COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-070-CR
2-08-071-CR
2-08-072-CR
2-08-073-CR
2-08-074-CR
MARIO RICO MARTINEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant appeals five convictions under Texas Penal Code section
71.021 for violations of civil injunctions entered under the Texas “gang
1
… See Tex. R. App. P. 47.4.
injunction statute.” Tex. Civ. Prac. & Rem. Code Ann. § 125.065 (Vernon
2005). In four points, he argues that Texas Penal Code section 71.021 is
unconstitutionally overbroad and vague on its face; that Texas Civil Practice
and Remedies Code section 125.065(a)(2) violates the separation of powers
doctrine by allowing district judges to order reasonable restrictions to enforce
section 71.021; and that individual provisions of the injunction are
unconstitutionally vague and overbroad. We affirm.
II. Factual and Procedural Background
Appellant was charged by information in five separate cause numbers
with violations of two gang injunctions: a temporary injunction entered on
September 14, 2006, against twenty-one members of the Varrio Carnales (VC)
street gang and a permanent injunction entered against the same parties on
April 6, 2007, by the 89th District Court of Wichita County, Texas. The court
ordered the injunctions under section 125.065 of the civil and practice remedies
code. Tex. Civ. Prac. & Rem. Code Ann. § 125.065. This section provides
that a trial court can enter a temporary or permanent injunction against a
criminal street gang member based on the finding that gang activity is a public
nuisance. See id. Section 125.065 states,
(a) If the court finds that a combination or criminal street gang
constitutes a public nuisance, the court may enter an order:
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(1) enjoining a defendant in the suit from engaging in
the gang activities of the combination or gang; and
(2) imposing other reasonable requirements to prevent
the combination or gang from engaging in future gang
activities.
(b) If the court finds that a place is habitually used in a manner that
constitutes a public nuisance, the court may include in its order
reasonable requirements to prevent the use of the place for gang
activity.
Id.
The temporary and permanent injunctions outlined a safety zone
comprising 1.54 square miles called the “VC Safety Zone #1” (Safety Zone) in
an area of Wichita Falls known for its heavy gang activity. The injunctions at
issue prohibited 29 acts by Appellant while he was within the Safety Zone. 2
The lists included illegal acts, such as vandalism and possession of illegal drugs,
but also otherwise-legal activities, such as being seen in public with any other
member of the VC gang and wearing specific clothing denoting gang
membership.
On December 13, 2006, Wichita Falls police officers Foster and Sanchez
observed Appellant making hand gestures with his middle and ring fingers,
which they believed to be gang signs, a violation of provision 16 of the
2
… The temporary injunction prohibited 29 acts, but the permanent
injunction reduced the restrictions to 26 acts.
3
temporary injunction. On January 2, 2007, Officers Esteves and Saenz
observed Appellant riding as a passenger in a vehicle driven by another person
named in the temporary injunction, a violation of provision 2 of that injunction.
On February 20, 2007, Officer Smyth observed Appellant, within the Safety
Zone, sitting in a lawn chair on the property of a fellow VC gang member along
with two defendants named in the temporary injunction, a violation of
provisions 2 and 29 of that injunction. On April 25, 2007, Officers Esteves and
Saenz observed Appellant riding in a vehicle with other known gang members,
a violation of provision 2 of the permanent injunction. Finally, on September
6, 2007, Officers Hogan and Montana observed Appellant on the street wearing
clothes that identified him as a member of the VC gang, a violation of provision
15 of the permanent injunction. The officers arrested Appellant based on these
violations, and the State charged him by information, in all five cases, with
knowingly violating the injunction orders, a Class A misdemeanor under Texas
Penal Code Section 71.021. Section 71.021, entitled “Violation of Court Order
Enjoining Organized Criminal Activity,” states,
(a) A person commits an offense if the person knowingly violates
a temporary or permanent order issued under Section 125.065(a)
or (b), Civil Practice and Remedies Code.
