or really judging his speed shortly before the accident and he was not aware of the risks that his driving posed for other drivers that night as he did not think this would happen. (4 R.R. at 146, 155, 158-159).7 On cross-examination, Appellant agreed that he knew from his other experiences with his other vehicles about the dangers of driving fast and weaving in and out of traffic because you could wreck. (4 R.R. at 161). He also agreed that a person speeding along at 100 MPH could get into a crash that causes serious bodily injury or death, but later stated that at the time of the accident he did not think accidents would happen because of the way he was driving. (4 R.R. at 168-170, 172). Appellant did not agree that driving fast would slow his reaction time. (4 R.R. at 161).

Eventually, the Camry got into the HOV lane, but the Appellant was unable to follow even though it appeared to Mr. O’Connor that Appellant was trying to get on the HOV lane after cutting in front of him. (3 R.R. at 166, 4 R.R. at 137). After speeding up, and continuing to weave in and out of traffic in order to keep up with the Camry, Appellant lost control, and caused the accident. (4 R.R. at 171).8 He hit his

7 Appellant’s CDR confirmed that he was traveling over 100 MPH shortly before the accident. (4 R.R. at 57-68).

8 Appellant testified that what led him to lose control was when he was trying to cut between cars, Ms. Melton, at the same, cut from out of the HOV lane straight to the far right lane and cut off the whole freeway and everyone had to hit their brakes. (4 R.R. at 141). Mr. Henry testified that the accident started when Appellant clipped the Nissan after swerving to avoid running into him, hit the wall, and veered back into oncoming traffic and slammed into the back of his car. (3 R.R. at 180-182). Officer Sarton also testified that Appellant’s Cadillac had major front end damage indicative of

brakes in order to avoid other cars, but he could not avoid the wall. (4 R.R. at 142-144). According to Appellant’s testimony, the Camry going into the HOV lane, speeding up, and coming out in the manner in which it did was something Appellant did not anticipate. (4 R.R. at 137). While Appellant was speeding and weaving in and out of traffic, Appellant’s son was secured in a car seat in the rear passenger seat and was calm. (3 R.R. at 104-105; 4 R.R. at 124, 135, 148). The only injury Appellant’s son suffered was an abrasion on his cheek. (3 R.R. at 104-105; 4 R.R. at 18-22; 9 R.R. at State’s Exhibit 194).

“A person acts intentionally, or with intent, with respect…to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX. PEN. CODE § 6.03(a). “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” TEX. PEN. CODE § 6.03(b). “The formulated distinction between intentional and knowing, as to results, is thus between desiring the result and being reasonably certain that it will occur.” Johnston v. State, 150 S.W.3d 630, 634 (Tex. App.—Austin 2004, no pet.).

Appellant’s actions, although reprehensible, do not demonstrate a desire from the Appellant to place his son in imminent danger of death, bodily injury, physical or mental impairment, or that he was reasonably certain that his actions would result in

striking an object that’s in front of it and the impact area for the Cadillac was the inside concrete barrier that would have been closest the HOV lane. (4 R.R. at 41-42).

his son being placed in imminent danger of death, bodily injury, physical or mental impairment. Appellant described himself as a fast driver whose practice was to weave in and out of lanes while he was driving and as one who had driven over a 100 MPH in other cars. (4 R.R. at 130-132, 159-160). His son was by all accounts secured in a car seat in the rear passenger seat and was calm throughout the trip. (3 R.R. at 104-105; 4 R.R. at 124, 135, 148). Appellant did not see or hear any cars honking their horns at him because of the way he was driving and cars were getting out of his way. (4 R.R. at 136). Appellant was also apparently not aware of any cars that were trying to avoid him. (4 R.R. at 166). He admitted that he was not watching his speedometer or really judging his speed shortly before the accident and he was not aware of the risks that his driving posed for other drivers that night as he did not think this would happen. (4 R.R. at 146, 155, 158-159). However, Appellant agreed that he knew from his other experiences with his other vehicles about the dangers of driving fast and weaving in and out of traffic because you could wreck. (4 R.R. at 161). He also agreed that a person speeding along at 100 MPH could get into a crash that causes serious bodily injury or death, but later stated that back then he did not think accidents would happen because of the way he was driving. (4 R.R. at 168-170, 172). He also felt confident and focused while driving on I-10. (4 R.R. at 140-141). Traffic was moderate and it appeared that for all intents and purposes that Appellant was navigating the flow of traffic without much trouble.

