NOS. PD-0891-16, 0892-16,
0892-16 0893-16

IN THE
COURT OF CRIMINAL APPEALS
---------------------------------------------------------------------------------------------------EX PARTE WARREN KENNETH PAXTON, JR., APPELLANT
-----------------------------------------------------------------------------------------------------ON APPEAL FROM THE 416TH JUDICIAL DISTRICT COURT
OF COLLIN COUNTY, TEXAS
AND ON DISCRETIONARY REVIEW
FROM THE FIFTH JUDICIAL DISTRICT AT DALLAS
------------------------------------------------------------------------------------------------------STATE’S REPLY TO
APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
-----------------------------------------------------------------------------------------------------BRIAN W. WICE
Bar No. 21417800
440 Louisiana Suite 900
Houston, Texas 77002-1635
(713) 524-9922 PHONE
(713) 236-7768 FAX
LEAD COUNSEL
wicelaw@att.net

KENT SCHAFFER
Bar No. 17724300
NICOLE DEBORDE
Bar No. 00787344
712 Main Suite 2400
Houston, Texas 77002
(713) 228-8500 PHONE
(713) 228-0034 FAX

COLLIN COUNTY CRIMINAL DISTRICT ATTORNEYS PRO TEM
THE STATE OF TEXAS

 IDENTIFICATION OF THE PARTIES
Pursuant to TEX.R.APP.P. 38.1(a), this list of all interested parties
is provided so the Court’s members can determine if they are disqualified
to serve or should recuse themselves from participating in this matter:
Complainants:
Failure to Register as an Investment Advisor: The State of Texas
Securities Fraud: Byron Cook & Joel Hochberg
Appellant-Defendant:
Warren Kenneth Paxton, Jr.
Counsel for the State:
Collin County Criminal District Attorney Pro Tem Brian Wice
Collin County Criminal District Attorney Pro Tem Kent Schaffer
Collin County Criminal District Attorney Pro Tem Nicole DeBorde
Counsel for Appellant:
Dan Cogdell: co-lead counsel
Philip Hilder: co-lead counsel
Bill Mateja
Terri Moore
Heather Barbieri
Trial Judge:
Honorable George Gallagher
Assigned Judge
th
416 Judicial District Court
Collin County, Texas

ii

 TABLE OF CONTENTS
PAGE
IDENTIFICATION OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 1
STATE’S REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Appellant’s Petitions For Discretionary Review In
Cause Nos. 0892-16 & 0893-16 Are Untimely Filed . . . . . . . . 2
B. State’s Reply to Issues 1 & 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. State’s Reply to Issue 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. State’s Reply to Issue 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
E. State’s Reply to Issue 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

 INDEX OF AUTHORITIES
PAGE
CASES:
CASES
Armstrong v. State, 805 S.W.2d 791 (Tex.Crim.App. 1991) . . . . . . . . . 9
Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Douglas Oil Co. v. State, 81 S.W.2d 1064
(Tex.Civ.App. – Austin 1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App. 1970) . . . . . . . . . . . . 7
Ex parte Paxton, ___ S.W.3d ___, 2016 WL 3086093
(Tex.App.– Dallas June 1, 2016, pet. filed)(en banc) . . . . . . . . . passim
Ex parte Perry, 483 S.W.3d 884 (Tex.Crim.App. 2016) . . . . . . . . . . . 4,5
Ex parte Perry, 471 S.W.3d 63 (Tex.App.– Austin 2015, pet. grt’d),
aff’d in part & rev’d in part, 483 S.W.3d 884 (Tex.Crim.App. 2016) . 5
Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App. 1974) . . . . . . . 4,5
Ex parte Wiese, 55 S.W.3d 617 (Tex.Crim.App. 2011) . . . . . . . . . . . . 6,9
In re Certain Underwriters at Lloyds, 18 S.W.2d 867
(Tex.App.– Beaumont 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Martinez v. State, 114 S.W.2d 875 (Tex.Crim.App. 1938) . . . . . . . . . 7,8
Robinson v. State, 466 S.W.3d 166 (Tex.Crim.App. 2015) . . . . . . . . . . . 8
Sims v. State, 99 S.W.3d 600 (Tex.Crim.App. 2003) . . . . . . . . . . . . . . 16
Woolen v. State, 150 S.W. 1165 (Tex.Crim.App. 1912) . . . . . . . . . . . . . 8
iv

 TEXAS RULES OF APPELLATE PROCEDURE:
PROCEDURE
Rule 66.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rule 66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rule 66.3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rule 68.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 68.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 68.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEXAS STATE SECURITIES ACT:
ACT
Section 29(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 29(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,8,10,11

