Opinion issued July 17, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00822-CR
JAMES CLAY FOX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 895641
MEMORANDUM OPINION
A jury found appellant, James Clay Fox, Jr., guilty of aggravated sexual assault of a child and assessed his punishment at 20 years' imprisonment. In six points of error, appellant contends that the evidence was legally and factually insufficient to sustain his conviction, the trial court erred when it admitted hearsay testimony, he was denied effective assistance of counsel because his trial counsel failed to object to improper victim-impact testimony and because of the cumulative effect of his trial counsel's errors, and the trial court erred when it admitted evidence of extraneous offenses to impeach the testimony of appellant in the punishment stage. We affirm.
Background
Appellant is an acquaintance of Melissa Rundle, who is the mother of complainant, a nine-year old girl. Appellant was also a friend of Rundle's brother, who died.
At trial, Rundle testified that, shorrtly after her brother's death, she and appellant became friends. Rundle received a call from appellant at approximately 3:00 p.m. one Friday afternoon. Rundle worked at Continental Airlines and lived near the airport, and appellant, who lived out of town, was on a layover in Houston. Rundle invited appellant to spend his layover at her home that evening, intending to return him to the airport later that evening for his flight. After picking appellant up at the airport, Rundle and appellant went to her home. On the way from the airport to the Rundle home, appellant asked Rundle to change his flight so that he could fly out the next morning. Rundle agreed to change appellant's flight to the next day and agreed that appellant could stay at her home for the night.
At the Rundle home, appellant placed his belongings in the guest room. While appellant was in the guestroom, Rundle asked the complainant to go to her bedroom to pull her hair back. The complainant later told Rundle that appellant had commented to her, while she was pulling her hair back, that he "liked it that way." Although she was "bothered" when the complainant related appellant's comment, Rundle did not mention it to appellant at the time.
Appellant, Rundle, and the complainant went to a liquor store to purchase liquor for a party that Rundle had planned for that evening. At the party that evening, Rundle, her husband, and appellant consumed alcohol. When Rundle woke up the next morning, the complainant, not her husband, was in bed with her. Rundle went into the complainant's room and found her husband sleeping. Rundle asked her husband why he and the complainant had changed places during the night. Rundle's husband replied that the complainant had awakened him during the night and told him that she was scared. He told the complainant to sleep with Rundle and he went to sleep in her bed. Rundle stated that, while it was not unheard of for the complainant to want to sleep with her parents, it was not the child's normal behavior. Rundle took appellant to the airport at 6:00 a.m. and she then worked at the airport until 12:00 p.m.
While Rundle was at work that Saturday morning, she spoke with the complainant on the phone about why the complainant had been sleeping in Rundle's bed instead of her own. Rundle stated that the complainant's answer, that she had been scared, bothered her because the complainant had stated earlier that she hadn't had a nightmare that night. When Rundle returned home from work later that afternoon, she spoke to the complainant again about the previous evening.
At this point in Rundle's testimony, appellant objected that Rundle's and the complainant's conversation about the events of the previous evening was hearsay and was inadmissible because the State did not notify appellant of its intention to introduce the complainant's outcry statements. After conferring with Rundle for a moment, the State instead asked:
[State:] Mrs. Rundle, based on your conversation with [the complainant] that afternoon, did you have reason to suspect that [appellant] . . . had abused your daughter?
[Rundle:] Yes, I did.
Appellant objected that the State's question introduced "backdoor hearsay." The trial court overruled appellant's objection. Shortly after this exchange, the State again questioned Rundle about the complainant's statement:
[State:] Through the course of your discussion, did you determine where this event had taken place?
[Appellant:] Your Honor, again, I object. This is backdoor hearsay.
[Rundle:] In her bedroom.
The trial court sustained appellant's objection and instructed Rundle to wait for a ruling rather than answer a question that had been objected to. Rundle then testified that she called the police after speaking with the complainant, and that a female police officer came to interview Rundle and the complainant.
Rundle further testified that, since the assault, the complainant has had nightmares and Rundle has found the complainant crying in her room. Rundle also testified that the complainant had expressed a desire to redecorate her room, and that she had expressed a fear of adult men.
The complainant testified that, when she went to the liquor store with her mother and appellant, appellant asked her whether she wanted a piggyback ride. The complainant was wearing shorts and appellant reached up her shorts and put his fingers into her vagina during the course of this piggyback ride in the store. The complainant did not tell anyone about appellant touching her vagina.
