Haywood Henderson v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00312-CR

Haywood Henderson § From the 396th District Court

§ of Tarrant County (1210389D)

v. § November 21, 2012

§ Opinion by Chief Justice Livingston

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s judgment. It is ordered that the judgment of

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________
Chief Justice Terrie Livingston
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00312-CR

HAYWOOD HENDERSON APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

----------

MEMORANDUM OPINION1

----------

In two issues, appellant Haywood Henderson appeals his felony conviction

for driving while intoxicated (DWI).2 Appellant contends that the trial court erred

by denying his request to judicially notice the language of a section of the

administrative code and by overruling his objection to part of the State‘s closing

argument concerning his guilt. We affirm.

1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2012).

2
 Background Facts

One afternoon in August 2010, Fort Worth Police Department (FWPD)

Officer Chris Daniels was patrolling the western part of Fort Worth. Officer

Daniels saw appellant driving a car that had an expired registration sticker, so

Officer Daniels conducted a traffic stop. Appellant did not drive too fast, weave,

brake improperly, or run stop signs in the approximately five to ten seconds that

Officer Daniels watched appellant‘s driving.

When Officer Daniels asked to see appellant‘s driver‘s license, appellant

gave Officer Daniels a credit card. Appellant was coherent, but Officer Daniels

noticed a strong smell of an alcoholic beverage coming from appellant‘s car or

his breath. Officer Daniels also saw that appellant had bloodshot and watery

eyes and used ―slurred, thick, [and] kind of loud speech.‖3 Officer Daniels asked

appellant if he had been drinking alcohol, and appellant responded that he had

not had any beers since the previous night. Appellant conceded, however, that

he had beers inside his car. When appellant got out of the car, Officer Daniels

still smelled alcohol on him.

Appellant performed field sobriety tests. According to Officer Daniels,

appellant showed six out of six signs of intoxication on the horizontal-gaze-

nystagmus test, four out of eight signs on the walk-and-turn test, and three out of

3
At trial, appellant‘s wife testified that he has bloodshot eyes on a regular
basis because of irritation from when he was a welder and from when he cut
down trees.

3
four signs on the one-leg-stand test. Officer Daniels arrested appellant and

placed him in the backseat of the patrol car. When Officer Daniels searched

appellant‘s car, he found two twenty-four-ounce beer cans in the car that were

mostly empty.

In the patrol car, appellant was able to take his handcuffs from behind him

and bring them underneath his legs to the front of his body, at which time he

reached his cell phone and called his wife and his sister. Appellant volunteered

to take a breath test, and Officer Daniels took him to the Tarrant County Sheriff‘s

Office, where Officer Daniels gave appellant a statutory warning about the test.

Appellant blew into a breathalyzer machine two times, and the machine

registered his alcohol concentration at .245 and .239, each of which is about

three times the legal limit.4

A grand jury indicted appellant for DWI. The indictment contained

paragraphs alleging that he had been previously convicted for DWI twice and had

also been convicted for committing two felony offenses.5 Appellant pled not

guilty. At trial, Officer Daniels conceded that appellant was not ―falling down

drunk‖ but explained that he had based his arrest of appellant on his

4
See id. § 49.01(2)(B) (West 2011).
5
DWI is a third-degree felony when a defendant has two prior DWI
convictions. Id. § 49.09(b)(2). When a defendant is convicted for a third-degree
felony while having two prior, sequential felony convictions, the defendant 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).

4
performance of the field sobriety tests; his unsteady balance; his bloodshot,

watery, and heavy eyes; his slurred and loud speech; and the ―strong odor of an

alcoholic beverage coming from his person.‖ Officer Daniels also stated, among

other facts, that people may have natural nystagmus without drinking alcohol;

that he took seventy-three seconds to complete the horizontal-gaze-nystagmus

test, which should normally take less time; that taking too long to conduct that

test may induce nystagmus; that appellant did not have vertical nystagmus

(which would have indicated that appellant was ―very intoxicated‖); that he was

not able to record the statutory breath-test warnings that he gave to appellant;

and that appellant was coherent and retained his fine motor skills during his

detention.

