COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00292-CR
JAMES SAMPLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Introduction
Appellant James Sample appeals his conviction and sentence for felony
driving while intoxicated (DWI). 1 In three issues, he contends that the trial court
erred by (1) denying his motion to suppress evidence, (2) denying his motion to
quash the indictment, and (3) imposing cruel and unusual punishment. We
affirm.
1
See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2012).
Background Facts and Procedural History
Lauren Staten and Amy Frazier had been to Denton for ice cream and on
their way home stopped at Hunter’s convenience store in Sanger. While they
were still in the car, Appellant pulled up in a white and yellow van that he parked
very close and perpendicular to them. He climbed out of the van, told the girls
that they did not belong there, and stumbled into the store. Amy thought he
looked “very drunk.” She stayed in the car while Lauren, after some hesitation,
entered the store to buy cigarettes.
Inside, Appellant approached Lauren in a way she found offensive. Noting
that “his eyes weren’t right,” she guessed he was “on a good amount of drugs.”
When she rebuffed his advances, he pulled up his shirt, called her names, and
made racial remarks. Watching from the car in the parking lot, it appeared to
Amy that Appellant was yelling at Lauren and that her friend was getting upset.
Lauren left the store without making a purchase. Appellant continued to
harass her as he followed her into the parking lot. Finally, after Lauren warned
him that she was calling the police, he climbed into the van and left.
The girls called 911. Officers arrived and were taking the girls’ statements
in the parking lot when the girls exclaimed that Appellant’s van was passing by.
Officer Stoney Ward promptly pulled the van over.
Officer Ward recognized Appellant from previous encounters and could tell
that he had been drinking. Appellant smelled strongly of alcohol, his eyes were
red, his speech slurred, and his mannerisms lethargic. The officer observed an
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open beer bottle in the van as well as spilled liquid on the floorboard that smelled
of alcohol.
Officer Ward administered field-sobriety tests, concluded that Appellant
was intoxicated, and arrested him for DWI.
Checking Appellant’s criminal history revealed two prior DWI convictions,
so Officer Ward took Appellant to Denton Regional Hospital for a mandatory
blood draw.
Appellant did not cooperate at the hospital––shouting obscenities to
hospital staff and officers––and he had to be forcibly restrained before the
phlebotomist could draw a blood specimen. The specimen was sent to the
Department of Public Safety Crime Laboratory in Garland for analysis. Results
showed that the specimen had a blood-alcohol concentration of 0.19 grams of
alcohol per 100 milliliters of blood––almost two-and-a-half times the legal limit.
The grand jury returned an indictment charging Appellant with felony DWI,
enhanced by two prior misdemeanor DWI convictions and two prior felonies––
retaliation and felony assault. 2 On the morning of the first day of trial, Appellant
moved to quash the indictment on the grounds that one of the jurisdictional DWIs
is void because Appellant pled guilty in that case without counsel and without
waving a jury trial.
2
When a defendant is convicted of a third-degree felony while having two
prior, sequential felony convictions, he faces a term of “life, or for any term of not
more than 99 years or less than 25 years.” Id. § 12.42(d) (West Supp. 2012).
3
At a hearing on the motion to quash, Appellant testified at first that he did
not remember whether he had refused court-appointed counsel. But he later
admitted that he had refused counsel so he could represent himself. He also
testified that he had filled out paper work indicating that he understood the
dangers and disadvantages of representing himself but that he had chosen to do
so regardless. He further testified that he did not really remember signing any
documents waiving a jury trial.
When the State produced the judgment from Appellant’s prior conviction,
Appellant acknowledged that he was the named defendant. The State’s
fingerprint expert confirmed that the fingerprints on the face of the judgment
matched Appellant’s. The judgment also indicates on its face that Appellant
“intelligently, knowingly, and voluntarily waived the right to counsel, and waived
the right to trial by jury.” The trial court denied the motion to quash, and the case
went to trial.
At trial, after the State had concluded its case-in-chief on guilt-innocence
and rested, Appellant urged for the first time an oral motion to suppress all
evidence obtained after the stop, alleging that Officer Ward stopped him without
reasonable suspicion. The trial court summarily denied the motion to suppress.