(b) If conduct constituting an offense under this section also
constitutes an offense under another section of this code, the actor
may be prosecuted under either section or under both sections.
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(c) An offense under this section is a Class A misdemeanor.
Tex. Penal Code Ann. § 71.021 (Vernon 2008).
Appellant filed a pretrial motion to dismiss, arguing that Texas Penal Code
section 71.021, Texas Civil Practice and Remedies Code Section 125.065, and
the injunctive provisions are unconstitutional. The trial judge overruled the
motion. Appellant agreed to a plea bargain and pleaded guilty to all five
offenses, which resulted in a sentence of 305 days of confinement and a
$4,000 fine for each offense, punishment running concurrently. The trial court
certified Appellant’s right to appeal matters which were raised by written
motion and ruled on before trial. Appellant now appeals based on this limited
right.
III. Appellant’s First Three Points
In his first three points, Appellant argues that section 71.021 is
unconstitutionally overbroad and vague on its face. Appellant also argues
section 125.065(a)(2) violates the separation of powers doctrine by allowing
district judges to order “reasonable restrictions” by civil injunctions that are
enforced by criminal prosecutions under 71.021 of the penal code, thereby
creating new criminal laws. This court recently rejected identical arguments
with respect to the same statutes. See Goyzueta v. State, 266 S.W.3d 126,
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130–37 (Tex. App.—Fort Worth, no pet. h.). Goyzueta involved the very same
injunction that Appellant now challenges. Id. at 129. For the same reasons
articulated in our opinion in that case, we reject Appellant’s arguments
regarding the constitutionality of penal code section 71.021 and the alleged
violation of separation of powers in civil practice and remedies code section
125.065. See id. We overrule Appellant’s first, second, and third points.
IV. Constitutionality of the Injunctive Provisions
In his fourth point, Appellant argues that the injunctions’ specific
provisions that he was charged with violating are unconstitutionally vague and
overbroad, threatening his freedom of association and speech. We will analyze
each of the relevant provisions in turn.
A. Associating with and entering the property of other gang members
Provision 2 3 of the permanent injunction prohibits Appellant from
“associating, standing, sitting, walking, driving, bicycling, gathering or
appearing anywhere in public view with any other Defendant herein, with any
other individual who the Defendant knows is a member of the VC, or with other
3
… Provision 2 of the temporary injunction is substantially similar but has
a textual difference that we will address in a later section.
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known members of any other street gang.” Provision 29 4 of the temporary
injunction prohibits Appellant from “entering on to the property of another
Defendant who is a party to this lawsuit or any other individual who Defendant
knows is a member of the VC” at any location in Wichita County.
1. Overbreadth and right of association
W e first examine the overbreadth argument. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct.
1186, 1191 (1982) (stating that a court’s first task is to determine whether the
enactment reaches a substantial amount of constitutionally protected conduct).
Appellant argues that provision 2 of both injunctions is overbroad because
of the associational restriction. He argues that both provisions 2 and 29
broadly sweep over the First and Fourteenth Amendments’ right of association
by preventing him from appearing in public with a gang member for social and
political purposes or even with a gang member relative.
Applicable Law
A law is impermissibly overbroad if, in addition to proscribing activities
that may be constitutionally prohibited, it sweeps within its coverage speech
or conduct protected by the First Amendment. Bynum v. State, 767 S.W.2d
4
… Provision 29 of the temporary injunction is identical to Provision 26
of the permanent injunction.
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769, 772 (Tex. Crim. App. 1989). An overbreadth challenge will succeed if the
law reaches a substantial amount of constitutionally protected conduct. Village
of Hoffman Estates, 455 U.S. at 494, 102 S. Ct. at 1191.
