COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00281-CR
DESMOND LEDET APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant filed an appeal of his sexual assault conviction and twenty-year
sentence. He brings five points alleging ineffective assistance of his trial
counsel, one point contending that the State used perjured testimony, and one
point contending that the evidence is insufficient to support his conviction. We
affirm.
1
See Tex. R. App. P. 47.4.
Sufficiency of the Evidence
In his seventh point, appellant claims that the evidence is insufficient to
support his conviction.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
According to appellant, the complainant testified to facts that supported
only the offense of aggravated sexual assault, not the lesser-included offense of
sexual assault. The complainant testified that appellant approached her in his
truck at Jasmine Food Store on East Berry Street in Fort Worth and asked if she
wanted a ride; she was walking to find a telephone, so she agreed. She also
said that appellant told her he needed to stop at a friend’s house along the way.
Appellant drove to an apartment complex and left the complainant alone in the
truck for about five minutes. When he returned, he drove to the back of the
complex, and the complainant started to feel nervous. She told appellant that
she would find another way home.
According to the complainant, when she tried to step out of the truck,
appellant pulled a gun from the driver’s side door, pointed it at her, told her to get
back in the truck, and threatened to kill her if she screamed.
2
The complainant testified that appellant told her to pull off her panties; she
began to beg him not to “do this.” Appellant became more aggressive, pulled off
the complainant’s panties, ordered her to face backward in the seat, placed his
hands around her neck, and forced her to have sex with him. Appellant then got
back in the driver’s seat and drove off with the complainant still in the truck. She
jumped out on a bridge and ran across the street to a pay phone where she
called 911.
The evidence shows that police took the complainant to the hospital where
hospital personnel performed a sexual assault examination. Semen with
unidentified DNA was taken from the complainant’s vagina, ankle, and panties
and preserved; that DNA was determined to originate from appellant after the
complainant identified him in a photo lineup approximately five years later.
This evidence is sufficient to prove the elements of sexual assault: that
appellant intentionally or knowingly caused the penetration of the complainant’s
sexual organ without her consent by compelling her to submit or participate by
the use of physical force or violence. See Tex. Penal Code Ann. § 22.011 (West
2011); Horne v. State, 46 S.W.3d 391, 394 (Tex. App.––Fort Worth 2001, pet.
ref’d). 2 Moreover, because sexual assault is a lesser-included offense of
2
Appellant contends that because the jury charge submitted instructions on
both aggravated sexual assault and sexual assault, and because the jury found
him guilty of only sexual assault, the jury effectively acquitted him of using a gun,
the aggravating element. The complainant had testified that she did not know
whether the gun was real or not, or if it was real, whether it was loaded.
Nevertheless, there is sufficient evidence, even without the gun, that appellant
3
aggravated sexual assault, if the complainant’s testimony was sufficient to
support the greater offense, her testimony necessarily also proved the lesser
offense. See Wasylina v. State, 275 S.W.3d 908, 909–10 (Tex. Crim. App. 2009)
(explaining difference between whether lesser-included offense instruction
warranted and sufficiency of the evidence to prove lesser-included offense). We
overrule appellant’s seventh point.
Ineffective Assistance
In his first through fourth and sixth points, appellant contends that his trial
counsel was ineffective.
Standard of Review
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
used physical force or violence to compel the complainant to participate without
her consent.
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prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.” Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption
of reasonable professional assistance, “any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
5
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
Suppression of Pretrial Statements
Appellant’s first through fourth points relate to his second trial counsel’s
failure to file a motion to suppress statements appellant made to the police in
2009 and that second counsel’s failure to pursue a motion to suppress that
appellant’s prior counsel had filed. According to appellant, his statements to
police should have been suppressed because he invoked his Fifth Amendment
right to remain silent and because he had invoked his Fifth Amendment right to
counsel.
