COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00304-CR
BRADLEY KELTON CRENSHAW APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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This case raises certain issues fundamental to our system of criminal
justice, especially those issues involved in substantial justice and fair play. In a
system in which the indictment or information is to provide notice to a defendant
of the charges against which he must defend himself and there is no ability to
request a bill of particulars, and in which the definition of intoxication has been
held to be evidentiary only and not an element of the offense, can the State in
1
See Tex. R. App. P. 47.4.
fundamental fairness plead only the subjective definition of intoxication in two
different paragraphs, alleging both consumption of alcohol alone and
consumption of alcohol and/or drugs, offer flawed evidence of per se intoxication
by retrograde extrapolation, and then properly obtain an instruction to the jury
that the definition of intoxication includes the per se definition? We hold that the
State may not.
A jury convicted Appellant Bradley Kelton Crenshaw of driving while
intoxicated (DWI). The trial court sentenced him to 120 days’ confinement and
an $850 fine, probated for twenty-four months. In his sole issue, Appellant
challenges the trial court’s jury charge, which instructed the jury on both the
subjective definition and the per se definition of intoxication despite the
information having alleged only the subjective definition. Because we hold that
Appellant suffered some harm from the trial court’s erroneously instructing the
jury on the per se definition, we reverse the trial court’s judgment and remand
this case to the trial court for a new trial.
I. Factual and Procedural Background
In two paragraphs, Appellant was charged by information with ―operat[ing]
a motor vehicle in a public place while [he] was intoxicated by not having the
normal use of his mental or physical faculties by reason of the introduction‖ of
(1) alcohol, or (2) ―alcohol, a controlled substance, a drug, a dangerous drug, or
a combination of two or more of these substances into his body.‖
2
At trial, in anticipation of the State’s introduction of his blood test results
and extrapolation testimony, Appellant objected under rules 401 and 402 that the
evidence would be confusing to the jury and that it was not relevant to whether
he had had the normal use of his faculties at the time of the alleged offense. The
trial court overruled the objection, and Appellant requested and was granted a
running objection.
Southlake police officer Andrew Anderson testified that at about 2:00 a.m.
on February 19, 2007, he arrested Appellant for DWI and that he took Appellant
to the hospital for a blood draw at about 4:00 a.m. Anderson further testified that
when he asked Appellant if he had been drinking, Appellant stated that he had
had bourbon and Coke at 1:00 a.m.
Officer Anderson also testified that he smelled marijuana ―on [Appellant’s]
breath‖ and that he found a leaf of marijuana on the console between Appellant
and the passenger. Was he testifying that Appellant was eating marijuana a la
Alice B. Toklas?2 Officer Anderson made no mention of smelling marijuana
smoke in the car, on Appellant’s clothing, or in his hair. Officer Anderson made
no mention of finding any joint, roach, ashes, or other indication that marijuana
had been smoked. He arrested the passenger for public intoxication. Although
Appellant’s blood was drawn and tested for alcohol, no blood test was performed
2
Alice B. Toklas, The Alice B. Toklas Cook Book 259–60 (Harper Perennial
paperback. ed. 2010) (1954) (garnering notoriety for including a recipe for
brownies that included marijuana as an ingredient).
3
for the presence of marijuana. There was no evidence of how much marijuana, if
any, Appellant ―indulged in the use of,‖ and no evidence of any other controlled
substance, drug, or dangerous drug in Appellant’s system.
Andrew Macey, a forensic scientist with the Texas Department of Public
Safety, testified that the blood sample taken from Appellant approximately two
hours after his stop contained .07 grams of alcohol per 100 milliliters of blood.
Angela Caretta Springfield, chief toxicologist for the Tarrant County Medical
Examiner, testified that under Texas law, .08 is legal intoxication. She further
testified that if a person is 6'1" and 140 pounds, has had ―one or two bourbon
and Cokes,‖ is stopped by the police at 2:06 a.m., and had a blood draw at 4:01
a.m., if the blood test showed a blood alcohol concentration (BAC) of .07, then at
the time of his driving, the person would have had a BAC of at least .08.