There are two types of associations entitled to First Amendment
protection: those with intrinsic or “intimate” value and those that are
“instrumental” to forms of political or religious expression or activity. See
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18, 104 S. Ct. 3244, 3249–50
(1984). Intimate associations include those that “attend the creation and
sustenance of a family” such as marriage and childbirth and those that have
“such attributes as relative smallness, a high degree of selectivity in decisions
to begin and maintain the affiliation, and seclusion from others in critical
aspects of the relationship.” Id. at 619-20, 104 S. Ct. at 3250. Instrumental
associations include associating with others “in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends.” Id. at
622, 104 S. Ct. at 3252. The Supreme Court has stated that the Constitution
does not recognize a generalized right of “social association.” City of Dallas v.
Stanglin, 490 U.S. 19, 25, 109 S. Ct. 1591, 1595 (1989). The Court added
that it is possible to find some ”kernel of expression” in many activities,
including “walking down the street or meeting one’s friends at a shopping mall,
but such a kernel is not sufficient to bring the activity within the protection of
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the First Amendment.” Id., 109 S. Ct. at 1595. Additionally, the Court has
stated that “First Amendment [protection] does not extend to joining with
others for the purpose of depriving third parties of their lawful rights.” Madsen
v. W omen’s Health Ctr., Inc., 512 U.S. 753, 776, 114 S. Ct. 2516, 2530
(1994).
Analysis
Unlike statutes which are potentially applicable to all persons, gang
injunctions apply only to those creating a “public nuisance.” Section 125.062
states that “a combination or criminal street gang that continuously or regularly
associates in gang activities is a public nuisance.” Tex. Civ. Prac. & Rem. Code
§ 125.062 (Vernon 2005). Thus, those involved in the public nuisance are not
general members of the public but are active participants in a gang. See id. §§
125.062, 125.065(a). Further, gang injunctions are enforceable only against
individuals who “knowingly” violate an injunction provision. Tex. Penal Code
Ann. § 71.021(a).
Looking at the association prohibited here, the gatherings within the zone
do not fit the category of intimate associations, as VC is a large group that
does not outwardly appear to have family-related motivations. See Roberts,
468 U.S. at 620, 104 S. Ct. at 3250. The gatherings do not fall into the
instrumental association category, either, as the group does not appear to meet
9
in public for political, economic, educational, religious, or cultural purposes. Cf.
Roberts, 468 U.S. at 622, 104 S. Ct. at 3252 (noting that the Jaycees, a
nonprofit civic organization, fell under the category of an instrumental
association). As to Appellant’s argument that VC gang members meet for
social purposes, the Supreme Court has previously stated that social
associations are not recognized as protected associations under the First
Amendment. See Stanglin, 490 U.S. at 25, 109 S. Ct. at 1595. In this case,
the VC social association rose to the level of a public nuisance, which is why
the injunctions were issued.
The temporary injunction plainly states that the Safety Zone and
injunctive restrictions are in place to prevent gang-related criminal activity by
VC members. Based on the characteristics of the association at issue, VC
members do not fall within any of the First Amendment’s protected classes of
association. See People ex rel. Gallo v. Acuna, 929 P.2d 596, 613, 615 (Cal.),
cert denied, 521 U.S. 1121 (1997) (rejecting overbreadth challenge to gang
injunction and upholding an injunctive restriction that prohibited appellant from
“standing, sitting, walking, driving, gathering or appearing anywhere in public
view” “with any other known VST [gang] member”).
Appellant argues that the association prohibition in the injunction does not
take family members into consideration. While it is true that if Appellant has
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gang member relatives the injunction restricts him from associating with them,
the injunction does clarify that this restriction applies only when the parties are
in public view, and it provides exceptions to the restriction for school
obligations and for minors in the company of a parent or guardian. Creating an
outright exception to the injunction for familial association in the Safety Zone
could make the injunction less effective for dealing with the collective nature
of gang activity. See People v. Englebrecht, 106 Cal. Rptr. 2d 738, 758
(2001) (holding that “any liberalization of the injunction to try to allow greater
familial contact in the target area would limit the effectiveness of the
injunction”). Based on the type of association prevented, we hold that
injunctive provision 2 of the temporary and permanent injunctions and provision
29 in the temporary injunction do not restrict a substantial amount of
constitutionally protected conduct. We overrule Appellant’s overbreadth
challenge regarding those provisions.