The jury convicted appellant.6 Appellant pled true to the habitual felony

offender notice in the indictment, and after the parties presented evidence

concerning his punishment, the trial court sentenced him to thirty years‘

confinement. He brought this appeal.

Judicial Notice

In his first issue, appellant contends that the trial court erred by denying his

request to take judicial notice of the contents of title 37, section 221.9 of the

administrative code (section 221.9) as that section existed on the date of his

6
Appellant‘s indictment simply alleged that he operated a motor vehicle in a
public place while intoxicated. The jury charge stated, ―‗Intoxicated‘ means not
having the normal use of mental or physical faculties by reason of the
introduction of alcohol, or having an alcohol concentration of 0.08 or more.‖

5
arrest. During the State‘s initial questioning of Officer Daniels, he testified that he

had received training in detecting signs of intoxication, that he was qualified to

investigate DWIs, that he had become certified at some point to administer field

sobriety tests, that the FWPD did not require him to annually update that

certification, and that he had maintained the certification. On cross-examination,

Officer Daniels testified that he had completed field sobriety training in 2006. He

said, however, that he had not updated that certification and that he was not

aware that the Texas Commission of Law Enforcement Officer Standards and

Education (TCLEOSE) required recertification in conducting field sobriety tests

every two years. During the cross-examination by defense counsel, the following

exchanges occurred:

Q. You are aware of the fact that TCLEOSE says you have to
get certified every two years?

A. No.

....

Q. . . . Isn‘t it true, Officer Daniels, you‘re supposed to
recertify every two years?

....

[A.] I‘m not aware of that. . . .

....

Q. Would it be asking too much of you to verify that you are
supposed to recertify every two years?

A. I wasn‘t aware of that. If that is, in fact, the rule, I wasn‘t
aware of that.

6
 Q. Okay. Let me ask you this. If that was . . . in fact, the
rule, . . . you were not certified, were you?

A. It would depend on what the criteria is for the certification.
If routine practice of the DWI [field sobriety tests] is sufficient enough
for certification, then, yes, I conduct [DWI tests] fairly often.

....

Q. And if TCLEOSE says you‘re supposed to requalify every
two years, on August 16th, 2010, you were not certified, were you, if
that‘s the case? If that‘s the rule?

A. It would depend on the criteria for the recertification. I‘m
not sure what that criteria is.

On redirect-examination, Officer Daniels said that he was not a field

sobriety testing ―practitioner‖ but rather simply administered field sobriety tests

(although Officer Daniels had previously testified that he was a practitioner), that

he had never claimed to hold a practitioner‘s certificate, that he had never

learned in his training about a recertification requirement for administering field

sobriety tests, and that he did not need a practitioner‘s certificate to testify about

field sobriety tests. Upon further cross-examination, Officer Daniels conceded

that he did not know what a field sobriety testing ―practitioner‖ was.

After all of the State‘s witnesses had testified, a prosecutor asked the trial

court to take judicial notice that section 221.9, which concerned field sobriety

testing certifications, had been repealed as of July 14, 2011 (which was a week

before the trial occurred). Appellant objected to the State‘s request on the

ground that his crime occurred before the repeal date. The State withdrew its

request, but appellant then asked the court to take judicial notice of the language

7
of section 221.9 before it was repealed, including that a standardized field

sobriety practitioner was required to recertify every two years.7 Appellant

contended that if the trial court did not take judicial notice of section 221.9, the

jury would be left with a ―false and misleading impression‖ about whether Officer

Daniels was required to recertify. After prosecutors and appellant‘s counsel

offered arguments concerning whether Officer Daniels was a ―practitioner‖ who

was subject to section 221.9‘s requirements, the trial court denied appellant‘s

request for judicial notice, stating,

I think the fact that you guys have spent 15 minutes arguing back
and forth about what the law is, is a prime example of when the
Court, in its discretion, does not have to take judicial notice of
particular laws because there is apparently wide disagreement as to
what the law is and whether it applies to the individual officer in this
case, which would then fall to either party to provide evidence of,
instead of the Court taking judicial notice of.