MISCELLANEOUS:
MISCELLANEOUS
Dix & Schmolesky, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND
PROCEDURE, § 35:19 (“Pretrial Habeas Corpus”)(3rd ed. 2011) . . . . . . . 5

v

 STATEMENT REGARDING ORAL ARGUMENT
If this Court grants discretionary review, the State welcomes the
chance to defend the en banc court of appeals’ decision at oral argument.
STATEMENT OF THE CASE
The State does not take issue with appellant’s recitation.1
STATEMENT OF THE PROCEDURAL HISTORY
On June 1, 2016, the en banc court of appeals unanimously2 affirmed
the trial court’s judgments3 denying appellant’s request for pre-trial
habeas corpus relief. Ex parte Paxton, ___ S.W.3d ___, 2016 WL 3086093
(Tex.App. – Dallas June 1, 2016, pet. filed)(en banc). On June 15, 2016,
appellant filed a motion for rehearing that did not challenge the decision
of the court of appeals in cause numbers 05-16-0005-CR and 05-16-0006CR, but only challenged the court’s decision in cause number 05-16-0004CR. Appellant’s motion for rehearing was denied on June 30, 2016.
1

The State challenges all of appellant’s factual assertions in his petition for discretionary
review, (hereinafter “Pet.”), and adopts by reference the factual statement in the court of appeals’
en banc opinion, the State’s brief, and its pre-submission letter brief in the court of appeals. This
reply is timely if filed on or before August 17, 2016. See Tex. R. App. P. 68.9.
2

Justice Fillmore and Justice Schenck filed concurring opinions.

3

COA No. 05-16-0004-CR/PD-0891-16 (Failure to Register as an Investment Advisor
Representative); COA No. 05-16-0005-CR/PD-0892-16 (Securities Fraud); COA No. 05-16-0006CR/PD-0893-16 (Securities Fraud).
1

 STATE’S REPLY

A. Appellant’s Petitions in Nos. 0892-16 & 0893-16 are Untimely Filed
The court of appeals docketed appellant’s pre-trial appeals as three
separate cause numbers:
C

05-16-0004-CR (Failure to Register as an Investment Advisor
Representative)(Texas Securities Act, § 29(I)).

C

05-16-0005-CR (Securities Fraud)(Texas Securities Act, § 29(C)).

C

05-16-0006-CR (Securities Fraud)(Texas Securities Act, § 29(C)).
On January 11, 2016, appellant filed a motion to consolidate all

three appeals under a separate cause number and “to dispose of the
consolidated appeal with one judgment, opinion, and mandate.”
On January 12, 2016, the court of appeals denied appellant’s motion
to consolidate. The court of appeals concluded that all three of appellant’s
cause numbers “will remain separate appeals ... submitted as companion
cases.”
On June 1, 2016, the en banc court of appeals unanimously affirmed
the trial court’s judgments denying appellant’s request for pre-trial habeas
corpus relief in each cause number. Ex parte Paxton, ___ S.W.3d ___,
2016 WL 3086093 (Tex.App. – Dallas June 1, 2016, pet. filed)(en banc).
2

 On June 15, 2016, appellant filed a single motion for rehearing in all
three cause numbers. However, by only challenging the court’s decision
in cause number 05-16-0004-CR, and because 05-16-0005-CR and 05-160006-CR were not consolidated with 05-16-0004-CR, the judgments in
cause numbers 05-16-0005-CR and 05-16-0006-CR became final on July
17, 2016. In effect, the court of appeals denied appellant’s motions for
rehearing in cause numbers 05-16-0005-CR and 05-16-0006-CR that were
never actually advanced. A litigant should not be able to avoid or extend
deadlines by filing what amounts to phantom motions for rehearing.
Pursuant to Tex. R. App. P. 68.2(a), appellant had to seek review of
the court of appeals’ decisions in cause numbers 05-16-0005-CR and 05-160006-CR by July 1, 2016. Alternatively, he could have extended this due
date to July 18, 2016, pursuant to Tex. R. App. P. 68.2(c). He did neither.
It is axiomatic that, on discretionary review, this Court addresses
only the “decisions” of the courts of appeals. Gilley v. State, 418 S.W.3d
114, 119 (Tex.Crim.App. 2014)(“As a general proposition, this Court will
review only the ‘decisions’ of the courts of appeals.”). Because appellant’s
motion for rehearing in cause number 05-16-0004-CR did not challenge
the court of appeals’ “decisions” in cause numbers, 05-16-0005-CR and 053

 16-0006-CR, it failed to timely invoke this Court’s jurisdiction in the nonconsolidated companion causes. Because appellant failed to timely seek
discretionary review of the court of appeals’ “decisions” in cause numbers
05-16-0005-CR and 05-16-0006-CR, his petitions in cause numbers 089216 and 0893-16 must be dismissed as untimely filed.