2. Vagueness of terms
Appellant argues that provisions 29 and 2 are vague because they violate
the principle that ordinary people must be able to understand what conduct is
prohibited. He argues that the restricted addresses in provision 29 are too
vague to inform him of the injunction’s boundaries and that provision 2 is vague
regarding persons he cannot appear with in public.
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Applicable Law
The void-for-vagueness doctrine states that a law is void if it fails to
define the criminal offense with “sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not permit
arbitrary and discriminatory enforcement.” Lawrence v. State, 240 S.W.3d
912, 915 (Tex. Crim. App. 2007). If the law does not substantially implicate
constitutionally protected conduct, it is valid unless it is impermissibly vague in
all applications. Village of Hoffman Estates, 455 U.S. at 495–96, 102 S. Ct.
at 1192. A scienter requirement in a statute alleviates concerns of vagueness.
Gonzales v. Carhart, 127 S. Ct. 1610, 1628 (2007).
Analysis
Appellant argues that provision 29 is vague due to the lack of a list of
specific addresses that he cannot enter and because the provision’s
geographical scope is “confusing.” But provision 29 prohibits Appellant from
“knowingly” entering property of “another Defendant who is a party to this
lawsuit or any other individual who the Defendant knows is a member of the
VC.” Thus, Appellant will only violate this provision if he has knowledge that
the property is that of a party to the lawsuit or a VC gang member.
Appellant had notice that he could not knowingly enter the VC gang
member properties because both the temporary injunction listed him as a
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defendant and specifically listed the other defendants. Appellant was not
prohibited from entering the Safety Zone itself or various other neighborhoods
within Wichita County; rather, he could not enter the property of specifically
listed defendants and persons known to him as VC gang members. The text
of provision 29 is not so difficult that an ordinary person could not understand
it; it specifies that Appellant could not enter known gang member properties or
properties belonging to specifically listed persons, preventing arbitrary and
discriminatory police enforcement.
Appellant also argues that provision 2 is vague because it appears to
prohibit Appellant’s entire presence within the Safety Zone without providing
guidelines for his behavior while in that zone. Provision 2 clearly describes
what he cannot do within the Safety Zone and persons he cannot be seen with
in public. The injunctions both state with specificity the outer boundaries of the
Safety Zone, including major street names, block numbers, and distance
included from the curb line. The Safety Zone clearly encompasses the area
where VC members are a public nuisance: the injunction states that “unless
enjoined, the Defendants will continue to use the ‘VC Safety Zone #1‘ for the
purposes of engaging in organized criminal activity as well as other gang related
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conduct.” The injunction largely proscribes conduct within these boundaries;5
the police therefore had clear guidelines for arrests for injunction violations and
could not arbitrarily arrest Appellant within the Safety Zone. Cf. Chicago v.
Morales, 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999) (holding loitering
ordinance unconstitutionally vague due to the vast police discretion in ordering
dispersal of any person).
Appellant also argues that provision 2 of the temporary injunction is
unconstitutionally vague because it prevents him from appearing in public within
the Safety Zone with anyone “charged with a criminal offense.” He argues this
clause is not accompanied with guidelines to prevent arbitrary and
discriminatory enforcement. If Appellant actually had been charged with
violating this clause, we may have been presented with a different question
because the phrase is expansive regarding what persons are off-limits from
public encounters. The phrase could include persons charged with offenses not
known to Appellant, allowing a potential arrest when Appellant had no notice
that he was violating the injunction. However, Appellant was not arrested
under this clause of the injunctive provision. Appellant was arrested twice for
5
… Provision 29 of the temporary injunction and 26 of the permanent
injunction prohibit Appellant from entering VC and listed defendants’ properties
within Wichita County.