The clerk’s record contains a form signed by appellant and the magistrate,
entitled, “RIGHT TO COUNSEL,” which states, “DO YOU WANT A COURT-
APPOINTED LAWYER?” The box that was checked reads as follows:
YES, I BELIEVE THAT I AM ENTITLED TO AN APPOINTED
LAWYER. I have been advised by the court of my right to
representation by a lawyer for the charge pending against me. I
certify that I am without means to employ a lawyer of my own
choosing and I now request the court to select and appoint a lawyer
for me. I understand that I may be required to repay Tarrant County
for a court-appointed lawyer at a later time, under such terms as a
court may determine based on my future financial status.
6
When appellant was later interviewed by officers, without counsel present, they
warned him of his Miranda rights, but he did not request counsel at that time in
connection with the subsequent questioning.
Once a person invokes his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by merely
showing that the suspect responded to police-initiated interrogation after being
advised of his rights again. Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct.
1880, 1885 (1981); Pecina v. State, 361 S.W.3d 68, 75 (Tex. Crim. App.), cert.
denied, 133 S. Ct. 256 (2012). This prophylactic rule protects a suspect who has
made the decision not to speak to law-enforcement officers without his lawyer
and who has clearly communicated that decision to the police from further police
badgering. Pecina, 361 S.W.3d at 75.
It is the police officer or other law-enforcement agent who administers
Miranda warnings, and he or she does so immediately before custodial
interrogation. Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612
(1966); Pecina, 361 S.W.3d at 75. Thus, the police must give the Fifth
Amendment Miranda warnings during the process of custodial interrogation but
before questioning actually begins. Miranda, 384 U.S. at 473–74, 86 S. Ct. at
1627; Pecina, 361 S.W.3d at 75–76. But the United States Supreme Court has
never accepted the notion of an anticipatory invocation of Miranda rights
(1) given by someone other than law-enforcement officers or other state agents
or (2) outside the context of custodial interrogation. McNeil v. Wisconsin, 501
7
U.S. 171, 182 n.3, 111 S. Ct. 2204, 2211 n.3 (1991); Pecina, 361 S.W.3d at 76.
A preliminary hearing will not usually involve such a custodial interrogation
context. McNeil, 501 U.S. at 182 n.3, 111 S. Ct. at 2211 n.3; Pecina, 361 S.W.3d
at 76.
Thus, “a defendant who does not want to speak to the police without
counsel present need only say as much when he is first approached and given
the Miranda warnings.” Montejo v. Louisiana, 556 U.S. 778, 794, 129 S. Ct.
2079, 2090 (2009). And if he does invoke his Fifth Amendment right to counsel,
“not only must the immediate contact end, but ‘badgering’ by later requests is
prohibited.” Id. at 794–95, 129 S. Ct. at 2090.
Because there is no evidence that appellant invoked his Fifth Amendment
right to have counsel present for police questioning during the course of a
custodial interrogation, under the Court of Criminal Appeals’s analysis of this
issue in Pecina, he would not have prevailed on a motion to suppress on the
ground he raises in his appeal; thus, counsel was not ineffective under Strickland
for failing to pursue a motion to suppress on that basis. See Pecina, 361 S.W.3d
at 76; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Moreover,
even if counsel had pursued such a motion and prevailed, there is not a
reasonable probability the outcome of the trial would have been different. See,
infra, Majority Op. at 10–11.
Contrary to the concurring opinion’s claim that our opinion is advisory as it
relates to addressing the likely success of his motion to suppress, appellant
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raises the point in the context of his claim of ineffective assistance of counsel.
As the concurrence knows, under Strickland, this requires us to evaluate whether
but for counsel’s alleged errors, the result of the proceeding would be different.
Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068. As the Supreme
Court stated in Strickland,
there is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an
insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.
Courts should strive to ensure that ineffectiveness claims not
become so burdensome to defense counsel that the entire criminal
justice system suffers as a result.
Id. at 697, 104 S. Ct. at 2069; see also Ex parte Martinez, 330 S.W.3d 891, 901
(Tex. Crim. App.) (“The two prongs of Strickland need not be analyzed in a
particular order . . . .”), cert. denied, 131 S. Ct. 3073 (2011); Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009) (declining to analyze whether first prong
of Strickland met because second prong was not). And Thompson specifically
states that the failure to make the required showing of “either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.”