During the charge conference, the State objected to the proposed
definition of intoxication, which did not state that a person was intoxicated if he
had an alcohol concentration of .08 or more. Citing State v. Barbernell,3 the
State argued that to give notice to Appellant, it only needed to plead intoxication
in the information. The State argued that the information required no other
references as to an objective or subjective standard and that ―[e]verything after
that is icing on the cake.‖ The State requested the trial court to provide a
3
257 S.W.3d 248, 256 (Tex. Crim. App. 2008).
4
definition in the charge that tracked the language of the information and also
included the .08 per se intoxication standard.
Appellant asserted that the State went beyond the mere plea of
intoxication in the information and alleged loss of normal use of mental and
physical faculties. He argued that the inclusion of the subjective standard in the
information limited his notice, that he relied on the notice in preparation of his
defense, that the addition of the per se definition in the jury charge would be
prejudicial, and that the jury charge should track the language of the information.
The trial court included the per se definition in the jury charge but did not include
it in the application paragraph.
Specifically, over objection, the trial court instructed the jury that
―Intoxicated‖ means:
A. Not having the normal use of mental or physical faculties by
reason of the introduction of alcohol, a controlled substance, a drug,
a dangerous drug, or a combination of two or more of these
substances into the body; or
B. Having an alcohol concentration of 0.08 or more.
The trial court also instructed the jury, without objection, that
You are further instructed that if a defendant indulges in the
use of Marijuana to such an extent that he thereby makes himself
more susceptible to the influence of alcohol than he otherwise would
have been, and by reason thereof becomes intoxicated from recent
use of alcohol, he would be in the same position as though his
intoxication was produced by the use of alcohol alone.
The application paragraph permitted the jury to convict Appellant of DWI if
they found beyond a reasonable doubt that he
5
did not have the normal use of his mental or physical faculties by
reason of the introduction of alcohol into his body, and while so
intoxicated, by reason of the introduction of alcohol into his body,
either alone or by introduction of alcohol, a controlled substance, a
drug, a dangerous drug, or a combination of two or more of these
substances into the body, and on the said date did then and there
drive or operate a motor vehicle in a public place while intoxicated.
II. Charge Error
In his sole issue, Appellant complains that the jury charge erroneously
instructed the jury to convict him based on either the ―subjective‖ definition of
intoxication or the ―per se‖ definition despite the State’s sole reliance on the
subjective allegation in the information. After this case was submitted, this court
requested briefing of the following subsidiary but pertinent matters:4
Whether an indictment that alleges intoxication by lack of normal use
but that does not allege per se intoxication constitutes notice to a
defendant that the State will not seek to convict on a theory of per se
intoxication;
Whether a claim of lack of notice of prosecution on a per se theory of
intoxication requires a motion for continuance or some other request
for additional time to secure an expert in order to preserve the notice
claim or whether the objection to the admission of the evidence
sufficiently preserves the claim;
Whether the reasoning of the court in Cook v. State,5 in holding that
definitions in a jury charge must be limited to the conduct elements,
applies in this case;
4
See Tex. R. App. P. 38.1(f), 38.9; Pena v. State, 191 S.W.3d 133, 138
(Tex. Crim. App. 2006); Leadon v. State, 332 S.W.3d 600, 613 n.3 (Tex.
App.CHouston [1st Dist.] 2010, no pet.); Ramirez v. State, 301 S.W.3d 410, 419
n.6 (Tex. App.CAustin 2009, no pet.); Ramsey v. State, 249 S.W.3d 568, 576 n.5
(Tex. App.CWaco 2008, no pet.); see also Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989).