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violating provision 2 by appearing in public with other persons named as
defendants in the temporary injunction. This clause was not even included in
the permanent injunction now in place. Thus, Appellant does not have standing
to challenge this clause. See Goyzueta, 266 S.W.3d at 133 (“[I]f there is no
constitutional defect in the application of the statute to a litigant, he does not
have standing to argue that it would be unconstitutional if applied to third
parties in hypothetical situations.”).6
B. Using gang hand signs and wearing gang clothing
Provisions 15 of the permanent injunction and 16 of the temporary
injunction prohibit Appellant from ”[u]sing or making words, phrases, physical
gestures, or symbols, commonly known as gang hand signs or engaging in
other forms of communication which Defendant knows describes, refers, or
identifies members of the combination, or wearing clothes that particularly
identify membership in the combination.”
1. Overbreadth and First Amendment Speech Concerns
6
… Appellant also argues that provision 2 is vague because it does not
define “gang member.” This argument is flawed because there is a scienter
requirement in the text of the injunction for a violation to occur. Appellant
must know the person is a member of VC or another street gang. The scienter
requirement removes concerns of vagueness. See Gonzalez, 127 S. Ct. at
1628; see also Acuna, 929 P.2d at 613 (1997) (holding with respect to similar
gang injunctions that trial courts should find the requirement of defendant’s
knowledge to be implied in the injunction).
15
Gang hand signs
Appellant argues that provision 16 of the temporary injunction and
provision 15 of the permanent injunction 7 create an unconstitutional restriction
on speech. Appellant first targets the clause that prohibits the use of gang
signs and gestures to identify membership in a gang. Appellant argues these
provisions encompass protected speech, making them overbroad.
Applicable Law
A law is content-neutral when it is justified without reference to the
content of the regulated speech. Bartnicki v. Vopper, 532 U.S. 514, 526, 121
S. Ct. 1753, 1760 (2001). The Supreme Court in Madsen pointed out a
significant difference between injunctions and statutes in the context of
protected speech claims. Madsen, 512 U.S. at 762, 114 S. Ct. at 2523. An
injunction can regulate a particular group (or individuals) and its speech because
of the group’s past actions in the context of a specific dispute between real
parties. Id., 114 S. Ct. at 2523. The parties seeking the injunction assert a
violation of their rights, and the court hearing the action is charged with
fashioning a remedy for a specific deprivation, not with the drafting of a statute
addressed to the general public. Id., 114 S. Ct. at 2523. An injunction is
7
… Appellant was charged with and convicted of violating both.
16
content-neutral when it does not prohibit a particular message. Id., 114 S. Ct.
at 2523. The persons prohibited may all happen to share the same viewpoint,
but this does not mean that the injunction was created to quash a particular
viewpoint. See id., 114 S. Ct. at 2523.
17
Standard of Review
The standard when evaluating a content-neutral injunction is whether the
challenged provision of the injunction burdens no more speech than necessary
to serve a significant government interest. Id. at 765, 114 S. Ct. at 2525. The
injunction must employ the least restrictive means to accomplish its legitimate
purpose. Id. at 775, 114 S. Ct. at 2530.
Analysis
This injunction is content-neutral because it did not prohibit any particular
gang sign message; rather, it prohibited the use of all gang signs and gestures
within the delineated zone. See id. at 763, 114 S. Ct. at 2523 (stating the
injunction was content-neutral because none of the restrictions imposed by the
court were directed at the contents of petitioner’s message). In this case, there
were several important government interests in preventing VC members from
using the Safety Zone to engage in criminal activity that endangers those
residing within the zone. The injunction itself says the defendants are enjoined
from gang-related conduct because “[s]uch acts constitute irreparable harm
because they jeopardize the safety and well being of the citizens living in the
‘VC Safety Zone #1.‘” There is an additional implied government interest in
preventing the incitement of violence because, beyond general identification,
the gang signs can also be used as threats or to provoke a violent event. See
18
Saenz v. State, 976 S.W.2d 314, 318 (Tex. App.—Corpus Christi 1998, no
pet.) (describing gang sign language that indicated threats of violence between
gang members).