Thompson, 9 S.W.3d at 813 (emphasis added).
While the concurring opinion is correct that appellant’s motion to suppress
was not litigated at trial, we are required to evaluate its likely success to evaluate
9
appellant’s point on appeal: counsel’s effectiveness in light of his failure to
pursue the motion to suppress at trial. Thus, our opinion on the likelihood of the
success of that motion is not advisory. See Smith, 286 S.W.3d at 342.
We overrule appellant’s first point.
In his second through fourth points, appellant contends counsel was
ineffective for failing to object to, and move to suppress, the part of the interview
in which he invoked his right to terminate the interview. The State concedes that
appellant did so and agrees that “the portion of the tape in which [a]ppellant
invokes his right to terminate the interview was not admissible before the jury.”
But the State contends that, nevertheless, trial counsel was not ineffective
because his decision not to object could have been based on reasonable trial
strategy.
When the detectives told appellant they were going to check his DNA,
appellant very clearly told them that he ended and cancelled the interview.
Nevertheless, the detectives continued to question him, and he continued to
deny knowing or having committed an offense against the complainant.
Appellant’s counsel did not object to the playing of the part of the interview that
included appellant’s termination of the interview and his subsequent denial of the
detectives’ allegations that he sexually assaulted the complainant. The State
emphasized appellant’s denial in its closing argument by contrasting it with
appellant’s testimony at trial that he had consensual sex with her.
10
Regardless of the fact that part of the interview was inadmissible, we do
not believe that the outcome of the proceedings would have been any different.
The issue of whether the complainant consented was highly disputed at trial. As
appellant points out, the jury had to decide whether they believed appellant’s
testimony or the complainant’s; the DNA evidence merely confirmed that the sex
did occur. Thus, any evidence tending to impeach appellant’s credibility was
highly probative. But appellant was able to explain extensively during his
testimony that he did not recognize the photograph of the complainant shown to
him by the detectives during the interview. 3 Also, Detective O’Brien admitted on
cross-examination that he had shown appellant a more recent driver’s license
photo of the complainant, that the detective did not know what she looked like in
2004, and that appellant could have been unable to identify her for that reason.
Appellant was also able to explain that because of the passage of time, the
complainant had gained a significant amount of weight; thus, he did not
recognize her in the interview. The complainant had previously testified that she
had gained weight since the sexual assault. Defense counsel discussed the
matter during closing argument, pointing to appellant’s testimony that his failure
to initially recognize the complainant was a mistake and that appellant had later
written a letter to the district attorney’s office stating that he had previously been
mistaken. Accordingly, appellant’s counsel had the opportunity to neutralize the
3
He also stated a couple of times in the interview that he had no memory of
the complainant.
11
impact of the State’s use of appellant’s statement, bringing the issue back to the
jury’s choice over whom to believe; the jury chose the complainant. For this
reason, appellant has not shown that but for counsel’s failure to so object, there
is a reasonable probability that the outcome of the trial would have been
different.
Moreover, we do not believe that there is a reasonable probability the
trial’s result would have been changed had counsel been able to exclude the part
of the interview in which appellant invoked his right to terminate it. Appellant’s
statements after he invoked his right were no different than his statements prior
to doing so; he continued to deny knowing or having sex with the complainant. In
fact, he accused the detectives of lying when they told him they knew what he
had done. Thus, the record does not show a reasonable probability that the
outcome of the trial would have been different had counsel been successful in
having that part of the statement excluded. See Ali v. State, 26 S.W.3d 82, 88
(Tex. App.––Waco 2000, no pet.); see also Lykins v. State, 784 S.W.2d 32, 34–
36 (Tex. Crim. App. 1989) (holding that statements taken in violation of Miranda
and article 38.22 could be used to impeach defendant).