B. State’s Reply to Issues 1 & 2
Appellant complains that he “has been charged with a crime that
does not exist” because the statute under which he has been charged for
acting as an investment advisor representative without being registered
to do so as required by the State Securities Act “is unconstitutionally
vague, and therefore, invalid, having been preempted by federal securities
laws.”4 Pet. 2. Appellant claims this issue is cognizable based on Ex parte

Psaroudis, 508 S.W.2d 390 (Tex.Crim.App. 1974), and Ex parte Perry, 483
S.W.3d 884 (Tex.Crim.App. 2016). His assertion is wholly without merit.
First, the en banc court of appeals correctly concluded that this first
issue was not cognizable on pretrial habeas:
4

On May 1, 2003, SB 1060 passed the Texas House on its third reading, making acting as
an investment advisor representative without being registered as required by the State Securities Act
a “criminal offense,” punishable as a third-degree felony. (CR 250-51). Appellant’s vagueness claim
is understandably undercut by the fact that he was one of 142 members who unanimously voted for
this bill, which became Sec. 29(I) of the State Securities Act. (CR 250).
4

 In light of the clear and recent pronouncements from the court
of criminal appeals detailing the limits of pretrial habeas
review, we conclude appellant’s first issue is not cognizable on
appeal of a pretrial writ because resolving it would require
that we construe the statute under which appellant is charged,
it would require us to resolve disputed factual controversies,
and it would require us to apply the statute to appellant’s
particular circumstances notwithstanding the existence of an
adequate remedy by appeal after trial.

Ex parte Paxton, ___ S.W.3d at ___, at *6.
Second, the court correctly held Psaroudis is distinguishable because
the facts regarding appellant’s claim that § 29(I) is preempted by federal
law are in dispute. Id. The court’s reasoning is also fortified by the tenet
that “Psaroudis ... would appear to be squarely inconsistent” with [this
Court’s precedent] because “some Court of Criminal Appeals cognizability
decisions from that earlier era ‘fail[ed] at the time to have fully embraced
the distinction [between] challenges to statutes on their faces and as
applied’ and would likely be decided differently by the high court today.”5
Third, the assertion, rightfully relegated to a footnote, that “the
rationale for resolving legal claims pre-trial discussed in Perry applies
equally to Paxton, the incumbent Texas Attorney General,” Pet. 5 n. 3,
5

Ex parte Perry, 471 S.W.3d 63, 84 (Tex.App.– Austin 2015), aff’d in part & rev’d in part,
483 S.W.3d 884 (Tex.Crim.App. 2016), citing Dix & Schmolesky, TEXAS PRACTICE SERIES:
CRIMINAL PRACTICE AND PROCEDURE, § 35:19 (“Pretrial Habeas Corpus”)(3rd ed. 2011).
5

 fails to recognize the obvious: “In contrast, appellant’s charges do not arise
out of his duties as an elected official but rather from his conduct as a
private citizen.” Id. Appellant’s first issue does not implicate any reasons
for discretionary review in Tex. R. App. P. 66.3 upon which he relies.6
Appellant’s second issue, erroneously conflating preemption with
unconstitutional vagueness, is similarly situated and fares no better. Pet.
7, 9. The court correctly applied Perry and Ex parte Wiese, 55 S.W.3d 617
(Tex.Crim.App. 2011), to reject the facial vagueness claim, declining to
“construe the various statutes at issue to determine which definition
applies to appellant’s case.” Ex parte Paxton, ___ S.W.3d at ___, at *7:
[A]ppellant cannot reach the issue of unconstitutional
vagueness without first obtaining a finding that the federal
definition of “investment advisor representative” preempts the
federal definition. ... Appellant requests a far-reaching and
exhaustive review of federal and state statutes and regulations
that exceeds our role as a court of review on a pretrial habeas
writ.

Id. at *6.
Nothing in appellant’s second issue embraces any of the reasons he
claims warrant discretionary review of this portion of the court of appeals’
6

Because appellant’s latest authority, unpublished decisions from the Fort Worth Court of
Appeals and Washington Court of Appeals, and the First Circuit, Pet. 4, 6, are not binding on this
Court, they cannot credibly form the basis for discretionary review pursuant to Rule 66.3(a) or (c).
6

 decision. Discretionary review, therefore, should be refused.

