COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-433-CR
RANDY WILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Randy Wilson appeals his conviction for murder. In four points,
Wilson argues that the evidence is legally and factually insufficient to sustain
his conviction; that the trial court abused its discretion by allowing the State to
introduce photographs of the deceased’s body; and that the trial court abused
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… See Tex. R. App. P. 47.4.
its discretion by allowing a witness to testify that the victim had worked as a
prostitute for Wilson prior to her murder. We will affirm.
II. B ACKGROUND
In the early morning, August 19, 2007, two fishermen saw what they
believed to be a floating deer carcass in Lake Arlington. What they found was
Brittany Rapoza’s partially nude, heavily decomposed body. The fishermen
called 9-1-1, and the Arlington Police Department investigated.
After the fishermen called 9-1-1, Officer Leonor Cerda arrived, and the
fishermen escorted him to the body. Cerda said that due to the bloated and
decomposed condition of the body, which was laying face down in the lake, it
was initially difficult to determine whether the body was male or female. After
retrieving the body from the lake, officers were able to determine that the body
was female.
Detective Jim Ford also arrived at the lake that day. Ford testified that
the body had no identifying marks and that no forms of identification were
found on the body. Ford again observed the body once it had been delivered
to the medical examiner. The body had multiple stab wounds. Initially, Ford
researched missing persons databases but was unable make an identification.
Ford then issued a press release soliciting information. According to Ford, a
witness—Jenny Yeager—came forward on October 8, 2007, with information
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regarding the body. Yeager identified the body as being that of Brittany
Rapoza. The next day, Yeager escorted Ford to a location near where Rapoza’s
body was found. There, in a storm drain, Ford collected a portion of a burned
shoe. Ford contacted the Tarrant County Medical Examiner’s Office and
requested that they conduct DNA testing on the shoe.
Yeager also accompanied Ford to McCray Park—a park located on Lake
Arlington near where Rapoza’s body was found. There, along a path and near
an embankment, Yeager pointed out “an orang[]ish-colored bathing suit strap.”
In addition to information pertaining to Rapoza’s murder, Yeager also provided
Ford with additional names of witnesses—Cyndi Garcia, Laura Mallard, Delicia
Traylor, and Joseph Grant. Yeager even personally escorted Ford to Grant’s
residence.
Based on information from Yeager, Garcia, and Mallard, Ford obtained
arrest warrants for Wilson and Grant. Because Grant cooperated, Ford did not
arrest Grant; rather, Ford interviewed Grant twice. Grant provided further
information about Rapoza’s murder.
At trial, Grant identified Wilson as the man he knew by the nickname,
“C.” Grant met Wilson at the house of Grant’s sister, along with Garcia,
Yeager, and Rapoza in August 2007. Grant said that he, Wilson, Rapoza,
Yeager, and Garcia drove to Lake Arlington in the late evening of August 13,
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2007. When they arrived, Wilson and Rapoza got out of the car and walked
away by themselves. Roughly fifteen minutes later, Grant went to find them.
When he found them, Grant saw Wilson and Rapoza fighting. Grant testified
that he was going to break up the fight when he noticed that Wilson had a knife
in his hand. Grant said that he witnessed Wilson repeatedly stab Rapoza with
the knife. According to Grant, Wilson then kicked Rapoza in the stomach and
kicked her over a small ledge and into the lake. Grant said that he attempted
to “get her out [of] the lake” and tried to push her up a ledge. Rapoza was
trying to climb up the ledge when Grant either let her go or dropped her
because Wilson was walking toward him. Grant became scared and ran back
to the car. Wilson eventually returned to the car covered in blood, and the
remaining four returned to the house of Grant’s sister. Grant testified that
nothing was said among the four about what had happened to Rapoza.