Later that evening, after the party, the complainant took a shower and put on her pajamas before going to bed. Appellant had, earlier that evening, asked her to come to his bedroom. When the complainant got out of the shower, she combed her hair in front of the mirror while she was wrapped in a towel. Appellant then came into the bathroom and used the toilet in an adjoining bathroom. Appellant sat on the toilet and, through the partially open door, asked the complainant whether she intended to come into his room before she went to sleep. The complainant told him she would. Moments later, while she was putting on her pajamas, appellant again returned. The complainant had only a towel wrapped around her waist, and no shirt on. The complaint testified that, despite her embarrassment, appellant hugged her and then left the bathroom.
When the complainant went into appellant's bedroom to tell him goodnight, he kissed her on the lips. The complainant then went to her room and fell asleep. She woke up to find her pajama bottoms had been pulled down and appellant was putting his fingers into her vagina. The street lights, shining through the window, provided enough light so that she could see appellant's face. Appellant asked her whether she wanted him to stop and she said yes. Appellant then said he was going to do something to her that was going to "feel good" and put his mouth on her vagina. The complainant testified that she was scared and did not do anything except cry. Appellant then asked her if she was all right, and stroked her hair. When appellant left the room, the complainant went to the bathroom and then into her parents room.
Appellant was gone the next morning when the complainant woke up. When Rundle got home from work, the complainant told Rundle that appellant had assaulted her in her bedroom the previous evening. The complainant also told Rundle about the piggyback ride the day before and that appellant had put his fingers into her vagina. During her testimony, the complainant was unclear about whether she told her mother about the piggyback ride the day after it happened or several days later. The complainant testified that she thought that, although Rundle knew appellant was giving her a piggyback ride at the liquor store, Rundle did not know that appellant was assaulting her at the same time. Appellant did not object to the complainant's testimony regarding her conversation with her mother.
Harris County Sheriff's Deputy Darlene Thomas testified that she was sent to the Rundle house to investigate the report of sexual assault, and she spent 10 to 15 minutes at the home interviewing Rundle and the complainant. Thomas noted that Rundle appeared shaken and upset when she opened the door, and Rundle's eyes were red and watery, as if she had been crying. Thomas also noted that the complainant appeared anxious, upset, and nervous. The complainant appeared embarrassed when telling Thomas what appellant had done. Thomas instructed Rundle and the complainant to go to the Children's Assessment Center for a sexual assault evaluation. Thomas did look into the complainant's bedroom and she stated that she did not visually observe any semen stains on the bedclothes. In her testimony, Thomas admitted that it might have been helpful to the investigation to know whether any DNA evidence could have been collected from the bedclothes.
However, Thomas also stated that, based on the complainant's description of events, Thomas believed more evidence could be collected from a physical examination of the complainant at the Children's Assessment Center than from the complainant's bedroom. Thomas testified that, while it was possible that saliva might have been found on the complainant's bed, the bed was not tested because, from the complainant's description of the assault, Thomas did not think that the complainant's body had been lying directly on the bed when appellant assaulted her.
Harris County Sheriff's Detective Donald Wine testified that he investigated the assault and that, as part of his investigation, he watched as the complainant was interviewed at the Children's Assessment Center. Wine testified that the complainant's statement, made in another room while he watched the interview on a television monitor, was clear, concise and specific. Wine found the evidence in the investigation to be consistent and, based on the evidence he collected from the complainant's interview, he determined that charges should be filed against appellant. Harris County Medical Examiner Lisa Gerides testified that the DNA testing was performed on evidence gathered during the sexual assault evaluation of the complainant at the Children's Assessment Center. Swabs taken from the complainant's vaginal area tested positive for amylase and blood, swabs taken of secretions found on the complainant tested positive for amylase, and the complainant's panties tested positive for amylase. Gerides explained that amylase is a protein found in the human body and present, in different forms, in all bodily fluids except blood. Gerides stated that, while the presence of the enzyme amylase on a surface is presumed to indicate that saliva is present, she was not able to tell from a positive amylase test whether the enzyme detected was in fact from saliva or whether it came from some other bodily fluid. Gerides stated that the positive result could have been caused by the complainant's own bodily secretions and, without further testing, it was not possible to tell whether the amylase was from appellant's saliva.