5
884 S.W.2d 485, 491 (Tex. Crim. App. 1994).
6
Whether the objected-to testimony regarding retrograde
extrapolation complained of in Appellant=s brief was properly
admitted under the Daubert-Kelly standard and, if not, whether its
admission was reversible error in light of the jury instruction;
If the testimony of retrograde extrapolation was improperly admitted
and if there is no properly admitted evidence of per se intoxication,
whether it was error to include per se intoxication in the definition of
intoxication submitted to the jury;
Whether there was sufficient evidence of the amount of marijuana in
Appellant=s system and the effect of that amount of marijuana to
support the synergistic effect instruction and whether the instruction
was sufficient to properly guide the jury in applying the instruction, or
whether the evidence of the extent to which Appellant Aindulge[d] in
the use of marijuana@ and of the effect of that amount of marijuana
was inadequate so that the instruction was not supported by the
evidence or, in light of the evidence, was confusing to the jury; and
Whether it was error to submit to the jury the application paragraph
allowing the jury to convict if it found Appellant was intoxicated as a
result of the introduction of a drug or a dangerous drug when there
was no evidence of the introduction of a drug or a dangerous drug; if
it was not error to submit the application paragraph, why was it not
error; if it was error, whether the objection to the charge included an
objection to that application paragraph; and if it was error, whether
such error was harmless, merely somewhat harmful, or egregiously
harmful.
Appellate review of error in a jury charge involves a two-step process.6
Initially, we must determine whether error occurred.7
In Barbernell, the Texas Court of Criminal Appeals held that an information
alleging neither definition of intoxication nevertheless provided Barbernell with
6
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also
Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).
7
Abdnor, 871 S.W.2d at 732.
7
adequate notice of the charges against him,8 but that is not the situation here.
The State here conscientiously elected to narrow its case by relying solely on the
subjective definition in the information but at trial sought and obtained (over
timely objection) the benefit of both the subjective and per se definitions in the
charge. Because the information did not allege the ―per se‖ theory of
intoxication, there was no notice to Appellant of any intent to offer expert
evidence of retrograde extrapolation and no opportunity for Appellant to secure
an expert to rebut the information. Additionally, although the manner in which a
defendant becomes intoxicated is evidentiary,9 when the State pleads two of
three methods of proving intoxication, analogizing to the ―familiar canon firmly
grounded in Texas jurisprudence . . . the rule of expressio unius est exclusio
alterius, reasoning that . . . inclusion of a specific limitation excludes all other
limitations of that type,‖10 essentially, the State is informing a defendant that it will
not seek to prove intoxication by the third means. This conclusion is particularly
important when the excluded method requires expert testimony, and, therefore,
to effectively meet and dispute the evidence of the State’s expert, a defendant
8
257 S.W.3d at 256.
9
See id.
10
Christian v. State, 286 S.W.3d 63, 66 (Tex. App.—Texarkana 2009, pet.
ref’d) (footnote omitted).
8
must rely on the assistance of an expert and give timely notice of intent to call the
expert in order adequately to prepare for trial.11
The State can prove intoxication by proving per se intoxication or by
proving lack of normal use of mental or physical faculties,12 both evidentiary
matters and not elements of the offense and therefore not required to be pled.13
But when the State gives specific notice that it will prove one form of intoxication
and not the other, the State may be bound by the allegations in the same way
that it would be bound if it had provided the same information in response to a
discovery request, if to hold otherwise would encourage gamesmanship and trial
by ambush.14 Consequently, we hold that because the information specifically
11
See Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093 (1985);
Aldrich v. State, 296 S.W.3d 225, 233 (Tex. App.—Fort Worth 2009, pet. ref’d)
(en banc) (citing Ex parte Briggs, 187 S.W.3d 458, 466–67 (Tex. Crim. App.
2005), in which the court granted habeas relief on ineffective assistance of
counsel grounds because trial counsel failed to investigate or obtain experts for
economic reasons, not as trial strategy, and holding that Aldrich’s trial counsel
wrongly believed that he had no duty to complete any independent investigation);
see generally Mata v. State, 46 S.W.3d 902, 917 (Tex. Crim. App. 2001) (holding
that the trial court abused its discretion by admitting the State’s evidence of
retrograde extrapolation).