A couple of days later, Grant said that he, Wilson, Yeager, Garcia, and his
sister returned to Lake Arlington. The five walked to the crime scene, which
was now surrounded by yellow crime scene tape, and Wilson “started kicking
some dirt around pointing [out] where [Rapoza’s] blood was by [a] tree.” Grant
said he also saw Wilson throw a “flip-flop” into the lake. Grant said that after
he went back to the parking lot, Wilson returned with a beer can and a bloody
cigarette butt.
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Yeager testified that she met Wilson while living in an abandoned home
in the spring of 2007. Yeager referred to Wilson as her “boyfriend.” According
to Yeager, she and Wilson moved in together shortly after meeting, living with
another of Wilson’s girlfriends and her children.
Yeager said that she and Wilson first met Rapoza in April or May 2007.
Yeager and Wilson had seen Rapoza walking with “seven to ten guys” along a
street where many homeless people tend to congregate. Wilson asked Rapoza
“if she needed a job, if she wanted to work for him.” Yeager said that Wilson
became Rapoza’s “pimp” and that Rapoza “would be the prostitute and he
would provide her with protection . . . food and shelter and she would go out
and make the money.” Wilson and the three women lived together. By
Yeager’s account, Wilson did not allow Rapoza to keep any of the money she
earned prostituting; rather, he would buy Rapoza alcohol, and “if she was
lucky,” he would buy her cigarettes.
Yeager said that Wilson became displeased and violent with Rapoza
because he thought she “wasn’t making enough money.” According to Yeager,
“[W]hen [Rapoza] wouldn’t feel like going out, or when she didn’t bring the
right amount of money back, you know, she would - - if - - it started out, you
know, pushing and slapping and shoving and strangling, and moved on to . . .
pretty brutal beatings.”
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Yeager testified that on the day Rapoza was killed, Rapoza called Wilson.
After the call, Wilson left in the early evening to meet her. Wilson returned
after Yeager had gone to sleep; but when she woke up, Yeager said that Wilson
had “blood all over his shoes [and] blood [spattered] all over his glasses.”
Yeager described Wilson’s shoes as being “completely blood soaked,
completely.” She said he also had blood on his clothing. Yeager said that
Wilson admitted to killing Rapoza:
[H]e said he took her down to the lake, and he told her that - - that
she was going to get to [perform oral sex]. And so, when she
started to take off her top, he told me that he stabbed her in the
heart, and that he stabbed her in the face and that he stabbed her
in the breasts, and he stabbed her in the butt, he stabbed her in her
vagina. That’s what he told me.
The day after the murder, Yeager accompanied Wilson to the scene of the
crime to retrieve Wilson’s cell phone, which he had left there. Yeager said that
Wilson also picked up Rapoza’s sunglasses, a beer can, and some cigarette
butts. The couple returned to the lake four to five days later along with Garcia
and Grant. Yeager said that the purpose of their return to the lake was to “see
if there was any possible evidence left.” Similar to Grant’s account, Yeager
testified that they found one of Rapoza’s shoes but said that it was Grant, not
Wilson, who picked it up and threw it into the lake. Yeager also witnessed
Wilson attempt to destroy his own bloody shoes. According to Yeager, Wilson
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poured gasoline on the shoes and set them on fire and then “kicked them down
into the drainage ditch”—the same ditch where Ford collected a portion of a
burned shoe. Consistent with Ford’s testimony, Yeager said that she went to
the police on October 8, 2007, and told them what she knew of Rapoza’s
murder. She also said that she took officers to the crime scene and to the
location where she watched Wilson burn his shoes.
Delicia Traylor, an acquaintance of Yeager, testified that Wilson told her
that he had “killed [a young girl] over a respect thing . . . because that’s how
much he loved [Yeager], and [that] it was at [Lake Arlington].” On cross-
examination, Traylor said that she did not remember the specifics of her
conversation with Wilson. On redirect examination, Traylor clarified that she
told Ford that Wilson told her that he had dumped a body in Lake Arlington.