Dr. Shannon Hayes, a physician at Texas Children's Hospital, testified that she conducted an examination of the complainant and assembled a sexual assault kit during that examination. The medical records made by Dr. Hayes and others at Texas Children's Hospital were admitted into evidence. Appellant objected to the admission of the records on the grounds that the reports contained hearsay and should have been redacted before admission. The trial court overruled appellant's objection.
Dr. Hayes conducted a visual examination of the complainant, looked for any hairs on the complainant's pubic area, and collected swabs of fluid from the complainant's skin and vaginal area. Dr. Hayes stated that, although the complainant's exam was normal for the most part, she did observe that there was some bruising in the complainant's vaginal area. Dr. Hayes stated that such bruising was possibly consistent with an oral sexual assault. Dr. Hayes stated that the complainant's hymen was intact, and that this finding probably meant that the complainant's vagina had not been penetrated. Dr. Hayes admitted that she was unable to tell how old the bruising was or what had caused it, but she stated that blood found in a vaginal swab indicated that some trauma had occurred.
During the punishment stage, both Rundle and her husband testified about the impact the assault had on the complainant and their family. Rundle testified that the complainant had told her, "My life is ruined." Rundle also testifed that the complainant was occasionally sad, but that for the most part, she had seemed resilient. Rundle herself had become less trusting of friends and family and wanted appellant to "pay the price for what he did." At the punishment phase of trial, Rundle testified, in part, as follows:
[Rundle:] . . . And what I want for him to do is to pay the penalty. And I don't want him to hurt any other children. What has been done has been done to [the complainant] and we will deal with that, but it's going to stop here . . . .
[State:] Do you think he should get probation for this?
[Rundle:] No. Absolutely not.
[State:] Do you think he should go to prison for this?
[Rundle:] I absolutely believe he should go to prison. The penalty for this is imprisonment. You chose to do this, you're not sick, your behavior is sick, and you are going to pay for it.
Appellant raised no objection to Rundle's testimony.
Appellant also testified during the punishment stage. Appellant stated that he had never been convicted of a felony or placed on probation, he described his education, and he stated that he served in the Marine Corps for six years. Appellant also stated that he had been honorably discharged.
On cross-examination, the prosecutor asked appellant whether he had ever "had any trouble" while serving in the Marines. Appellant's trial counsel objected, and, in a bench conference, appellant's trial counsel informed the trial court that the basis for the objection was that he believed the State was attempting to introduce an extraneous offense of which appellant had not been notified. The prosecutor explained to the trial court that she had military records indicating that appellant had not been honorably discharged from the Marine Corps, and that she was responding to appellant's testimony that he had been. The trial court overruled appellant's objection.
Appellant then testified that, although he had been on unauthorized leave while stationed in the Philippines, he had in fact been honorably discharged. The prosecution then handed appellant some military records to refresh his memory. (1) The State contended that the military records indicated that appellant had a problem with alcohol, had been charged with possession of narcotics, had been listed as a deserter and that he had "request[ed] separation with other than honorable conditions." Appellant denied each of the assertions, testifying that the supposed narcotics were in fact tea leaves and malaria pills, that he had never been charged with possession of narcotics, that he had never been charged with being a deserter while in the Marines, and, although military records indicated that he had been arrested by military police, he had actually turned himself in at his base at the end of his unauthorized leave.
Legal and Factual Sufficiency
In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. In evaluating legal and factual sufficiency, we follow the usual standards of review. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (legal); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual).
Appellant argues that the evidence presented was insufficient to support his conviction because the police investigation and forensic testing performed did not conclusively establish that the complainant had been assaulted, nor was it established that he was the person who had assaulted her. Appellant points to the amylase testing, which could not conclusively ascertain whether the amylase detected was from saliva, and to the lack of DNA testing performed as failures by the State to present sufficient evidence to support his conviction.