12
Tex. Penal Code Ann. §§ 49.01(2), 49.04(a) (West 2011).
13
Barbernell, 257 S.W.3d at 256.
14
See, e.g., Panetti v. Quarterman, 551 U.S. 930, 932, 127 S. Ct. 2842,
2846 (2007) (holding state court failed to provide Panetti the procedures he was
entitled to under the Constitution with respect to his claim that he was
incompetent to be executed; notwithstanding his undisputed substantial threshold
showing of insanity, the state court on repeated occasions conveyed information
to defense counsel that turned out not to be true, provided at least one significant
update to the state without providing the same notice to Panetti, and failed to
9
gave Appellant notice that the State would prove intoxication by proving lack of
normal use of his mental and physical faculties, the information failed to provide
adequate notice to Appellant that the State would prove per se intoxication.
Additionally, because the information specifically gave notice of the State’s intent
to prove intoxication by lack of normal use of his mental and physical faculties,
we hold that Appellant was effectively denied notice of the charges ultimately
leveled against him in the jury charge, and, correspondingly, that the jury charge
erroneously expanded the scope of the charges against him by incorporating the
per se definition of intoxication.15
We further hold that the trial court erred by including the per se definition
because the evidence does not support such inclusion. In Cook, the Texas Court
provide him with an adequate opportunity to submit expert evidence in response
to the report filed by the court-appointed experts); Pope v. State, 207 S.W.3d
352, 360 n.28 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1350 (2007); State
v. Moff, 154 S.W.3d 599, 603 (Tex. Crim. App. 2004); Jaubert v. State, 74
S.W.3d 1, 4–5 (Tex. Crim. App.) (Cochran, J., concurring) (―[T]he letter of the law
is not always a perfect reflection of the spirit of the law, . . . [which] is to ensure
that Texas criminal proceedings are not a contest of clever gamesmanship or
trial by ambush. There is very little formal pretrial discovery mandated in Texas
criminal proceedings, but our Rules of Evidence are drafted to ensure that Texas
criminal practitioners remain gentlemen and gentlewomen who do not spring
evidentiary surprises on their adversaries.‖), cert. denied, 537 U.S. 1005 (2002).
15
See Otto v. State, 273 S.W.3d 165, 170–71 (Tex. Crim. App. 2008)
(holding that the jury charge may not enlarge the offense alleged and authorize
the jury to convict on a basis or theory permitted by the jury charge but not
alleged in the indictment); Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App.
2003); Abdnor, 871 S.W.2d at 738; Castillo v. State, 7 S.W.3d 253, 258–59 (Tex.
App.—Austin 1999, pet. ref’d); see also Webb v. City of Dallas, 211 S.W.3d 808,
820 (Tex. App.—Dallas 2006, pet. denied).
10
of Criminal Appeals held that ―it is error for a trial judge to not limit the definitions
of the culpable mental states as they relate to the conduct elements involved in
the particular offense.‖16 Applying that rule here, we would hold that it is error for
a trial judge to not limit the definitions of intoxication to the facts before the court.
But we do not need to so tax ourselves, because, as the Texas Court of Criminal
Appeals has explained since Barbernell,
Under the Texas DWI statute, intoxication may be proven in
either of two ways: (1) loss of normal use of mental or physical
faculties or (2) alcohol concentration in the blood, breath, or urine of
0.08 or more. The first definition is the ―impairment‖ theory, while
the second is the ―per se‖ theory. They are not mutually exclusive,
and, as long as there is evidence that would support both definitions,
both theories are submitted in the jury charge.17
In Mata, the Texas Court of Criminal Appeals explained, ―Retrograde
extrapolation is the computation back in time of the blood-alcohol level—that is,
the estimation of the level at the time of driving based on a test result from some
later time.‖18 The court noted that a particular absorption rate depends on a
variety of factors, including, inter alia, food in the stomach, gender, weight, age,
amount consumed, and period of consumption.19 The Texas Court of Criminal
16
884 S.W.2d at 491.
17
Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010) (citations
omitted) (emphasis added).