C. State’s Reply to Issue 3
Appellant’s third issue argues that this Court should review the
court of appeals’ decision that the grand jury that indicted him was
improperly selected and impaneled is not cognizable in a pretrial writ.
Pet. 9. Appellant repackages his claim that his indictment by “a grand
jury formed exclusively of ‘volunteers’ who were ‘willing to serve’ ...
render[ed] such grand jury void [sic].” Pet. 9. Assuming this issue is timely
presented, there are no compelling reasons to grant discretionary review.
First, the court of appeals correctly concluded that the one decision
appellant relies on, Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App.
1970), is distinguishable. Ex parte Paxton, ___ S.W.3d at ___, at *3.
Second, the court of appeals properly held the selection and impanelment
process “is not a complaint that would render the grand jury illegally
formed, i.e., void, and thus is not cognizable on pretrial habeas.” Id. at
___, at *4. Third, the court distinguished Martinez v. State, 114 S.W.2d
875, 875-77 (Tex.Crim.App. 1938), and Woolen v. State, 150 S.W. 1165,
1165 (Tex.Crim.App. 1912), the two cases appellant relied on to support
his claim. Pet. 11 n. 11. Fourth, the court of appeals correctly held the call
7

 for volunteers, “Regardless of the wording of appellant’s complaint, ...
relates to the district judge’s discretion to excuse any person summoned
for a ‘reasonable excuse.’” Ex parte Paxton, ___ S.W.3d at ___, at *4.
The court of appeals accurately determined that because appellant’s
complaint did not “relate to an intentional and arbitrary disregard” of “the
means and methods provided by the Legislature in the selection of grand
juries,” it is not cognizable on pretrial habeas. Id. Appellant’s assertion
that this Court must grant discretionary review to keep “judges across the
state [from] inflicting harm on countless others,” Pet. 12, finds no traction
in this record or support in any of the reasons set out in Rule 66.3.

D. State’s Reply to Issue 4
Appellant’s fourth issue claims that discretionary review should be
granted because, “The court of appeals rendered an advisory opinion
erroneously construing the mens rea applicable to § 581-29(I) of the Texas
Securities Act” that “unnecessarily ... misinterpreted” Robinson v. State,
466 S.W.3d 166 (Tex.Crim.App. 2015). Pet. 13. Appellant asserts, “It is
crucial that this error be corrected” because it “prejudices [him] at any
subsequent trial...” Pet. 13. Because this Court lacks authority to consider
this contention, discretionary review should be summarily refused.
8

 An advisory opinion “adjudicates nothing and is binding on no one.”

Douglas Oil Co. v. State, 81 S.W.2d 1064, 1077 (Tex.Civ.App. – Austin
1935). “It is well-established that this Court is without constitutional or
statutory authority to ... render advisory opinions.” Armstrong v. State,
805 S.W.2d 791, 794 (Tex.Crim.App. 1991). Because this portion of the
court of appeals’ decision is dicta7 with no force or effect, this Court is
without statutory or constitutional authority to consider this issue. Id.
Moreover, appellant’s claim that the court’s dicta “prejudices [him] at any
subsequent trial,” Pet. 13, is meritless. Whatever “prejudice” appellant
may suffer “at any subsequent trial” from the court of appeals’ advisory
opinion can be addressed on direct appeal. Ex parte Paxton, ___ S.W.3d
at ___, at *1, citing Ex parte Wiese, 55 S.W.3d at 619 (“Neither trial courts
nor appellate courts should entertain an application for writ of habeas
corpus when there is an adequate remedy at law.”). Because appellant’s
failure to admit he has an adequate remedy at law to vindicate this
claimed error derails his request for discretionary review, this Court

7

“Dictum is an observation or remark made concerning some rule, principle, or application
of law suggested in a particular case that is not necessary to the determination of the case” and “not
binding as precedent.” In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867, 870 (Tex.App.–
Beaumont, 2000)
9

 should summarily dismiss his forth issue.