Carolyn Van Winkle, a DNA analyst for the Tarrant County Medical
Examiner’s Office, testified that she analyzed over thirty samples that Ford had
submitted for testing in October 2007. Van Winkle tested a pair of eyeglasses,
a bikini strap, some seat covers from the car driven to the lake by the party that
included Wilson and Rapoza, and carpet from the floorboard of the same
vehicle. Van Winkle did not recover any DNA or blood evidence from these
items. But Van Winkle did find blood present on a burned shoe that was found
in the drain where Yeager had taken Ford. Van Winkle also recovered a partial
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DNA profile (four of fifteen markers) from the shoe. Van Winkle compared the
DNA recovered from the shoe with DNA taken from Rapoza’s body—the two
samples were a statistical match.
Dr. Gary Sisler, a deputy medical examiner, performed the autopsy on
Rapoza’s body. Sisler testified that he “found multiple stab wounds on the
body” that were likely caused by a knife or bladed instrument. He said that the
stab wounds were the cause of death given that approximately eleven of the
stab wounds would have caused excessive blood loss and would have been
fatal. Sisler ruled Rapoza’s death a homicide. But due to the advanced
decomposition, Sisler was unable to determine a time of death.
The State indicted Wilson for murder. The indictment included a repeat
offender notice. Wilson pleaded not guilty to the charge of murder and true to
the enhancement paragraph. A jury found Wilson guilty and assessed
punishment at life imprisonment. This appeal followed.
III. S UFFICIENCY OF THE E VIDENCE
In his first and second points, Wilson argues that the evidence is legally
and factually insufficient to convict him of murder. Specifically, Wilson
contends that the State failed to prove beyond a reasonable doubt that he
committed the offense as set out in the indictment. We disagree.
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A. Law on Murder
A person commits murder if he intentionally or knowingly causes the
death of an individual or intends to cause serious bodily injury and commits an
act clearly dangerous to human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). In its indictment, the
State charged that Wilson did “intentionally or knowingly cause the death of an
individual, [Rapoza], by stabbing her with a knife or a bladed instrument.”
Alternatively, the State charged that Wilson did “intentionally, with the intent
to cause serious bodily injury to [Rapoza], commit an act clearly dangerous to
human life, namely, stab [Rapoza] with a knife or a bladed instrument, which
caused” her death.
B. Legal Sufficiency Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order 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); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
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reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
C. Factual Sufficiency Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
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2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704–05
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record
clearly reveals that a different result is appropriate, we must defer to the jury’s
determination of the weight to be given contradictory testimonial evidence
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because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was
delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is
necessary to correct manifest injustice, we must give due deference to the
factfinder’s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Id. at 9. Our deference in this regard
safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.
An opinion addressing factual sufficiency must include a discussion of the most
important and relevant evidence that supports the appellant’s complaint on
appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
D. Legally and Factually Sufficient Evidence
Viewing the evidence in the light most favorable to the verdict, the record
demonstrates that there was legally sufficient evidence that Wilson murdered
Rapoza. In this case, there was an eyewitness who testified that Wilson
stabbed Rapoza multiple times and kicked her body into the lake. See Aguilar
v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (stating that a conviction
may be supported by testimony of only one eyewitness). Wilson’s girlfriend
testified that he was wearing blood-soaked shoes, bloody clothing, and glasses
with blood spattered on them the morning after Rapoza was killed. The
girlfriend also testified that Wilson described having stabbed Rapoza multiple
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times. She also took police to a location where a burned shoe was found that
had DNA consistent with Rapoza’s DNA on it. The girlfriend explained how
Wilson had poured gasoline on his blood-covered shoes and had set them on
fire at the location where the shoe was found. See Lee v. State, 866 S.W.2d
298, 302 (Tex. App.—Fort Worth 1993, pet. ref’d) (“It is consequently a well
accepted principle that any conduct on the part of a person accused of a crime
subsequent to its commission, which indicates a ‘consciousness of guilt’ may
be received as a circumstance tending to prove that he committed the act with
which he is charged.”). Another witness testified that Wilson had admitted to
killing a young lady at Lake Arlington. And multiple witnesses testified that
they had accompanied Wilson back to Lake Arlington after Rapoza was
murdered and that Wilson had attempted to further conceal evidence of the
crime. See id. The medical examiner testified that Rapoza had been stabbed
multiple times and that a number of the stab wounds would have been fatal.