18
46 S.W.3d at 908–09.
19
Id. at 909–10.
11
Appeals also noted that the scientific community is divided over whether
retrograde extrapolation is reliable.20
In the case now before this court, Dr. Springfield offered testimony of
retrograde extrapolation over objection, yet lacked vital information necessary to
an accurate extrapolation result: the period of consumption, whether food was in
the stomach, and an accurate assessment of the amount consumed.
Dr. Springfield opined that at the time Appellant was driving, his BAC
alcohol level was above .08. Yet Dr. Springfield also candidly admitted that,
rather than being ―widely accepted in the scientific community,‖ extrapolation is
the subject of controversy in the scientific community. She testified that ―[o]ne
has to have certain information available in order to make a reliable
extrapolation. Otherwise, there are too many assumptions that are made. It may
not be credible in a particular instance that’s being considered.‖
Dr. Springfield was then given certain assumptions, and her response to
certain assumptions was that the BAC was at .08 or below. When given other
assumptions, she concluded that the BAC would definitely be greater than .08.
She also testified that, although in her opinion a person began losing
normal use of mental or physical faculties at a BAC of .04, ―when someone has a
.10 alcohol level in their body,‖ he or she would not necessarily show signs of
intoxication. Dr. Springfield also testified that such a person would appear
20
Id. at 910.
12
intoxicated to only 50% of people observing them. Does this mean that the
observed person has or has not lost the normal use of his or her mental or
physical faculties?
Additionally, as in Mata, the State did not offer evidence of the reliability of
Dr. Springfield’s retrograde extrapolation testimony that Appellant’s BAC was .08
at the time he was operating the motor vehicle and did not dispute her testimony
that under another set of assumptions, it was below .08. Indeed, Dr. Springfield
did not testify that the reliability of extrapolation was widely accepted in the
scientific community. She testified that extrapolation was not widely accepted in
the scientific community, was controversial, and was reliable only if certain
information, which she did not have, was available. Her conclusion that
Appellant’s BAC was .08 or above was dependent on speculative assumptions
provided to her and not on actual evidence.
When asked if she could use the evidence contained in the record (time of
driving, time of blood draw, and a BAC result of .07) to ―figure out what the
alcohol concentration was at the time of driving,‖ Dr. Springfield replied, ―Yes.
There are some ways of doing that, but . . . I would need other information.‖ The
State then provided various hypothetical situations that Dr. Springfield testified
would definitely result in a BAC of above .08.
Although Dr. Springfield testified that she could state unequivocally that a
person who was 6'1", weighed 140 pounds, had had his last drink at 1:00 a.m.,
and had stated that he had one or two bourbon and Cokes would have had a
13
BAC of above .07 before the police stopped him at 2:06 a.m. if that person also
registered a .07 BAC at 4:01 a.m., she also testified to the contrary. ―When I say
that it would take three to four drinks of that kind to reach a .07, I’m saying if you
could take the alcohol and put it directly into somebody’s bloodstream . . . .‖
[Emphasis added.]
Then the defense added consumption of food to the hypothetical situations
posited originally by the State:
Q: . . . [I]f someone had—over a three-hour period had a bourbon
and Coke in the first hour, ate dinner, and then had another
bourbon and Coke? Would that change how you—
A: Yes.
....
A: Well, if you made a measurement two hours later, the alcohol
would be virtually zero.
In discussing the controversy about extrapolation, Dr. Springfield stated,
―Um, there is controversy about [extrapolation]. One has to have certain
information available in order to make a reliable extrapolation. Otherwise, there
are too many assumptions that are made. It may not be credible in a particular
instance that’s being considered.‖ She then assumed that she had all the
information, but she testified that the results were affected by food absorption
and elimination, information that the record does not reflect that she had. Nor did
she know the amount of alcohol content in any drink that Appellant consumed.