So I‘m going to deny your request to take judicial notice of
section 221.9 . . . .

Appellant asserts that the trial court erred by denying his request to take

judicial notice of section 221.9 as it existed on the date of his offense. Rule of

evidence 204 states in part, ―A court upon its own motion may, or upon the

motion of a party shall, take judicial notice of . . . the codified rules of the

7
See Goains v. State, No. 09-09-00503-CR, 2011 WL 4537892, at *2 (Tex.
App.—Beaumont Sept. 28, 2011, pet. ref‘d) (mem. op., not designated for
publication) (explaining that the 2009 version of section 221.9 required
recertification for standardized field sobriety testing every two years), cert.
denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012). Section 221.9 was repealed in
2011 because training for standardized field sobriety testing is now included in
the ―Basic Peace Officer Course.‖ See id. at *3 n.1.

8
agencies published in the Administrative Code. . . . The court‘s determination

shall be subject to review as a ruling on a question of law.‖ Tex. R. Evid. 204.

Even if the trial court erred by not taking judicial notice of the contents of

section 221.9 as of the date of appellant‘s offense, unless appellant has been

harmed by that error, we must still affirm the trial court‘s judgment. See Walker

v. State, 300 S.W.3d 836, 852 (Tex. App.—Fort Worth 2009, pet. ref‘d). When

error is not of a constitutional dimension, rule of appellate procedure 44.2(b)

applies. See Tex. R. App. P. 44.2(b). Under rule 44.2(b), any nonconstitutional

―error, defect, irregularity, or variance that does not affect substantial rights must

be disregarded.‖ Id.

A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury‘s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have Afair assurance that the error did not

influence the jury, or had but a slight effect.@ Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998). In making this determination, we review the record as a whole,

including any testimony or physical evidence admitted for the jury=s

consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with

evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

9
2002). We may also consider the jury instructions, the State=s theory and any

defensive theories, whether the State emphasized the error, closing arguments,

and even voir dire, if applicable. Id. at 355–56. ―[T]he proper inquiry is whether

the trial court‘s error . . . substantially swayed or influenced the jury‘s verdict, or

whether we are left in grave doubt as to whether [the error] substantially swayed

or influenced the jury‘s verdict.‖ Russell v. State, 113 S.W.3d 530, 550 (Tex.

App.—Fort Worth 2003, pet. ref‘d).

Appellant admits that Officer Daniels‘s testimony about appellant‘s

performance on standardized field sobriety tests was properly admitted even if

Officer Daniels was not certified as a practitioner at the time of the tests.8

But appellant contends that he was harmed by the trial court‘s refusal to judicially

notice section 221.9 because the court‘s doing so could have impacted the jury‘s

view of Officer Daniels‘s credibility. Specifically, appellant argues, ―The field

sobriety tests administered by Officer Daniels were a vital part of the State‘s

8
While a practitioner‘s certification in standardized field sobriety testing
traditionally qualified an officer to conduct such tests and to testify about them in
court, such a certification was not required to make an officer‘s testimony about
the tests admissible as long as the officer adequately demonstrated through
training and experience that he was qualified to conduct the tests and to testify
about them. See Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App.), cert.
denied, 513 U.S. 931 (1994); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—
Fort Worth 1996, no pet.); see also Goains, 2011 WL 4537892, at *2. Officer
Daniels became a certified peace officer in 2006. While training in the police
academy, using standardized field sobriety tests, he examined up to forty people
who had consumed various amounts (or no amount) of alcohol to determine
whether they were intoxicated. In 2009, he attended an eight-hour DWI training
seminar. Officer Daniels had investigated approximately twenty DWIs when he
testified.