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that a rational trier of fact could have found that the evidence at trial was
sufficient to establish the elements of murder, as spelled out in the indictment,
beyond a reasonable doubt. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Clayton, 235 S.W.3d at 778; see also Tex. Penal Code Ann. § 19.02(b)(1)–(2)
(providing elements of murder). Accordingly, we hold that the evidence is
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legally sufficient to support Wilson’s conviction. We overrule Wilson’s first
point.
Furthermore, we have reviewed the evidence in a neutral light, and we
find no objective basis in the record for holding that the jury’s verdict was
clearly wrong or manifestly unjust or that it was contradicted by the great
weight and preponderance of the evidence. See Lancon, 253 S.W.3d at 704;
Watson, 204 S.W.3d at 414–15, 417. Rather, the evidence presented at trial
was sufficient to support the verdict and included the testimony of an
eyewitness that Wilson had stabbed Rapoza; a witness who saw Wilson in
bloody clothing the day after Rapoza’s murder; witnesses who testified that
Wilson had returned to conceal and destroy evidence; and witnesses who
testified that Wilson had admitted to killing Rapoza at the location where her
body was found. Additionally, no contrary evidence exists—and Wilson points
to none in the record—that would render the evidence factually insufficient
under the applicable standard of review. See Lancon, 253 S.W.3d at 704;
Watson, 204 S.W.3d at 414–15, 417. Accordingly, we hold that the evidence
is factually sufficient to support Wilson’s conviction. We overrule Wilson’s
second point.
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IV. O BJECTED-TO P HOTOGRAPHS
In his third point, Wilson argues that the trial court abused its discretion
by overruling his objection to the admission of photographs that the State
introduced depicting the condition of Rapoza’s body as it was found in Lake
Arlington. Specifically, Wilson argues that the “photographs of the deceased
did no more than to inflame the jury in sympathy for the State.”
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence. Tex. R. Evid. 403.
Once a rule 403 objection is made, the trial court must weigh the
probative value of the evidence to determine if it is substantially outweighed by
its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169
(Tex. Crim. App. 1997). A rule 403 balancing test includes the following
factors: (1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency
of the evidence to be given undue weight by a jury that has not been equipped
to evaluate the probative force of the evidence, and (6) the likelihood that
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presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d
637, 641–42 & n.8 (Tex. Crim. App. 2006).
The rules of evidence favor the admission of relevant evidence and carry
a presumption that relevant evidence is more probative than prejudicial. Jones
v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S.
832 (1997). When determining whether evidence is admissible under rule 403,
we do not consider just whether the evidence is more prejudicial than probative,
we consider whether the probative value is substantially outweighed by the
danger of unfair prejudice. Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim.
App. 2006), cert. denied, 549 U.S. 1224 (2007). Our highest criminal court
has observed that we will reverse the trial court’s judgment under rule 403
“rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d
841, 847 (Tex. Crim. App. 1999). And this is as it should be—it is the trial
judge, in the midst of the trial itself, who is in the best position to weigh the
probative versus prejudicial value of evidence on Themis’s scales of justice.
See id. As long as the trial court’s ruling is within the zone of reasonable
disagreement and is correct under any theory of law applicable to the case, it
must be upheld. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007).
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Wilson complains about the admission of State’s Exhibits 5 through 10.
State’s Exhibit 5 demonstrates Rapoza as she was first seen by the fishermen.
State’s Exhibit 6 shows the heels of Rapoza’s feet, revealing severe
decomposition and maggot infestation. State’s Exhibit 7 depicts one of
Rapoza’s hands in a decomposed state. State’s Exhibit 8 shows Rapoza’s
abdomen area and a sanitary napkin. State’s Exhibit 9 shows Rapoza’s
underwear. State’s Exhibit 10 depicts the front side of Rapoza’s partially nude
body.