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that that circumstances exist or the result will occur.” TEX. PEN. CODE § 6.03(c). “The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id. “[A]t the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007), quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). “Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Id. Proof regarding mens rea may be illustrated through circumstantial evidence. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998) and Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

Nothing in evidence show that Appellant intentionally desired his conduct to place his son in imminent danger of death, bodily injury, physical or mental impairment, or that he was reasonably certain that his actions would result in his son being placed in imminent danger of death, bodily injury, physical or mental impairment. The evidence shows that, at worst, Appellant, was aware of, but ignored, the risks that he was engaging in by speeding and weaving in and out of traffic with his son as a passenger in an attempt to get to a party, or even as some of the testimony indicated, race the Camry. Appellant had driven in this manner frequently
27

and had his son secured in a car seat. Appellant’s singular focus was keeping up with

the Camry and engaged in risky behavior. While he was driving, his son was calm, he

was navigating traffic without much difficulty, and either ignored the risk that he was

consciously aware of, or was unaware of the risks he was taking. Thus, because, the

State only charged Appellant with intentional or knowingly endangering a child, the

evidence, when viewed in the light most favorable to the verdict, is legally insufficient

to support his conviction for endangering a child. This Court should reverse

Appellant’s conviction and enter a judgment of acquittal.

A. Applicable Law

A “trial judge must ‘distinctly set[ ] forth the law applicable to the case’ in the

jury charge.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013), citing TEX.

CODE OF CRIM. PROC. ART. 36.14. “‘It is not the function of the charge merely to

avoid misleading or confusing the jury; it is the function of the charge to lead and to

prevent confusion.’” Id., quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App.

1977).

“Section 6.03 of the Texas Penal Code sets out: four culpable mental states-

intentionally, knowingly, recklessly, and criminally negligently; two possible conduct

elements-nature of the conduct and the result of the conduct; and the effect of the

circumstances surrounding the conduct.” Price v. State, 457 S.W.3d 437, 441 (Tex.

Crim. App. 2015). “In a jury charge, the language in regard to the culpable mental

state must be tailored to the conduct elements of the offense.” Id. The Court of

Criminal Appeals explained in Robinson v. State:

We distinguish offenses into three different categories of offenses based on the offense-defining statute’s gravamen, or focus: “result of conduct,” “nature of conduct,” or “circumstances of conduct” offenses. Result-of-conduct offenses concern the product of certain conduct. Nature-of-conduct offenses are defined by the act or conduct that is punished, regardless of any result that might occur. Lastly, circumstances-of-conduct offenses prohibit otherwise innocent behavior that becomes criminal only under specific circumstances.

Robinson v. State, 466 S.W.3d 166, 170 (Tex. Crim. App. 2015) (citations omitted)

“A trial court errs when it fails to limit the language in regard to the applicable

culpable mental states to the appropriate conduct element.” Price, 457 S.W.3d at 441,

citing Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994).

B. Standard of Review

In analyzing a jury charge issue, “an appellate court’s first duty is to decide

whether error exists.” Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

If error exists, the court then analyzes that error for harm. Id. The degree of harm

necessary for reversal depends upon whether the defendant preserved the error by

objection. Id. Where a defendant fails to object to or states that he has no objection to

the charge, the court will reverse when the error was so egregious and created such

harm that the defendant did not have a fair trial. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.

Crim. App. 2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)..

Egregious harm must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d

226, 227 (Tex. Crim. App. 2002). To determine whether a defendant has sustained

egregious harm from a non-objected-to instruction, appellate courts consider (1) the

entire charge; (2) the state of the evidence, including contested issues; (3) arguments

of counsel; and (4) any other relevant information. Almanza, 686 S.W.2d at 171.

Errors that result in egregious harm are those that affect “the very basis of the case,”

“deprive the defendant of a valuable right,” or “vitally affect a defensive theory.” Ngo

v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Neither party bears a burden of

production or persuasion with respect to an Almanza harm analysis, the question

being simply what the record demonstrates. Hollander v. State, 414 S.W.3d 746 (Tex.

Crim. App. 2013) (citations omitted).

C. Analysis

1. The instruction defining “intentionally” was erroneous as it included the definition of the nature of his conduct and “knowingly” was erroneous as it included the definition of the nature of his conduct and the circumstances of his conduct when the charge of endangering of a child is a “result-oriented” offense.