10
case. . . . Officer Daniels‘[s] credibility was therefore critical. The trial court‘s

ruling deprived Appellant, and the jury, of important information that would have

adversely impacted Officer Daniels‘[s] credibility.‖

We are unconvinced that the trial court‘s judicial notice of section 221.9

was likely to affect jurors‘ views of Officer Daniels‘s credibility in the sense of

raising doubts about his truthfulness, as appellant argues in his brief. The

portions of Officer Daniels‘s testimony that we have quoted above demonstrate

that he was unaware of any biennial recertification requirement, not that he

affirmatively denied that such a requirement existed. Appellant concedes in his

brief that Officer Daniels did not ―appear to know what recertification would

entail.‖ Thus, while judicial notice of section 221.9 could have shown that Officer

Daniels was unaware of a recertification requirement that he did not comply with,

such judicial notice was not likely to indicate to jurors that he lied about the

requirement or was not generally truthful.

Also, we reject appellant‘s argument that the trial court‘s taking judicial

notice of section 221.9 ―had the potential to undermine jurors‘ opinion[s] of

Officer Daniels‘[s] expertise in the area of field sobriety testing.‖ The record does

not reflect what comprised the recertification process, so there were no facts

presented to the jury to establish that by recertifying, Officer Daniels would have

obtained any information or technique related to field sobriety tests that he had

not already learned and was not already applying in his DWI investigations.

Thus, instead of undermining jurors‘ opinions of Officer Daniels‘s expertise in

11
field sobriety testing, judicial notice of section 221.9 was more likely to merely

lessen jurors‘ opinions of his expertise in the certification process, which did not

strongly correlate to the issue of appellant‘s guilt.

Finally, appellant concedes that the evidence of his guilt was ―substantial.‖

The record supports this concession. Tarrant County Sheriff‘s Office Detention

Officer Ty Gregory testified that he had been operating breathalyzer machines for

two and a half years, that he had been certified to operate the machines after

completing a forty-hour class, and that he had administered appellant‘s breath

test in August 2010. Officer Gregory said that before he had given appellant the

breath test, he had watched appellant continually for fifteen minutes to ensure

that appellant had not burped or regurgitated alcohol, which could affect the

results of the test. Officer Gregory explained that the machine was working

properly on the date that appellant used it and that he had never known of a

breathalyzer machine that had problems. The machine had correctly tested a

controlled reference sample of alcohol before appellant used the machine.

Mark Fondren, a senior forensic chemist with the Tarrant County Medical

Examiner‘s Office who is board certified in forensic alcohol toxicology, testified

that he had been managing an alcohol breath testing program for seventeen

years and that when performed correctly, breath tests can be as accurate as

blood tests for measuring alcohol concentrations. Fondren told the jury about the

scientific theory behind breathalyzer machines, and he opined that breathalyzers,

which are used in ―every county in the state of Texas,‖ reliably measure the

12
alcohol in a person‘s body. Fondren confirmed that Officer Gregory was certified

as a breathalyzer operator on the date of appellant‘s breath test, and he stated

that the particular machine that appellant had used had been certified by the

scientific director of the Department of Public Safety (DPS). In fact, Fondren had

tested the machine that appellant used (which had been in service between a

year and eighteen months) in both July and August 2010, and DPS had also

randomly checked the machine to ensure that it was working properly. The

machine was last tested four days before appellant used it, and it passed tests

on five occasions within ten days after appellant used it, but its source of infrared

energy was ―out‖ by August 26, 2010, which was ten days after he used it.9

Fondren testified that if the machine‘s infrared energy source had been

malfunctioning when appellant used the machine, the machine would not have

been operable. Fondren stated that appellant‘s breath samples registered

alcohol concentrations of .245 and .239. He explained that he expects two

breath samples to measure at different levels of alcohol concentration.