Here, all of the photographs were 5" X 7"; and the State concedes they
were in color at trial although our record contains black-and-white versions.
None of the photographs depicted a totally nude body, although State’s
Exhibit 10 shows Rapoza’s partially decomposed breasts. But State’s
Exhibits 9 and 10 were relevant to corroborate Cerda’s testimony that it was
initially difficult to determine if the body was male or female. State’s
Exhibits 6, 7, and 8 all show varying degrees of decomposition and maggot
infestation and also demonstrate what little identifying material was available
to the police. This corroborated Ford’s testimony that initial identification of the
body was difficult.
These six photographs, which Ford testified accurately depicted the crime
scene, were not exactly alike; were not unnecessarily duplicative; took almost
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no time to introduce into evidence; and had very little, if any, potential to
impress the jury in an irrational but indelible way. The photographs were
relevant to show the circumstances of the killing and the crime scene at the
time Rapoza’s body was found. Although the photographs of Rapoza’s body
at the crime scene may be somewhat disturbing, their disturbing effect is due
to the circumstances of the crime rather than any particular images depicted in
the photographs. The trial court’s ruling that the probative value of State’s
Exhibits 5 through 10 outweighed any prejudicial effect was certainly within the
zone of reasonable disagreement. See Winegarner, 235 S.W.3d at 790.
Therefore, the trial court did not abuse its discretion by overruling Wilson’s
objection and admitting these photographs into evidence. We overrule Wilson’s
third point.
V. O BJECTED-TO T ESTIMONY
In his fourth point, Wilson alleges that the trial court abused its discretion
by admitting testimony about Rapoza’s having worked for him as a prostitute
over his relevance objections. The State responds that the testimony was
relevant because it explained Rapoza and Wilson’s relationship, demonstrated
an escalating cycle of abuse by Wilson toward Rapoza, and helped explain to
the jury that Wilson “loved to be in control of other people and that he became
violent when he felt he was losing control over someone.”
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Questions of relevance are left largely to the trial court, relying on its own
observations and experience, and the trial court will not be reversed absent an
abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.),
cert. denied, 510 U.S. 966 (1993). Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence.” Tex. R. Evid. 401. All relevant evidence is admissible except as
otherwise provided by constitutions, statutes, or rules. Tex. R. Evid. 402.
We first note that Wilson does not now, nor did he at trial, voice a
character evidence objection—his only objection is that Yeager’s testimony that
Rapoza worked for him as a prostitute and that Wilson became violent when
she failed to earn sufficient amounts of money was irrelevant. Compare Tex.
R. Evid. 404(a) with Tex. R. Evid. 401.
Yeager testified that Wilson initially recruited Rapoza to work for him as
a prostitute. Yeager also testified that Wilson maintained control of any monies
Rapoza earned. Yeager said that Wilson would become violent if Rapoza failed
to earn enough money or did not feel like prostituting herself. She even
testified that the cycle of violence evolved from “slapping” to the point of
“pretty brutal beatings.” This testimony tended to show that Wilson was
violent toward Rapoza in the past and that his violence toward her was
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escalating; therefore, the testimony was relevant to the charge of murder. See
Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon 2005) (“In all prosecutions for
murder, the state . . . shall be permitted to offer testimony as to all relevant
facts and circumstances surrounding the killing and the previous relationship
existing between the accused and the deceased . . . to show the condition of
the mind of the accused at the time of the offense.”). Thus, the trial court did
not abuse its discretion by admitting Yeager’s testimony regarding Rapoza’s
having worked for Wilson as a prostitute. See Reed v. State, 59 S.W.3d 278,
280 (Tex. App.—Fort Worth 2001, pet. ref’d) (“We review a trial court’s
decision to admit or exclude evidence under an abuse of discretion standard.”).
We overrule Wilson’s fourth point.
VI. C ONCLUSION
Having overruled each of Wilson’s four points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 28, 2010
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