Contrary to the concurring opinion’s assertion, we are not approving
mistakes by the police and prosecutor “by our silence.” Concurring Op. at 1. Nor
have we looked for a way “to justify the actions of either the State or the
defense.” Id. We are simply following the law and higher courts’ precedent,
which we are required to do. Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.––
12
Fort Worth 2004) (op. on reh’g), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007); see
Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (holding that a state
intermediate appellate court is bound to follow precedent of the highest courts of
the state). Moreover, the State itself concedes that part of the interview was
inadmissible because the police should have ended it after appellant said he
wanted to end it, a fact that we have clearly pointed out in our opinion.
We overrule appellant’s second through fourth points.
Failure to Object to Prosecutor’s Wheel of Fortune Example
In his sixth point, appellant contends that his trial counsel was ineffective
because he did not object or seek curative instructions but instead
allowed the State to indoctrinate . . . [the] jury with a prejudicial
definition of proof beyond a reasonable doubt using the Wheel of
Fortune as an example, which violated [a]ppellant[’]s [constitutional]
right to a fair trial, the due process right to be convicted of proof of all
the elements [necessary] to constitute an offense beyond a
reasonable doubt, the right to an impartial tribunal, lessened the
State[’]s burden of proof and tainted [a]ppellant[’]s “presumption of
innocence[.]”
During voir dire, the State used the following example to explain the
concept of proof beyond a reasonable doubt:
[STATE]: . . . Judge Vick mentioned this, and these are rights that
are based on our [C]onstitution. We all have these rights. If we
were committed - - convicted of a crime, accused of a crime, we
each and every one have these rights. If you get a traffic ticket, you
still have these rights.
A defendant has a presumption of innocence, and that stays
with him until and unless we prove beyond a reasonable doubt that
he is guilty.
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It’s our burden, it’s always our job to bring evidence, but it’s
not beyond all doubt. It’s not a hundred percent.
[Juror], how could I prove something to you beyond any
question whatsoever?
[JUROR]: Evidence.
[STATE]: Okay. But, I mean, you’d still have a question in your
mind, wouldn’t you? Because you don’t know these people, right?
[JUROR]: Right.
[STATE]: I mean, you have to make the best decision you can. So
to prove it to you beyond all doubt, [Second Juror]? . . .
....
[STATE]: How could I prove it to you beyond all doubt, to get any
doubt out of your mind?
[SECOND JUROR]: I’m not sure. I’d have to see - - I’d have to see
a big picture of all the evidence and then make a decision. You
know, just talking, I don’t know what would be in my mind. I would
have to see everything to come up with that.
[STATE]: Okay. Thank you.
For most people, it’s like, you know, I’m going to have to see
it. I’m going to have to see it with my own eyes to have no doubt
whatsoever.
And so, you know, until they invent my time machine and I can
take every one of y’all back to the crime itself and let y’all see it, this
is the standard we have. There’s no way I could ever prove to
anyone beyond all doubt. So this is the burden that we have.
Because if y’all saw the crime, you wouldn’t be able to be jurors,
would you? You would be witnesses. I’d have a lot of good
witnesses.
So it’s not certainty. It’s somewhere short of that. Where are
my Wheel of Fortune watchers?
14
(Hands raised)
[STATE]: Oh, come on. I’m not the only one that watches that
show, am I? I got through law school on this thing. [Third Juror].
[THIRD JUROR]: I love Wheel of Fortune.
[STATE]: Okay. Wheel of Fortune. Vanna turns the letter over as
people guess and say, give me an M, she’ll turn letters over. And at
some point before the puzzle is complete, usually you can guess it.
All the letters might not be turned over, but you know what it says,
you know what the answer is.
Tim had a hard time with the second one, but he got the first one.
We had Julia Roberts. The thrill of victory and the agony of defeat,
that’s an old one. So at some point before you get all the letters you
know what the answer is. Is it [Fourth Juror]?
....
[STATE]: Would you agree with that?
[FOURTH JUROR]: That at a certain point all reasonable doubt is
gone or - -
[STATE]: At a certain point the picture becomes clear.
[FOURTH JUROR]: Yes.
