Joseph Frank Tooker v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00348-CR

Joseph Frank Tooker, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 9622, HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

After Officer Fidel Morua discovered methamphetamine during a traffic stop,

Joseph Frank Tooker was charged in a single indictment with one count of possession of less

than one gram of a controlled substance (methamphetamine) and with one count of tampering

with or fabricating physical evidence by “intentionally and knowingly conceal[ing] a baggie of

methamphetamine . . . with intent to impair its availability as evidence.” See Tex. Health & Safety

Code §§ 481.102(6) (listing methamphetamine as substance included in “Penalty Group 1”), .115(a),

(b) (providing that person commits offense by possessing “a controlled substance listed in Penalty

Group 1” and that offense is state-jail felony if amount of controlled substance is “less than one

gram”); Tex. Penal Code § 37.09 (a), (c) (setting out elements of offense of tampering with physical

evidence and providing that offense is, in general, third-degree felony). At the end of the guilt-or-

innocence phase, the jury found Tooker guilty of both offenses, and Tooker elected to have the
district court assess his punishment. At the end of the punishment phase, the district court determined

that Tooker should be imprisoned for two years for the possession count and for five years for the

tampering count but elected to place Tooker on community supervision for both convictions, and the

district court rendered its judgments of conviction accordingly. See Tex. Penal Code §§ 12.34-.35

(setting out permissible punishment ranges for third-degree and state-jail felonies). In two issues on

appeal, Tooker contends that the evidence was legally insufficient to support his convictions. We

will affirm the district court’s judgment of conviction for possession of a controlled substance,

modify the judgment of conviction for tampering with evidence to correct a clerical error, and as

modified, affirm the judgment of conviction for tampering with evidence.

BACKGROUND

During a traffic stop, Tooker was arrested after methamphetamine was discovered

by the investigating officers. Following the arrest, a trial was held in which the State called several

witnesses to the stand, including Chelsa Hazle, who was Tooker’s girlfriend at the time of the

incident, and Officer Morua, who initiated the traffic stop, and Tooker elected to take the stand and

testify on his own behalf.

In her testimony, Hazle explained that on the day in question she was riding as a

passenger in her car with her boyfriend, Tooker, when Officer Morua initiated a traffic stop for

speeding. Further, she explained that Officer Morua asked for her and Tooker’s driver’s licenses,

that Officer Morua learned that there were warrants out for her arrest, that Officer Morua placed her

under arrest, and that after she was arrested, she stood between her car and Officer Morua’s police

car with Tooker. Further, she recalled that she and Tooker had purchased methamphetamine prior

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to the traffic stop, that she had methamphetamine “stashed in [her] bra,” that she pulled “it out of

[her] bra and slipped it into” Tooker’s hands while they were hugging, and that Tooker knew that

she had methamphetamine in her bra because he had seen her place methamphetamine in her bra “on

other trips.” When describing why she handed Tooker the methamphetamine, Hazle testified that

she did it “[b]ecause [she] knew that [she] was going to jail, and if they had found it on me in the

jail, then it would have been a charge of bringing drugs into a correctional facility.” In addition,

Hazle explained that she was also charged and sentenced for possession of methamphetamine as a

result of this incident but that she was not asked to testify in this case until after she had already been

sentenced. Moreover, Hazle admitted that she had been arrested for possession of methamphetamine

before the incident at issue and that Tooker was present during one of those prior arrests.

After Hazle finished her testimony, Officer Morua was called to the stand. In his

testimony, Officer Morua explained that during the traffic stop, he learned that there was “an active

warrant” for Hazle “for possession of a dangerous drug.” Further, he recalled that Hazle became

upset when she learned that she was going to be arrested based on the warrant, that he asked Tooker

if he would like to stand by Hazle to comfort her, and that Tooker went to stand with Hazle between

her car and the police car. Moreover, Officer Morua related that when he later told Tooker to say

goodbye to Hazle, Tooker “reached to give her a hug and a kiss, but his arms came to the front

of him and front of” Hazle. In addition, Officer Morua testified that Tooker kept “his hands in

the front of” Hazle. Furthermore, Officer Morua explained that after Tooker returned to the car,

Officer Morua found “a baggy with some crystalized substance in it” on the ground by Hazle and

that later testing performed on the substance revealed that it was methamphetamine. Moreover,

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Office Morua testified that his dashboard camera and his body camera were working on the day in

question and captured much of the exchange, and he explained that the recording from the dashboard

camera captures Tooker “reach[] in front of [Hazle] with his hands . . . and . . . . move[] his right

hand over” before “the baggy of meth f[e]ll to the ground.” In addition, Officer Morua testified

that he watched the recording from the dashboard camera in slow motion and that the recording

shows Tooker drop the bag of methamphetamine.