The burden on Appellant’s and the listed defendants’ speech is not
beyond the means necessary to maintain a safe area. The provision is not all-
encompassing, as Appellant argues; it narrowly prohibits speech via gang signs
and gestures only. Therefore, Appellant can speak about a wide range of topics
within the Safety Zone without having his speech restrained. The injunction
applies in equal force to all gang signs, not just VC signs, meaning the
injunction does not focus on Appellant’s particularized message. See Madsen,
512 U.S. at 763, 114 S. Ct. at 2523 (stating “none of the restrictions imposed
by the court were directed at the contents of petitioner’s message”); see also
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47,106 S. Ct. 925, 929
(1986) (holding that the restriction was content-neutral because it was aimed
at the secondary effects in the surrounding community, not at a particular
message). Therefore, the provision burdens no more speech than necessary to
protect the safety of the neighborhood. See Madsen, 512 U.S. at 776, 114 S.
Ct. at 2530 (holding that buffer zone and noise restrictions burdened no more
speech than necessary to eliminate the unlawful conduct restrained in the state
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court’s injunction). We overrule Appellant’s overbreadth challenge for these
provisions.
2. Vagueness
Appellant next argues that provision 15 of the permanent injunction and
16 8 of the temporary injunction are unconstitutionally vague. He argues that
there is no definition of “words, phrases, physical gestures or symbols” that are
“commonly known as gang hand signs.”
Applicable Law and Analysis
Based on the previously stated void-for-vagueness doctrine, the provision
appears to define the conduct sufficiently for ordinary people to understand it
and for police officers to enforce the provision nonarbitrarily. See Lawrence,
240 S.W.3d at 915. The language indicates very specific motions and phrases
through limiting the subject matter to hand gestures that identify the person as
a gang member. The language is specific enough to prevent arbitrary and
discriminatory enforcement because hand gestures used by gangs are
conspicuous and not difficult to determine, especially by trained police officers.
See Aviles v. State, No. 05-07-00477-CR, 2008 WL 1850779, at *4 (Tex.
App.—Dallas Apr. 28, 2008, pet. ref’d) (not designated for publication)
8
… The provisions are identical, and Appellant was charged and convicted
for violating both.
20
(discussing Garland’s inclusion of gang hand signs in the multi-factor system
used for identifying potential gang members). Aside from training and
experience, police officers may even rely on statutory language as a guide, such
as section 71.01(d) of the penal code, which states that “‘criminal street gang’
means three or more persons sharing a common identifying sign or symbol or
an identifiable leadership who continuously or regularly associate in the
commission of criminal activities.” Tex. Penal Code Ann. § 71.01 (Vernon
2003) (emphasis added).
Appellant also makes a vagueness challenge regarding the gang clothing
restrictions found in provisions 15 of the permanent injunction and 16 of the
temporary injunction are unconstitutionally vague. Based on the previously
stated void-for-vagueness standard, the provisions define the conduct
sufficiently for ordinary people to understand it. The language is also specific
enough to prevent arbitrary and discriminatory enforcement because gang
colors are commonly known in a region, especially by the police. See Beasley
v. State, 902 S.W.2d 452, 454 (Tex. Crim. App. 1995) (discussing officer’s
knowledge of appellant’s gang membership based on specific color of clothing);
Anderson v. State, 901 S.W.2d 946, 948 (Tex. Crim. App. 1995) (discussing
officer’s testimony that he knew defendant was a gang member because he
was in company of gang members and wore a gang T-shirt). The police will not
21
be free to pursue their personal predilections because they will be limited to
stopping named defendants who choose to wear gang-signifying clothing within
the Safety Zone. We overrule Appellant’s vagueness challenge to these
provisions, and we overrule Appellant’s fourth point.
V. Conclusion
Having overruled all four of Appellant’s points, we affirm the judgment.
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 12, 2009
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