Fondren opined that an individual‘s outward appearance may be a poor

indicator of his alcohol concentration because ―[s]ome individuals at very high

levels of alcohol look very good,‖ particularly when they have had significant

experience with drinking alcohol. When appellant‘s counsel asked Fondren

9
Fondren explained that such sources go ―out about every 18 months or
so, which is why [he schedules] preventative maintenance.‖

13
whether he would expect to see outward signs of intoxication in a person who

has a high alcohol concentration, Fondren said,

[I]n a large group, yes. We do categorize various signs. Whether or
not one individual shows that sign . . . , I don‘t know. The only way
to know that is to dose an individual and determine that.

....

With a large number of people, . . . you would expect to see
some of those individuals show those signs.

Fondren explained that ―[w]ithout a doubt,‖ breath tests are a more reliable

measure of intoxication than looking at an individual‘s outward signs of

intoxication. Fondren opined on cross-examination that for a 220-pound person

to reach an alcohol concentration of .24 in three hours of drinking alcohol, the

person would need to consume sixteen to eighteen twelve-ounce beers in that

three-hour period.

It is relevant to our harm analysis, although not necessarily dispositive, that

even if the trial court‘s judicial notice of section 221.9 could have affected Officer

Daniels‘s credibility, the jury could have convicted appellant based only on these

facts, which are unrelated to his performance on field sobriety tests. See Tex.

Penal Code Ann. § 49.01(2)(B) (stating that a person becomes intoxicated by

having an alcohol concentration .08 or more); Rubio v. State, 241 S.W.3d 1, 3

(Tex. Crim. App. 2007) (―Evidence of the defendant‘s guilt should be considered,

but that is only one factor in the [harm] analysis.‖); Bagheri v. State, 119 S.W.3d

755, 762 (Tex. Crim. App. 2003) (explaining that the definitions contained in

14
section 49.01 set forth alternate means by which the State may prove

intoxication); Motilla, 78 S.W.3d at 357–58.

For all of these reasons, we conclude that even if the trial court erred by

not taking judicial notice of the contents of section 221.9 as of the date of

appellant‘s offense, the error did not have a substantial and injurious effect on

the jury‘s guilty verdict, and there is therefore no harm. See Tex. R. App. P.

44.2(b); King, 953 S.W.2d at 271. We overrule appellant‘s first issue.

The State’s Plea for Law Enforcement

In his second issue, appellant contends that the trial court erred by

overruling his objection to part of the State‘s closing argument concerning his

guilt, in which the following exchange occurred:

[THE STATE:] My question to you is, do you want him at that
alcohol level driving next to you? Do you want him driving on the
same streets that your children are driving on with that alcohol level?

[DEFENSE COUNSEL]: I‘m going to object. That‘s improper
argument. Attempts to strike fear into the jury. Has nothing to do
with this case.

THE COURT: Overruled.

[THE STATE]: Do you want him driving with that alcohol level
next to your mother or your father, your husband or your wife? Of
course you don‘t. Driving while intoxicated is a very serious offense.
We know the repercussions that come from this. We just want you
to hold him accountable for what he has done.

We review a trial court‘s ruling on an objection to a jury argument for an

abuse of discretion. See Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—San

Antonio 2009, pet. ref‘d); Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.—

15
Fort Worth 2006, pet. ref‘d). To be permissible, the State‘s jury argument must

be a summation of the evidence, a reasonable deduction from the evidence, an

answer to an argument of opposing counsel, or a plea for law enforcement.

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 2075 (2009); Alami v. State, 333 S.W.3d 881, 891–92 (Tex. App.—Fort

Worth 2011, no pet.).

Appellant contends that a closing argument that ―asks the jurors to

abandon their objectivity and place themselves into the shoes of the victim . . . is

improper.‖ In this case, however, there was no discernible victim, and the State

did not reference one, so the cases cited by appellant are distinguishable. See,

e.g., Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.]