In the abstract of the jury charged, the Court defined intentionally as:

A person acts intentionally, or with intent, with respect to the nature of his conduct or as a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(C.R. at 150).

In the abstract of the jury charged, the Court defined knowingly as:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct, or to circumstances surrounding his conduct, when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(C.R. at 150)

The application paragraph stated, in pertinent part:

Now, if you find from the evidence beyond a reasonable doubt that the defendant, Gustavo Aybar, in Harris County, Texas, on or about the 26th day of December, 2015, did then and there unlawfully, intentionally or knowingly engage in conduct that placed [the Appellant’s son], a child younger than fifteen years of age, in imminent danger of bodily injury, namely, by weaving in and out of traffic at a high rate of speed, and the defendant did not voluntarily deliver [the Appellant’s son] to a designated emergency infant care provider under Section 262, 302 Texas Family Code, then you will find the defendant guilty as charged in the indictment.

(C.R. at 150-151)

As Appellant contended supra, endangering a child is a result-of-conduct

offense. See Millslagle v. State, 81 S.W.3d 895, 896 fn. 1 (Tex. App.—Austin 2002, pet.

ref’d). Based upon this, the inclusion of nature-of conduct instructions within the

definition of “intentionally” and the inclusion of nature-of-conduct and

circumstances-of-conduct instructions within the definition of knowingly were error.

See Hill, 265 S.W.3d at 543 and Cook, 884 S.W.2d at 491.

2. Appellant suffered egregious harm.

In this case, trial counsel lodged no objection to the jury charge. (4 R.R. at 23).

Therefore, if this Court determines that the trial court erred it must be determined

whether or not suffered egregious harm. To determine whether a defendant has

sustained egregious harm from a non-objected-to instruction, appellate courts

consider (1) the entire charge; (2) the state of the evidence, including contested issues;

(3) arguments of counsel; and (4) any other relevant information. Almanza, 686 S.W.2d at 171.

The jury charge in this case included nature of conduct and circumstances of conduct instructions within the definition of knowingly and nature of conduct instructions within the definition of intentionally. (C.R. at 150). Here, the relevant portion of the application paragraph provided:

(C.R. at 150-151)

The jury was authorized to convict the Appellant if he intentionally or

knowingly engaged in conduct that placed his son in imminent danger of bodily

injury. There is nothing in the application paragraph that directly informs the jury that intentionally or knowingly should refer to the result of Appellant’s conduct and, as evidenced by two competing Court of Appeals opinions, reasonable persons have interpreted this language as meaning that offense is a result-of-conduct or nature-of-conduct. Therefore, the jury charge as a whole does not appear to cure the harm that was caused by the erroneous instructions.

For the State of the evidence, the main dispute at trial was whether Appellant engaged in reckless or criminally negligent conduct that resulted in the death of Mrs. Futrell and the injuries to Mr. Futrell. However, the evidence that was adduced regarding Appellant’s son seemed to primarily concern that he was in the car as the Appellant was weaving in and out of traffic at a high rate of speed. In other words, it appears the evidence focused on what conduct Appellant engaged in. Officer Sulaiman testified that Appellant’s son was a passenger in his Cadillac who had an abrasion on the right side of his fight. (3 R.R. at 104-105). Appellant did not transport his son to the hospital to Officer Sulaiman’s knowledge, but his son was brought back to the scene by women whom he did not recall. (3 R.R. at 106, 140). Mr. Henry testified that Appellant took his kid to somebody after the crash, although Mr. Henry did not remember who. (3 R.R. at 184, 195). Appellant also testified that his son was in the car in a car seat in the rear passenger side. (4 R.R. at 124, 135, 148). Finally, Capt. Anderson testified that while on scene for over an hour, a woman drove up with a three-year-old boy and said he had been involved in the accident. (4 R.R. at 18-
33

20). Appellant’s son had an abrasion on his cheek and was transported to Texas

Children’s Hospital West, which was located near the scene of the accident (4 R.R. at

18-22).

For the arguments of counsel, Appellant’s counsel focused almost exclusively

on Appellant’s conduct being negligent instead of reckless, primarily in regards to his

conduct regarding Mr. and Mrs. Futrell. (5 R.R. at 11-19). Beyond a brief mention that

Appellant’s son was in the car with the Appellant, his counsel made no further

mention of him. (5 R.R. at 16). The State also spent a great deal of time arguing that

Appellant’s conduct was reckless. (5 R.R. at 19-25). However, in discussing the jury

charge, the State argued that:

endangering a child doesn’t have to actually result in bodily injury to that child, it just has to have conduct that places a child younger than 15 years in imminent danger of bodily injury. So, that bodily injury, that hurt, that ouch doesn’t have to happen. The fact that he put his own son in a situation where it was imminent that that could have occurred, that’s sufficient under the law.