Appellant also argues that conflicts in the testimony of Rundle and the complainant made their testimony "unreliable" and insufficient to support his conviction. Appellant points to Rundle's testimony that, although appellant's comment to the complainant about her hair bothered Rundle, she did not mention it to the police the next day. Nor, as appellant points out, did Rundle mention the piggyback ride that the complainant testified her mother witnessed. Appellant also highlights what he refers to as other "inconsistencies" in Rundle's testimony, including whether it was normal for the complainant to want to sleep with her parents. Additionally, the complainant's own testimony, according to appellant, was "riddled" with inconsistencies, rendering her account of the events that evening unreliable. She initially stated that she accompanied her mother to pick up appellant at the airport but later stated that she did not. Further, the complainant could not recall whether she told Rundle that appellant had assaulted her during the piggyback ride at the liquor store. Appellant argues that, because Rundle did not mention the piggyback ride during her own testimony, the complainant's testimony is the only evidence that the piggyback ride and accompanying assault occurred. Finally, appellant argues that the complainant apparently did not mention to Rundle appellant's inappropriate behavior in the bathroom that evening, despite her testimony that she spoke to her parents before going to bed. Appellant argues that, in light of the inconsistencies accompanying the complainant's testimony, a reasonable inference exists that the complainant fabricated the piggyback ride and the accompanying assault. Appellant therefore argues that the complainant's credibility regarding the entire chain of events is questionable.
It is the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Cobb v. State, 93 S.W.3d 1, 4 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111. The jury may accept or reject any evidence presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Here, the jury apparently chose to believe the complainant. The complainant stated that she clearly saw appellant through the light coming into her bedroom window, and that it was appellant who sexually assaulted her that evening. The complainant described the assault in detail and her account is corroborated to some degree by both the results of her medical examination and her mother's testimony about her demeanor after the assault.
This evidence, when viewed in the light most favorable to the verdict, was sufficient to allow a rational jury to have found appellant guilty of the offense beyond a reasonable doubt. Wesbrook, 29 S.W.3d at 111. Further, after reviewing all the evidence, both for and against the verdict, the proof of appellant's guilt is not so obviously weak as to undermine confidence in the jury's determination, nor is the proof of guilt, although adequate if taken alone, greatly outweighed by contrary proof. King v. State, 29 S.W.3d at 563. We overrule appellant's first and second points of error.
Inadmissible Hearsay
In his third point of error, appellant complains that the trial court erred when it allowed Rundle to testify about the conclusions she drew as a result of her conversation with the complainant. Appellant argues that this testimony was inadmissible hearsay. We review a trial court's ruling on the admission of evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).
"Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). An exception to the general prohibition on hearsay allows the introduction of the out-of-court statement by a child abuse victim to the first adult person describing an alleged offense. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). Under article 38.072, a hearsay statement is admissible if (1) the State provides timely notice to the defendant of its intention to introduce an outcry statement, (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement, and (3) the child testifies or is available to testify at trial. Id. at § 2(b)(1-3).
Here, however, the State did not attempt to introduce Rundle's testimony in the form of an outcry witness. Instead, the State asked Rundle whether, based on her conversation with her daughter, Rundle herself believed that appellant had assaulted the complainant. Appellant contends that this amounted to attempting to admit the complainant's initial outcry statement to her mother as backdoor hearsay evidence. The Court of Criminal Appeals has stated that, even if an out-of-court statement itself is not introduced, the hearsay rule may apply if testimony allows the jury to ascertain the purport of the statement. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Appellant argues that, under the rule articulated in Schaffer, the trial court erred in allowing Rundle to testify that she had reason to believe appellant assaulted the complainant.
However, it is well settled that the admission of hearsay evidence does not constitute reversible error if the same facts were proven by evidence introduced elsewhere without objection. See Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1980). If the fact to which the hearsay relates is sufficiently proven by other competent and unobjected-to evidence, admission of the hearsay is properly deemed harmless. Livingston v. State, 739 S.W.2d 311, 333 (Tex. Crim. App. 1987). At trial, the complainant herself testified about her conversation with Rundle that afternoon. In her testimony, the complainant gave an account of the details she told Rundle about the assault. Appellant raised no objection to the complainant's testimony about her conversation with Rundle. Thus, any possible error resulting from the trial court's overruling appellant's objection to Rundle's testimony was harmless. Accordingly, we overrule appellant's third point of error.
Ineffective Assistance of Counsel
In his fourth and fifth points of error, appellant argues that he received ineffective assistance from his trial counsel because his trial counsel failed to object to victim-impact testimony in the guilt stage as well as in the punishment stage of trial, and other errors cumulatively rendered his trial counsel's performance ineffective.