The defense rested without presenting evidence, the jury found Appellant
guilty, and Appellant pled “true” to the notice of habitual-felony-offender status in
the indictment.
4
Both sides offered evidence on punishment. The State presented
Appellant’s criminal history, which was substantial. State’s Exhibits 10 through
33 included judgments of convictions spanning decades. In 1990, Appellant had
been convicted of resisting arrest; in 1991, of criminal trespass and DWI; in 1992,
assault and resisting arrest; in 1993, criminal trespass; in 1994, he was convicted
twice of violating protective orders, once for assault, and once for resisting arrest;
in 1996, he had four criminal trespass convictions and one assault; in 1997,
assault-family violence, two criminal-trespass convictions, and harassment; in
1998, he was sentenced to five years in prison for retaliation; in 2004, another six
years for assault-family violence; and in 2010, he picked up another conviction
for assault-bodily injury. After deliberating on the issue of punishment, the jury
assessed thirty-six years’ confinement, and the trial court sentenced Appellant
accordingly.
Motion to Suppress
In his first issue, Appellant claims that the trial court erred by denying his
motion to suppress because Officer Ward lacked reasonable suspicion to justify
the stop. The State replies that Appellant failed to preserve his complaint
because he first raised it after the State had presented all the evidence he later
sought to have suppressed––in fact, after the State had rested its case-in-chief at
guilt-innocence. We agree with the State.
To preserve a complaint for review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
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for the desired ruling if they are not apparent from the context of the request,
objection, or motion. 3 Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort
Worth 2012, no pet.). Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party must
have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena
v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should
not address the merits of an issue that has not been preserved for appeal.
Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g);
Clay, 361 S.W.3d at 765.
An objection must be made as soon as the basis for the objection
becomes apparent. Tex. R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807; see
Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing
policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873,
889 (Tex. Crim. App. 2002) (“We have consistently held that the failure to object
in a timely and specific manner during trial forfeits complaints about the
admissibility of evidence. This is true even though the error may concern a
constitutional right of the defendant.”(citations omitted)); Reyes v. State, 361
S.W.3d 222, 228–29 (Tex. App.––Fort Worth 2012, pet. ref’d).
3
A motion to suppress, written or oral, is nothing more than a specialized
objection to evidence. See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim.
App. 1981) (op. on reh’g).
6
An exception to this requirement may occur when a trial judge instructs the
parties before trial to withhold their objections until after the evidence has been
presented. See Garza v. State, 126 S.W.3d 79, 84–85 (Tex. Crim. App. 2004)
(explaining that the holding “is not meant to apply in situations outside the special
circumstances of this case”). Under normal circumstances, however, objecting
after evidence is already admitted is untimely. See, e.g., Ratliff v. State, 320
S.W.3d 857, 861–62 (Tex. App.––Fort Worth 2010, pet. ref’d) (holding that
appellant’s failure to object at the time officer described evidence and explained
how he found it was untimely and did not preserve error); Tell v. State, 908
S.W.2d 535, 544 (Tex. App.—Fort Worth 1995, no pet.) (holding that defendant’s
objection to officer’s testimony after officer had already answered questions
about objected-to evidence was untimely and did not preserve error); Thomas v.
State, 884 S.W.2d 215, 216–17 (Tex. App.––El Paso 1994, pet. ref’d) (holding
that appellant’s objection to officers’ testimony after they had testified was
untimely and did not preserve error).
There is nothing in the record to indicate that any exception applies.
Appellant did not file a pretrial motion to suppress and he did not object before or
during the state’s case-in-chief to the admissibility of any evidence officers
obtained after the stop, and the trial court did not instruct him to withhold his
objections until after the evidence came in. When Appellant finally did object, it
was through an oral motion to suppress after the State had rested its case-in-
chief. Appellant’s motion to suppress––made after the State had presented all its
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evidence on guilt-innocence and rested––was untimely, and therefore preserved
nothing for our review. See Tex. R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807;
Ratliff, 320 S.W.3d at 861–62. Accordingly, we overrule Appellant’s first issue.