E. State’s Reply to Issue 5
In his one-paragraph fifth issue, appellant avers the court of appeals
rejected his facial challenge to § 29(I) of the State Securities Act without
“apply[ing] the final three prongs of the Central Hudson8 test.” Pet. 16.
He asserts discretionary review is warranted because the court of appeals
“decided [his] First Amendment claim by converting it to an ‘overbreadth
doctrine’ argument never briefed by Paxton or the State” to “avoid the
result compelled by Central Hudson.” Pet. 16. (emphasis added). Because
this issue turns on his material misstatement that “neither side briefed
the overbreadth argument,” discretionary review should be refused.
Appellant’s fourth issue in the court of appeals contended: “FOURTH
APPLICATION FOR WRIT OF HABEAS CORPUS SHOULD HAVE BEEN GRANTED
BECAUSE THE STATUTE HE WAS CHARGED WITH IS FACIALLY
UNCONSTITUTIONAL BECAUSE IT IS OVERBROAD AND VAGUE.” Apt’s Brief
49. Appellant amplified this claim by arguing:
The statute he was charged with under the [State Securities
Act] for failing register [sic] as an investment adviser

8

Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
10

 representative with overbroad [sic] as it unconstitutionally
regulates free commercial speech and is so vague it fails to
give a person fair notice of what conduct is prohibited by the
statute and allows for arbitrary enforcement.

Id. (emphasis added). In Part B, appellant asserted, “S
Section 581-29(I) is
Void as Overboard [sic] as it Unconstitutionally Regulates Commercial
Free Speech Because it is not Reasonably Tailored or Proportional to the
Harm the State Seeks to Prevent.”
Id. at 51. He argued his “facial
Prevent
challenges are grounded in the doctrines of ‘overbreadth’ and ‘vagueness’”

id., and the “breath [sic] of conduct falling within the sweep of § 581-29(I)
illustrates why it fails Central Hudson’s second prong.” Id. at 58.
The State replied to appellant’s overbreadth claim, citing controlling
authority from the Supreme Court, this Court, and the courts of appeals
identifying the fatal flaws in his argument. State’s Brief 50-58. The State
argued, id. at 51 n. 43, and the court of appeals agreed, that because
appellant challenged § 28(I) as overbroad and vague, his overbreadth
challenge had to be addressed first. Ex parte Paxton, ___ S.W.3d at ___,
at *7. Indeed, the court of appeals noted, “In their briefs, the parties focus
their analysis on whether the test detailed in Central Hudson has been
met in determining whether the statute is facially overbroad.” Id.
11

 Viewed against this backdrop, appellant’s bold declaration that the
court of appeals “decided [his] First Amendment claim by converting it to
an ‘overbreadth doctrine’ argument never briefed by Paxton or the State,”
Pet. 16, is demonstrably false. Moreover, his avowal that the court of
appeals rejected his facial challenge to § 29(I) without “apply[ing] the final
three prongs of the Central Hudson test,” is also belied by the record. The
court of appeals correctly held that: (1) “the overbreadth doctrine does not
apply to commercial speech,” and (2) “the court in Central Hudson
disclaimed any intent to apply the overbreadth doctrine in its discussion
of the commercial speech at issue.” Ex parte Paxton, ___ S.W.3d at ___, at
*7. (citations omitted). Because the court of appeals told appellant why
his “number-one argument” argument was unavailing, see Sims v. State,
99 S.W.3d 600, 603 (Tex.Crim.App. 2003), his mere displeasure with the
outcome is not a compelling reason why discretionary review is in order.
PRAYER FOR RELIEF
The State prays that this Court dismiss appellant’s petitions for
discretionary review in cause numbers 0892-16 and 0893-16 as untimely
filed, or, in the alternative, refuse appellant’s petitions for discretionary
review.
12

 RESPECTFULLY SUBMITTED,
/s/ BRIAN W. WICE

_____________________________
BRIAN W. WICE
Bar No. 21417800
440 Louisiana Suite 900
Houston, Texas 77002
(713) 524-9922 PHONE
(713) 236-7768 FAX
LEAD COUNSEL
KENT A. SCHAFFER
Bar No. 17724300
712 Main Suite 2400
Houston, Texas 77002
(713) 228-8500 PHONE
(713) 228-0034 FAX
NICOLE DeBORDE
Bar No. 00787344
712 Main Suite 2400
Houston, Texas 77002
(713) 228-8500 PHONE
ATTORNEYS PRO TEM
THE STATE OF TEXAS
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5(d), I certify that this document was
served on all counsel of record via electronic filing on August 9, 2016.
/s/ BRIAN W. WICE
_______________________________
BRIAN W. WICE
13

 CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(1)(i)(1), I certify that this document
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D):
1. Exclusive of the exempted portions set out in Tex. R. App. P. 9.4(i)(1),
this document contains 2,359 words.
2. This document was prepared in proportionally spaced typeface using
Word Perfect 8.0 in Century 14 for text and Times New Roman 12 for
footnotes.
/s/ BRIAN W. WICE
_______________________________
BRIAN W. WICE

14