(5 R.R. at 9-10).

Later, the State argued that Appellant ignored risks involving his own child and

that Appellant put his own three-year-old son in danger of bodily injury that night. (5

R.R. at 20, 23). Appellant contends that the majority of the State’s arguments implied to the jury that the offense of endangering a child was a nature-of-conduct offense as the State said that Appellant’s conduct that put his son at risk was sufficient under the law. See Walker, 95 S.W.3d at 520-521 (“The language of section 22.041(c) is

unambiguous and expresses a clear legislative intent that a person commits the

offense of child endangerment if he intentionally or knowingly ‘engages in conduct

that places a child in imminent danger of death, bodily injury, or physical or mental

impairment. The statue does not require proof that the person intend or know that his

conduct places the child in such imminent danger.”). If this Court agrees with

Appellant’s contention that endangering a child is a result-of-conduct offense, this

potentially would have caused the jury confusion as to which definition of

intentionally or knowingly to apply. Based on the foregoing, Appellant suffered

egregious harm.

A. Applicable Law

Article 102.073 of the Texas Code of Criminal Procedure provides, in relevant

part:

(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.

(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.

TEX. CODE OF CRIM. PROC. ART. 102.073

“Consistent with article 102.073, where a defendant is convicted of two or more offenses or of multiple counts of the same offense in a single criminal action, and the convictions are the same category of offense and the costs are all the same, we hold that the court costs should be based on the lowest cause number.” Williams v. State, 495 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d) (op. on reh’g).
B. Preservation of Error

The Court of Criminal Appeals has explained that challenges to court costs can be raised for the first time on appeal and “[c]onvicted defendants have constructive notice of mandatory court costs set by statute and the opportunity to object to the assessment of court costs against them for the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v. State, the Court further explained that because the cost bill is most likely unavailable at the time of the judgment, an “Appellant need not have objected at trial to raise a claim challenging the bases of assessed costs on appeal.” Johnson v. State, 423 S.W.3d 385, 390-391 (Tex. Crim. App. 2014).
C. Analysis

Appellant was convicted of three offenses arising from the same criminal

transaction:

Cause No. 1493128 (Endangering a Child) 36

Cause No. 1500417 (Manslaughter)

Cause No. 1500418 (Aggravated Assault Serious Bodily Injury)

(1 R.R.)

Endangering a Child is a State Jail Felony as alleged in the indictment. TEX. PEN. CODE § 22.041(c). Manslaughter and Aggravated Assault – Serious Bodily Injury are second degree felonies as alleged in the indictment. See TEX. PEN. CODE § 19.04(b) and § 22.02(b). The bill of costs in each case reflects that the following fees were assessed for all three cases:

Sheriff’s Jury Fee ($5) Commitments ($5)
Release ($5)

District Clerk’s Fee ($40) Jury Fee ($40)

Security Fee ($5)

Consolidated Court Cost ($133) Jury Reimbursement Fee ($4)
DC Records Preservation ($25) Support of Indg Defense ($2) Support of Judiciary Fee ($6) Court Technology Fee ($4)
Electronic Filing State ($5)

(C.R. (1493128) at 170; C.R. (1500417) at 179; C.R. (1500418) at 160).

These identical fees results in a total of $279.00.

Appellant’s conviction for endangering a child is the lowest category offense as it is a state jail felony while his convictions for manslaughter and aggravated assault are of the same category as both are second degree felonies. Because Appellant’s

manslaughter conviction is from the lowest cause number, these identical court costs

should have been assessed only on the manslaughter case. See Williams, 495 S.W.3d

590 and TEX. CODE OF CRIM. PROC. ART. 102.073(b). Thus, this Court should delete the following identical fees totaling $279.00 from the bill of cost in Appellant’s conviction for endangering a child. See TEX. R. APP. P. 43.2(b).
4. Whether the fee of $15 for summoning witnesses/mileage pursuant to TEX. CODE OF CRIM. PROC. ART. 102.011(a)(3) and (b) is unconstitutional to the extent it allocates funds to the general fund of the city, county, and State because those funds allow spending for purposes other than legitimate criminal justice purposes in violation of the separation of powers provision of the Texas Constitution?