We therefore hold that the trial court additionally erred by including the ―per se‖
14
theory of intoxication in the definition of intoxication provided in the jury charge
because there was no properly admitted evidence of it under the requirements of
Daubert and Kelly.21
III. Harm
Error in the charge, if timely objected to in the trial court, as this error was,
requires reversal if the error was ―calculated to injure the rights of [the]
defendant,‖ which means no more than that there must be some harm to the
accused from the error.22 In other words, a properly preserved error will require
reversal as long as the error is not harmless.23 In making this determination, ―the
actual degree of harm must be assayed in light of the entire jury charge, the state
of the evidence, including the contested issues and weight of probative evidence,
the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.‖24
21
See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 590, 593–
94, 113 S. Ct. 2786, 2795, 2796–97 (1993); Kelly v. State, 824 S.W.2d 568, 573
(Tex. Crim. App. 1992).
22
Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor, 871 S.W.2d
at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh=g); see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)
(AA claim of jury-charge error is reviewed using the procedure set out in
Almanza.@).
23
Almanza, 686 S.W.2d at 171.
24
Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).
15
The evidence of guilt was conflicting. The videotape of the arrest
contradicted some of Officer Anderson’s written statements in his report.
Appellant did not stumble, and his speech was not slurred. Although acting
nervous has been held to contribute to reasonable suspicion to detain a person,25
here, Officer Anderson testified that Appellant was not nervous, and Officer
Anderson believed that the absence of nervousness was a suspicious
circumstance.
The videotape does not reveal whether Appellant was intoxicated at the
time he operated a motor vehicle, nor does it reveal that Appellant was
intoxicated at the time the videotape was made.
Further, the rest of the jury charge is problematic.26 The trial court
improperly instructed the jury on how it was to consider evidence of marijuana.
Although Officer Anderson found a marijuana leaf and said that he smelled
marijuana on Appellant’s breath, no blood test was conducted to determine
whether there was any marijuana in Appellant’s blood stream or, if so, how much.
Further, there was no evidence that the amount of marijuana in Appellant’s
system, if any, would have a certain or, indeed, any effect on the action of
alcohol in Appellant’s system. ―Texas courts are forbidden from instructing the
jury on any presumption or evidentiary-sufficiency rule that does not have a
25
See, e.g., Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002).
26
See McClinton v. State, 121 S.W.3d 768, 769 (Tex. Crim. App. 2003)
(Cochran, J., concurring).
16
statutory basis. Such an instruction is an improper comment on the weight of the
evidence.‖27
Additionally, the application paragraph improperly allowed the jury to
convict if they found that Appellant was intoxicated as a result of the introduction
of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of
two or more of these substances. There was no evidence from any source of the
presence of any drug or dangerous drug in Appellant’s system at the time he
drove or at any time after he was detained. There was, therefore, no evidence to
support that instruction or to support a conviction on that basis. 28 When the
evidence is insufficient to support a conviction, the trial court should eliminate
that theory of conviction from the jury’s consideration and not include it in the
charge.29
Accordingly, applying the test required by Almanza, we hold that Appellant
suffered some harm from the trial court’s erroneous definition of intoxication in
the jury charge. We sustain his sole issue.
27
Kirsch, 306 S.W.3d at 747 (citing Brown v. State, 122 S.W.3d 794, 799–
800 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 938 (2004)).
28
See, e.g., Otto, 273 S.W.3d at 169–70.
29
Griffin v. United States, 502 U.S. 46, 60, 112 S. Ct. 466, 474 (1991);
Payne v. State, 194 S.W.3d 689, 698 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); see also Guevara v. State, 191 S.W.3d 203, 206–08 (Tex. App.—San
Antonio 2005, pet. ref’d).
17
IV. Conclusion
Having sustained Appellant’s sole issue, we reverse the trial court’s
judgment and remand this case to the trial court for a new trial.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
MCCOY, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 28, 2011
18