[STATE]: At some point it’s earlier than others. You can guess what
the - - what it is before you get very many letters. Sometimes you
need almost all of them.
[FOURTH JUROR]: It’s always good to have all of them.
[STATE]: Yeah. It’s always good to have all of them, but sometimes
you don’t. Are you comfortable making a decision without all the
letters?
[FOURTH JUROR]: Not a hundred percent sure on that one. I
would have to, like I say, see all the evidence, see what kind of light
it’s presented in.
15
[STATE]: Okay. Anyone else who just doesn’t think they would be
able to do that? You’re going to have to have all doubt removed?
Okay. I’m going to - - don’t see any hands or any head nods.
[Fifth Juror].
[FIFTH JUROR]: Yes.
[STATE]: Are you comfortable with making a decision maybe if you
still have questions, but you’re to the point where you’re beyond a
reasonable doubt?
[FIFTH JUROR]: If I’m to the point beyond a reasonable doubt, then
I feel comfortable making a decision.
[STATE]: Okay. Thank you.
Appellant contends that the prosecutor’s use of the word “letters” in the analogy
encouraged the jury to convict even if all of the elements of the offense were not
proved.
The use of a hypothetical fact situation during voir dire is permissible if it is
used “to explain the application of the law.” Atkins v. State, 951 S.W.2d 787, 789
(Tex. Crim. App. 1997); Lee v. State, 176 S.W.3d 452, 461 (Tex. App.––Houston
[1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). Because the
court of criminal appeals has held that the better practice is for the trial court not
to give a definition of reasonable doubt to the jury, it is permissible for the State
to inquire into the jury’s understanding of the parameters of that burden of proof.
Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012); Paulson v. State,
28 S.W.3d 570, 573 (Tex. Crim. App. 2000); Wilder v. State, 111 S.W.3d 249,
252–53 (Tex. App.––Texarkana 2003, pet. ref’d) (holding that prosecutor’s
16
explanation that State did not have to prove one hundred percent certainty was
permissible). This area of inquiry is designed not to “assign a precise meaning”
to the term “beyond a reasonable doubt,” which is left to the jurors themselves to
apply in their own common sense understanding, but instead is to test whether
the prospective jury members will hold the State to an impermissibly high or low
burden of proof. Fuller, 363 S.W.3d at 587.
Here, the prosecutor’s colloquy with the panel shows that she was
engaging in a permissible inquiry into the prospective jurors’ understanding of the
proper parameters of the beyond a reasonable doubt burden of proof and how
that relates to using circumstantial evidence to prove a case. It does not show
that the State was urging the prospective jurors that they could convict upon less
than the appropriate standard or if not all of the elements were proven. See id.;
Wilder, 111 S.W.3d at 252–53. Regardless, even if counsel could be considered
deficient for failing to object to this hypothetical, the court’s charge properly
instructed the jury that it must find “each and every element of the offense
charged beyond a reasonable doubt” to convict; thus, we cannot say that such a
failure would have affected the trial’s outcome.
Accordingly, we conclude and hold that counsel was not ineffective by not
objecting to the Wheel of Fortune hypothetical and that even if he was, the
outcome of the trial would not have been different. We overrule appellant’s sixth
point.
17
Alleged Use of Perjured Testimony
In his fifth point, appellant claims that the State knowingly used the
perjured testimony of the complainant because of inconsistencies between her
testimony at trial and what she told officers after the sexual assault. Appellant
did not preserve this argument for review. See Tex. R. App. P. 33.1(a)(1); Devoe
v. State, 354 S.W.3d 457, 472 (Tex. Crim. App. 2011). Additionally, to the extent
his complaint might encompass his counsel’s failure to so object, there is no
evidence or other indication in the record that the complainant lied in her
testimony as opposed to her being mistaken, having remembered additional
details that she did not initially tell the police, or having a hazy memory of details.
See Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009); Vasquez v.
State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002). In fact, counsel questioned
one of the investigating detectives about apparent inconsistencies in the
complainant’s testimony. We overrule appellant’s fifth point.
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Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DAUPHINOT, J., filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 2, 2013
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