A. Applicable Law

Article II, Section 1, of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. ART. II., § 1.

“One way the separation of powers provision is violated ‘is when one branch

of government assumes or is delegated a power more properly attached to another

branch.’” Hernandez v. State, No. 01-16-00755-CR, 2017 Tex. App. LEXIS 7612 *18

(Tex. App.—Houston [1st Dist.] August 10, 2017, no pet. h.) (designated for

publication), citing Ex parte Lo, 424 S.W.3d 10, 28 (Tex. Crim. App. 2013). “The

courts are delegated a power more properly attached to the executive branch if a

statute turns the courts into ‘tax gatherers,’ but the collection of fees in criminal cases

is a part of the judicial function ‘if the statute under which court costs are assessed (or

an interconnected statute) provides for an allocation of such court costs to be

expended for legitimate criminal justice purposes.’” Id. at *19, citing Peraza v. State, 467

S.W.3d 508, 517 (Tex. Crim. App. 2015).

The Code of Criminal Procedure mandates the following fee:

(a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer:
. . .
(3) $5 for summoning a witness…

(b) In addition to fees provided by Subsection (a) of this article, a defendant required to pay fees under this article shall also pay 29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service

TEX. CODE OF CRIM. PROC ART. 102.011(a)(3) and (b).

A court cost statute is facially unconstitutional in violation of the separation of

powers clause of the Texas Constitution if the funds “were not directed by statute to

be used for a criminal justice purpose and, instead, went to the State’s general revenue

fund.” Hernandez, 2017 Tex. App. LEXIS 7612 at *19, citing Salinas v. State, 523

S.W.3d 103 (Tex. Crim. App. 2017). In Salinas v. State the Court of Criminal Appeals

found two court costs facially unconstitutional because they violated the separation of

powers clause and were actually taxes unrelated to criminal justice purposes:

39
One way the Separation of Powers provision is violated is “when one branch of government assumes or is delegated a power ‘more properly attached’ to another branch.” The courts are delegated a power more properly attached to the executive branch if a statute turns the courts into “tax gatherers,” but the collection of fees in criminal cases is a part of the judicial function “if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes.” What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis. And the answer to that question is determined by what the governing statute says about the intended use of the funds, not whether funds are actually used for a criminal justice purpose.

Salinas, 523 S.W.3d at 106-107.

The Court of Criminal Appeals in Salinas determined that the “abused

children’s counseling” fund was actually a tax because the money was merely placed in

the general revenue fund:

The result of these legislative actions is that, although the “abused children’s counseling” account originally funded a program for abused children’s counseling, the program to which the funds are directed no longer exists and the funds revert to the General Revenue Fund. We cannot uphold the constitutionality of funding this account through court costs on the basis of its name or its former use when all the funds in the account go to general revenue. Consequently, the allocation of funds to the “abused children’s counseling” account does not currently qualify as an allocation of funds “to be expended for legitimate criminal justice purposes.” To the extent that § 133.102 allocates funds to the “abused children’s counseling” account, it is facially unconstitutional in violation of the Separation of Powers provision of the Texas Constitution.

Salinas, 523 S.W.3d at 110.

B. Preservation of Error

The Court of Criminal Appeals has explained that challenges to court costs can be raised for the first time on appeal and “[c]onvicted defendants have constructive notice of mandatory court costs set by statute and the opportunity to object to the assessment of court costs against them for the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal Procedure.” Cardenas, 423 S.W.3d at 399. In a companion case decided the same day, Johnson v. State, the Court further explained that because the cost bill is most likely unavailable at the time of the judgment, an “Appellant need not have objected at trial to raise a claim challenging the bases of assessed costs on appeal.” Johnson, 423 S.W.3d at 390-391.
C. Analysis

In the present case, Appellant was ordered to pay court costs totaling $299 including the $15 “Summoning Witness/Mileage” cost. (C.R. at 170). 9 The 83rd Legislature mandated that the State Office of Court Administration prepare a report on court costs. Tex. S.B. 1908, 83d Leg., R.S. (2013). The report was prepared and is available on the website for the Office of Court Administration – Study of the Necessity of Certain Court Costs and Fees in Texas As Directed by Senate Bill 1908, 83rd Legislature September 1, 2014.10 A review of the comprehensive report details

9 The summoning witness/mileage fee was only assessed in Appellant’s convictions for manslaughter and endangering a child. (C.R. (1493128) at 170; C.R. (1500417) at 179; C.R. (1500418) at 160). Thus, Appellant challenges the fee for summoning witness/mileage separately.