Motion to Quash
In his second issue, Appellant contends that the trial court erred by
denying his motion to quash. The indictment alleged that Appellant had two prior
DWIs, which enhanced this third one to a felony. See Tex. Penal Code Ann. §
49.09(b)(2). Appellant moved to quash the indictment, alleging that one of the
priors is void because at the time he pled guilty in that case he had not waived
his rights to counsel or jury trial. The issue at the hearing on the motion to quash
was whether Appellant had waived his rights before he pled. After the hearing,
the trial court found that he had and it denied the motion. Appellant challenges
that ruling.
The standard of review for assessing a trial court’s ruling on a motion to
quash turns on which judicial actor is best positioned to determine the issue in
controversy. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
Questions of law––such as the sufficiency of an indictment or the constitutionality
of a statute––are reviewed de novo because neither the trial court nor the
reviewing court occupies an appreciably better position than the other to decide
the issue, whereas rulings that turn on evaluations of witness credibility and
demeanor are reviewed for an abuse of discretion because the appellate court––
deciding the issue from a cold record––is in an appreciably weaker position than
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the trial court. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004);
Guzman, 955 S.W.2d at 89; Ahmad v. State, 295 S.W.3d 731, 739 (Tex. App.––
Fort Worth 2009, pet. ref’d) (op. on reh’g); cf. Lawrence v. State, 240 S.W.3d
912, 915 (Tex. Crim. App. 2007) (applying de novo review to decide
constitutionality of statute challenged in motion to quash), cert. denied, 553 U.S.
1007 (2008).
In this case, Appellant challenges neither the sufficiency of the indictment
nor the constitutionality of a statute. He contends, rather, that the trial court
made the wrong ruling after it weighed the evidence presented at the hearing on
his motion to quash. That evidence included Appellant’s testimony, the judgment
of the prior conviction, and the testimony of a fingerprint expert matching
Appellant’s fingerprints with those on the face of the judgment.
When the State seeks to enhance the punishment range for a charged
offense and relies on a prior judgment in the indictment to do so, it “must prove
beyond a reasonable doubt that (1) a prior conviction exists, and (2) the
defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921
(Tex. Crim. App. 2007). The State may prove both of these elements by the
defendant’s admission or by “documentary proof (such as a judgment)” that
contains sufficient information to establish both elements. Id. at 921–22. Once
the State links the defendant to a prior judgment, the burden shifts to the
defendant to prove the judgment is void. Johnson v. State, 725 S.W.2d 245, 247
(Tex. Crim. App. 1987).
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When a defendant collaterally attacks the validity of a prior conviction on
the basis that he was denied his right to counsel, he must prove that he did not
voluntarily, knowingly, and intelligently waive his right to counsel. Garcia v.
State, 909 S.W.2d 563, 566 (Tex. App.––Corpus Christi 1995, pet ref’d) (citing
Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985)). Similarly,
when a defendant collaterally attacks a prior conviction on the grounds that it
does not show that he validly waived a jury trial, he has the burden to show that
the entire record is silent on waiver. West v. State, 720 S.W.2d 511, 519 (Tex.
Crim. App. 1986), cert. denied, 481 U.S. 1072 (1987); Tate v. State, 120 S.W.3d
886, 890 (Tex. App.––Fort Worth 2003, no pet.).
In this case, the State presented the judgment from the prior conviction
and linked it to Appellant. Appellant concedes that the burden at that point
shifted to him to prove that the judgment was not entitled to a presumption of
regularity. He argues, however, that his testimony at the hearing “established
that he neither waived his right to a jury trial nor his right to counsel.” We review
the trial court’s decision that Appellant waived his rights under the abuse of
discretion standard because the trial court’s decision is a mixed question of law
and fact that “turns” on the trial court’s evaluation of credibility and demeanor.
See Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d at 89. See also Loserth v.
State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998) (“We have suggested that a
question ‘turns’ on an evaluation of credibility and demeanor when the testimony
of one or more witnesses, if believed, is always enough to add up to what is
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needed to decide the substantive issue.”). In applying that standard of review,
we are to affirm the trial court’s ruling so long as it is within the zone of
reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1990) (op. on reh’g).