When reviewing whether an appellant was denied his right to effective assistance of counsel, we apply the usual standard of review. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the two-prong Strickland standard, a defendant must "first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness," and then, "assuming appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice." Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
In evaluating the effectiveness of counsel under the first prong of Strickland, the totality of the representation and the particular circumstances of each case are reviewed. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. 466 U.S. at 690, 104 S. Ct. at 2066. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. Scrutiny of counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Id., 104 S. Ct. at 2065. Accordingly, the presumption that an attorney's actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999). However, an exception to the presumption of strategy exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Id.
If counsel's performance fell below the objective standard of reasonableness set forth in the first prong of Strickland, the reviewing court must then decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. 2052.
Appellant argues that his trial counsel failed to properly object to the admission of victim-impact evidence contained in the records from Texas Children's Hospital admitted during Dr. Hayes' testimony at the guilt/innocence stage, and that the records bolstered the testimony of the complainant's parents during the punishment stage. Additionally, appellant complains that his trial counsel failed to object to Rundle's statement in the punishment stage that appellant should be incarcerated, and that this failure harmed appellant by improperly influencing the jury to choose confinement over probation. Finally, appellant asserts that his trial counsel's performance, in the totality of his representation, was so deficient that it cannot be considered effective assistance of counsel under Strickland.
We first turn to appellant's contention that his trial counsel failed to properly object to victim-impact testimony contained in the medical records introduced at the guilt/innocence stage of his trial. Appellant's trial counsel unsuccessfully objected to the introduction of the records on the grounds that the records contained inadmissible hearsay.
Although victim-impact testimony may be admissible during the punishment stage if it "has some bearing on the defendant's personal responsibility and moral guilt," Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991), such evidence has been held irrelevant and inadmissible during the guilt/innocence stage. Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990). However, without addressing whether trial counsel's failure to object to such evidence was deficient, we note that other unobjected-to evidence of the complainant's parents' distress was admitted elsewhere during the guilt/innocence stage. On appeal, appellant does not question the propriety of that evidence. As a result, the statements contained in the records were merely cumulative. Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and proves the same fact that the inadmissible evidence sought to prove. Brown v. State, 757 S.W.2d 739, 741 (Tex. Crim. App. 1988). Accordingly, appellant has failed to establish that it is a "reasonable probability" the result of the trial would have been different if his trial counsel had objected to the admission of the hospital records. Strickland, 466 U.S. at 694, 104 S. Ct. 2052.
In regard to appellant's complaint that his trial counsel failed to object to Rundle's punishment stage testimony that appellant should be incarcerated, we note that a witness may not recommend to the trier of fact a particular punishment. See Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989). As before, however, regardless of whether appellant's trial counsel was deficient for failing to object to Rundle's statement, appellant cannot surmount the burden of Strickland's second prong--that there is a "reasonable probability" the result of the trial would have been different if he had objected to Rundle's testimony. Strickland, 466 U.S. at 694, 104 S. Ct. 2052. During the punishment stage, the trial court instructed the jury that, if it assessed a punishment that did not exceed ten years' imprisonment and found that appellant had never been convicted of a felony, then it had the option of recommending probation. The jury assessed appellant's punishment at twenty years' incarceration, rendering him ineligible for a recommendation of probation. Thus, we cannot say that our confidence in the outcome of appellant's trial is undermined. We overrule appellant's fourth and fifth points of error.
Extraneous-Offense Evidence
In his sixth point of error, appellant contends that the trial court committed reversible error when it allowed the State to impeach his testimony that he had been honorably discharged from the Marines. A trial court's admission of extraneous- offense evidence is reviewed for abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g).
Appellant argues that the evidence introduced violated the trial court's discovery orders, in which the trial court ordered the State to turn over all records of conviction which might be admissible in evidence or used for impeachment, and which granted appellant's request for notice of the State's intent to use evidence of any prior conviction to impeach appellant's credibility. Appellant contends that the State failed to produce evidence of appellant's extraneous offenses, and the trial court's decision to allow the State to impeach appellant with evidence of his extraneous offenses, despite the discovery order, harmed him by denying him an opportunity to prepare a response to the prosecution's accusations.
No notice of extraneous offenses is needed if the extraneous offense is introduced as impeachment evidence to contradict statements made by a defendant
during the punishment stage. See Washington v. State, 943 S.W.2d 501, 506 (Tex. App.--Fort Worth 1997, pet. ref'd). Accordingly, the trial court did not err in admitting this evidence of appellant's extraneous offenses or prior bad acts. We overrule appellant's sixth point of error.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).
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