10 http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf

that the fees for summoning witnesses “goes to the General Fund of the County or

City.” See Texas Office of Court Administration, Study of the Necessity of Certain

Court Coasts and Fees in Texas, September 21, 2014, at page 12 of 64 in the Criminal

Court Cost section (or page 102 of the PDF) – Fee No. 26. “Money in a county’s

general fund can be spent for ‘any proper county purpose.’” Hernandez, 2017 Tex.

App. LEXIS 7612 at *19, quoting TEX. ATT’Y GEN. OP. No. JM-530, 1986 Tex. AG

LEXIS 73 (1986). The Attorney General’s office has also stated that “court fees that

are used for general purposes are characterized as taxes.” TEX. ATT’Y GEN. OP. No.

JC-0158 (1999).

In Allen v. State, this Court examined the summoning witness/mileage fee:

article 102.011(a)(3) and (b) require a defendant convicted of a felony or misdemeanor to pay fees for certain services performed . . . by a peace officer, including $5 for summoning [each] witness and 29 cents per mile for mileage required of an officer to perform [the] service . . . and to return from performing that service, [t]he statute does not [actually] state where the [funds received from the] fee [are] to be directed.

Instead, the Office of Court Administration’s website shows that, in regard to article 102.011(a)(3) and (b), “100% of the money” collected from the “Summoning Witness/Mileage” fee, including appellant’s money, remains “with the county or city which the [c]ourt serves” and is directed to that county’s or city’s General Fund. Further, the Office of Court Administration’s website explains that if a “peace officer” is employed by the State then “the [c]ity or [c]ounty,” which the court serves, “keeps 80% of the [“Summoning Witness/Mileage”] fee,” which is then “direct[ed] . . . to the [c]ounty’s (or [c]ity’s) General Fund,” while “[t]he [remaining] 20% of the money [collected from the “Summoning Witness/Mileage” fee] is sent to the State for deposit in the State’s General Revenue Fund.” And because the funds received from the “Summoning Witness/Mileage” fee are “directed to the General Fund

(at both the State and local level),” they “need not be spent only on law enforcement [purposes].

Allen v. State, No. 01-16-00768-CR, 2017 Tex. App. LEXIS 11015 *22-23 (Tex. App.—Houston [1st Dist.] November 28, 2017, no pet. h.) (designated for publication) (internal citations omitted).

Thus, this Court determined that “article 102.011(a)(3) and (b) are facially unconstitutional as they allocate[] [the] funds received from the Summoning Witness/Mileage fee to the general revenue fund of either the county or the State and allow such money to be spent “for purposes other than legitimate criminal justice purposes in violation of the [S]eparation of [P]owers [clause] of the Texas Constitution.” Allen, 2017 Tex. App. LEXIS 11015 *26. The same is true here. Because this money is a tax placed in the general revenue fund of the city, county, and State, this fee is unconstitutional in violation of the Separation of Powers provision of the Texas Constitution. Appellant requests this court delete the $15 unconstitutional court cost for summoning witnesses/mileage from Appellant’s bill of costs. See TEX. R. APP. P. 43.2(b).

PRAYER

Appellant, Gustavo Aybar, prays that this Court reverse the trial court’s

judgment and render a judgment of acquittal. Alternatively, Appellant prays that this

Court modify Appellant’s judgment and delete court costs totaling $279.00 and also

prays that the $15 fee for summoning/witnesses be declared unconstitutional and be

deleted from the bill of costs. Appellant also prays for such other relief that this Court

may deem appropriate.

Respectfully submitted,

Alexander Bunin
Chief Public Defender
Harris County Texas

/s/ Nicholas Mensch

CERTIFICATE OF SERVICE

I certify that a copy of this brief was e-served to the Appellate Division, Harris County District Attorney located at 1201 Franklin, 6th Floor, Houston, TX 77002 on May 2, 2018.
/s/ Nicholas Mensch
Nicholas Mensch
Assistant Public Defender

CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, I certify that this computer-generated document complies with the typeface requirements of Rule 9.4(e). This document also complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4(i) because this brief contains 12,115 words (excluding the items exempted in Rule 9.4(i)(1)).

/s/ Nicholas Mensch
Nicholas Mensch
Assistant Public Defender

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GUSTAVO AYBAR v. THE STATE OF TEXAS appellants brief