First, we hold that the trial court acted within its discretion to determine that
Appellant did not prove that he did not voluntarily, knowingly, and intelligently
waive his right to counsel because after initially stating that he did not remember
waiving counsel, Appellant admitted that he did waive counsel in order to
represent himself. He further admitted during his testimony that he signed some
paperwork admonishing him of the dangers and disadvantages of self-
representation. See Faretta v. California, 422 U.S. 806, 834–36, 95 S. Ct. 2525,
2541 (1975); Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984).
Given Appellant’s testimony, we hold that it was within the zone of reasonable
disagreement for the trial court to determine that Appellant had not met his
burden of proving that he did not voluntarily, knowingly, and intelligently waive his
right to counsel. See Garcia, 909 S.W.2d at 566.
Second, the absence of a written jury waiver in the court’s file does not
render a judgment void. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim.
App. 1993); State v. Garcia, 905 S.W.2d 7, 9 (Tex. App.––San Antonio 1995, pet.
ref’d). We begin with a presumption of the regularity of trial court proceedings.
Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984); Egger v. State, 62
S.W.3d 221, 224 (Tex. App.––San Antonio 2001, no pet.). Absent an affirmative
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showing to the contrary, a recitation in the trial court’s judgment alone is sufficient
to show a valid jury waiver. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.
App. 1984) (op. on reh’g); Egger, 62 S.W.3d at 224. Here, the judgment recites
that Appellant “appeared Pro Se, and intelligently, knowingly, and voluntarily
waived the right to counsel, and waived the right to trial by jury, and,
thereafter . . . entered a plea of guilty. . . .” Appellant offered very little, if
anything, to the contrary, merely testifying that he thought, but was not sure, that
the judge explained the waiver of a jury trial to him, but that he did not remember
signing a jury waiver. Under these circumstances, we hold that it was within the
zone of reasonable disagreement for the trial court to conclude that Appellant did
not meet his burden of showing that the prior judgment was not entitled to the
presumption of regularity. See West, 720 S.W.2d at 519; Tate, 120 S.W.3d at
890.
Because we hold that the trial court acted within the bounds of its
discretion by denying Appellant’s motion to quash, we overrule Appellant’s
second issue.
Punishment
In his third issue, Appellant argues that his thirty-six year sentence for DWI
is cruel and unusual punishment.
As stated above, ordinarily, to preserve an issue for appellate review, an
appellant must have first raised the issue in the trial court. Tex. R. App. P.
33.1(a); see also Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App.
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2006) (discussing Rule 33.1). A sentencing issue may be preserved by objecting
at the punishment hearing, or when the sentence is pronounced. See, e.g.,
Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002) (appellant failed to
preserve error as to restitution amount by failing to object at the punishment
hearing to amount of restitution sought by the prosecution); Russell v. State, 341
S.W.3d 526, 527–28 (Tex. App.––Fort Worth 2011, no pet.) (appellant failed to
preserve Eighth Amendment complaint when he did not object at sentencing). In
some instances, an appellant may preserve a sentencing issue by raising it in a
motion for new trial. See, e.g., Bitterman v. State, 180 S.W.3d 139, 142–43 (Tex.
Crim. App. 2005) (appellant raised issue of plea breach in motion for new trial).
The requirement that an objection be raised in the trial court assumes that the
appellant had the opportunity to raise it there. See Hardeman v. State, 1 S.W.3d
689, 690 (Tex. Crim. App. 1999) (appellant did not allege that he did not have an
opportunity to object when sentence was pronounced and so failed to preserve
error); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (permitting
appellant to raise his objection for the first time in a motion for new trial since
“appellant had no opportunity to object to the trial court’s action until after that
action was taken”). Thus, when an appellate court finds that error has not been
preserved, it will often recite the times at which the appellant had the opportunity
to object, but failed to do so. See, e.g., Idowu, 73 S.W.3d at 920 (“Neither
appellant nor his counsel objected at the punishment hearing . . . .”). An
appellant fails to preserve error by failing to object when he had the opportunity;
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conversely, if an appellant never had the opportunity to object, then he has not
forfeited error. See Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App.
2003) (appellant did not forfeit his objection since “the [trial] court modified the
terms of Rickels’s probation without a hearing, and Rickels had no opportunity to
object.”); Cobb v. State, 95 S.W.3d 664, 666 (Tex. App.––Houston [1st Dist.]