1985, no pet.) (holding that a prosecutor‘s closing argument on punishment was

improper when the prosecutor stated in part, ―Put yourself in the place of that

Anderson family and imagine that was your family that was firebombed in the

middle of the night. Imagine that it was your son that ha[d] his legs on fire. . . .

Would you want mercy shown?‖).

The State argues that under the rationale we recently expressed in Burton

v. State, the argument in this case, instead of being an improper invitation for

jurors to place themselves in the shoes of a victim, was a proper plea for law

enforcement. No. 02-11-00144-CR, 2012 WL 1034920, at *5–8 (Tex. App.—Fort

Worth Mar. 29, 2012, no pet.) (mem. op., not designated for publication). In

Burton, during the prosecutor‘s closing argument in the guilt phase of a trial for

16
DWI, the prosecutor said in part, ―What harm are we trying to prevent with DWIs?

We‘re trying to prevent four Brock cheerleaders from getting killed. We‘re trying

to prevent somebody from driving one way on I–35.‖ Id. at *5 (footnote omitted).

After discussing several decisions from the court of criminal appeals that

approved of similar arguments, we held that because the argument ―informed the

jury that by enforcing the DWI law, the State was seeking to prevent DWI-related

deaths,‖ it could have reasonably been construed as a proper plea for law

enforcement. Id. at *6–8; see Nichols v. State, 504 S.W.2d 462, 465 (Tex. Crim.

App. 1974) (holding that it was ―nothing more than a plea for law enforcement‖

when the prosecutor argued in a DWI case, ―I ask you to find the defendant guilty

and all those like him because we are all going to get in our cars, and we are

going to go home.‖); Strahan v. State, 172 Tex. Crim. 478, 479, 358 S.W.2d 626,

627 (1962) (concluding that a prosecutor properly appealed for law enforcement

in a DWI case when the prosecutor urged the jury to think of people who travel

on highways and stated, ―When you and your family are on these highways

driving you can‘t help but sometimes wonder if some drunk driver is going to hit

you, run over you[,] and kill you.‖).

Based on the rationale and precedent discussed in Burton, we hold that

the trial court did not abuse its discretion by overruling appellant‘s objection to

the State‘s closing argument in this case because the argument may be

reasonably construed as a plea for law enforcement. See 2012 WL 1034920, at

*6–8; see also DeBolt v. State, 604 S.W.2d 164, 169–70 (Tex. Crim. App.

17
[Panel Op.] 1980) (approving of an argument in the guilt phase of a murder case

when the prosecutor stated, ―I‘m mainly concerned [that the defendant] is not out

among the public, living next door to me or next door to you or to anybody else.‖);

Rodgers v. State, 168 Tex. Crim. 386, 387–88, 328 S.W.2d 301, 302 (1959)

(holding that the prosecutor properly pled for law enforcement by arguing in a

DWI case concerning a defendant who was a mail carrier, ―[Y]our verdict in this

case will tell . . . whether you are in favor of letting drunk drivers roam over the

highways . . . without fear of being punished. You‘ll be just as dead, whether you

are killed by a drunk mail carrier or some other drunk.‖); Francis v. State, No. 02-

05-00046-CR, 2006 WL 2034280, at *2 (Tex. App.—Fort Worth July 20, 2006,

pet. ref‘d) (mem. op., not designated for publication) (holding that in the guilt

phase of an aggravated kidnapping trial, the prosecutor properly argued, ―I want

you to be careful for some unsuspecting female who might encounter [the

defendant] at a later date.‖); Piatt v. State, No. 01-00-00102-CR,

2001 WL 361324, at *2 (Tex. App.—Houston [1st Dist.] Apr. 12, 2001, no pet.)

(not designated for publication) (―The State‘s argument that nobody should be

killed by a drunk driver looking like appellant is a proper plea for law

enforcement.‖). We overrule appellant‘s second issue.

Conclusion

Having overruled both of appellant‘s issues, we affirm the trial court‘s

judgment.

18
 TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 21, 2012

19