2002, no pet.) (appellant did not forfeit challenge to language in written judgment
“[b]ecause the judgment was not prepared until after the end of the hearing,
[therefore] appellant could not have complained at the hearing about any alleged
defect in the judgment.”).
Here, although Appellant did address the trial court and expressed “shock”
at his “situation,” at no time did he raise a specific objection claiming that the
punishment the jury assessed violated constitutional protections against cruel
and unusual punishment. Nor did Appellant make a specific objection or
complaint in a motion for new trial. See Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.––Fort Worth 2009, pet. ref’d) (citing Tex. R. App. P. 33.1(a) and Rhoades v.
State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) and explaining that appellant
could have also preserved his punishment claim by making the complaint in a
motion for new trial).
The court of criminal appeals has said that the requirement that an
objection be raised in the trial court assumes that the appellant had the
opportunity to raise it there. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App.
2013) (citing Hardeman, 1 S.W.3d at 690). Here, the record shows that
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Appellant had the opportunity to raise his complaint that his punishment was
unconstitutional but failed to do so. Under these circumstances he has failed to
preserve his claim.
Additionally, when a sentence is within the relevant statutory range of time,
that punishment is “generally not subject to challenge for excessiveness.” Means
v. State, 347 S.W.3d 873, 875 (Tex. App.—Fort Worth 2011, no pet.) (citing Kim,
283 S.W.3d at 475–76); accord Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.
Crim. App. 2006) (holding that “[s]ubject only to a very limited, ‘exceedingly rare,’
and somewhat amorphous Eighth Amendment gross-disproportionality review, a
punishment that falls within the legislatively prescribed range, and that is based
upon the sentencer’s informed normative judgment, is unassailable on appeal”).
Appellant claims that his thirty-six year sentence is cruel and unusual
punishment considering the severity of his offense and that it violates both state
and federal constitutional prohibitions against cruel and unusual punishment.
Even if we were to reach the merits of Appellant’s complaint in the interests of
justice, we are not persuaded that his sentence is cruel and unusual. See Vrba
v. State, 69 S.W.3d 713, 716, 724–25 (Tex. App.––Waco 2002, no pet.) (holding
that a sixty-year sentence for a DWI conviction where the defendant had an
extensive criminal history was not grossly disproportionate and did not violate his
Eighth Amendment rights); see also Ewing v. California, 538 U.S. 11, 20–21, 123
S. Ct. 1179, 1185 (2003) (recognizing that the Eighth Amendment “contains a
‘narrow proportionality principle’ that ‘applies to noncapital sentences’” in
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“exceedingly rare” cases) (quoting Harmelin v. Michigan, 501 U.S. 957, 996–97,
111 S. Ct. 2680, 2702–03 (1991) (Kennedy, J., concurring in part and concurring
in judgment) and Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138
(1980)). Thirty-six years is well within the relevant statutory range of twenty-five
years to ninety-nine years or life for a third-degree felony DWI with two prior,
sequential felony convictions. Tex. Penal Code Ann. § 12.42(d).
The State’s evidence at punishment included judgments of Appellant’s
prior convictions that spanned three decades. The record shows that in addition
to the two prior and the instant DWI convictions, between the years 1990 and
2011, Appellant was convicted multiple times for resisting arrest (three times),
criminal trespass (eight), assault (six), and violating protective orders (twice). In
addition, he had one conviction for harassment and received prison terms for
retaliation and assault-family violence.
A repeat offender’s sentence is “based not merely on that person’s most
recent offense but also on the propensities he has demonstrated over a period of
time during which he has been convicted of and sentenced for other crimes.”
Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.––Houston [14th Dist.] 2000, pet.
ref’d) (quoting Rummel, 445 U.S. at 284, 100 S. Ct. at 1144). Therefore, even if
we assumed for the sake of argument that Appellant had preserved his
punishment claim, considering the present offense together with his criminal
history, we would hold that his thirty-six year sentence is not cruel and unusual
16
punishment. See Rummel, 445 U.S. at 284–85, 100 S. Ct. at 1144–45; Hicks, 15
S.W.3d at 632–33. Accordingly, we overrule Appellant’s third issue.
Conclusion
Having overruled each of Appellant’s three issues, we affirm the trial
court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
PUBLISH
DELIVERED: June 13, 2013
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