During Officer Morua’s testimony, the two recordings were admitted into evidence

and played for the jury. The videos are generally consistent with Officer Morua’s testimony,

document that the traffic stop occurred at night, and show an officer assisting Officer Morua place

Hazle in handcuffs with her hands in front of her after the officers confirmed that there was an

active warrant for Hazle’s arrest. Further, the video from the dashboard camera shows Tooker

saying goodbye to Hazle, kissing Hazle, grabbing Hazle’s hand and holding it for about five seconds

near her chest, and then tossing something to the side away from where the officers were standing.

In addition, the video documents how Tooker did not appear surprised or angry when he took

something from Hazle’s hand; on the contrary, the video shows that Tooker continued to kiss Hazel

after tossing the item and did not inform the police about the object. Finally, the video chronicles

how neither officer saw the baggie drop, how the officers continued to talk with Hazle as Tooker

returned to the car, and how Officer Morua then discovered a baggie on the ground near where

Tooker and Hazle had been standing, which contained a crystalline substance.

In his case in chief, Tooker testified on his own behalf. During his testimony, Tooker

stated that he was aware that Hazle “had a drug habit,” was present when she was arrested previously,

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and asked Hazle after they were pulled over by Officer Morua if she had any drugs in her car, but

he explained that he did not know that Hazle had methamphetamine or any illegal substances on the

day in question and denied purchasing methamphetamine with Hazle. When discussing the contents

of the recordings, Tooker stated that Hazle put something in his hand, that he “had an idea” about

what the item was when “it hit [his] hand,” that he “didn’t want anything to do with it,” and that he

“drop[ped] it.” Further, Tooker related that after dropping the baggie, he did not try to conceal it

or otherwise tamper with it even though he could have easily put it in his pocket. Similarly, Tooker

testified that he never intended to possess or conceal the drugs. During his cross-examination,

Tooker denied attempting to conceal the baggie and stated that he dropped the baggie because he

did not want to be implicated for the crime and that he did not tell the officers what happened after

they found the baggie because he did not want “to tell on [his] girlfriend.” When describing his

interaction with Hazle, Tooker stated that his hand was in front of Hazle rather than behind her

because he was not trying to hug her and was instead trying to hold her hand and kiss her.1

At the conclusion of the guilt-or-innocence phase, the district court gave the jury the

jury charge. The jury charge provided instructions for the offenses of possession of a controlled

substance and tampering with evidence and also contained instructions regarding when an individual

may be held responsible for an offense committed by another person. In addition, the charge stated

that Hazle was an accomplice and explained to the jury that additional requirements must be met

before an accomplice’s testimony may be used to convict someone of an offense.

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During Tooker’s testimony, a portion of a recording from the body camera from the officer
assisting Officer Morua was played for the jury. The content of that recording is consistent with that
of the two recordings admitted into evidence during the State’s case in chief and summarized above.

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 Following the closing arguments by both parties, the jury found Tooker guilty of

both offenses.

STANDARD OF REVIEW AND GOVERNING LAW

Both issues on appeal concern the sufficiency of the evidence supporting Tooker’s

convictions. Under a legal-sufficiency standard of review, appellate courts view the evidence in the

light most favorable to the verdict and 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 (1979). When performing this review, an appellate court must bear in mind that it is the

factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make “reasonable

inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc. art. 36.13

(explaining that “jury is the exclusive judge of the facts”). Moreover, appellate courts must “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). Furthermore, appellate courts presume that conflicting inferences

were resolved in favor of the conviction and “defer to that determination.” Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that “direct and

circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor” and “can be sufficient” on its own “to establish

guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The

evidence is legally insufficient if “the record contains no evidence, or merely a ‘modicum’ of

evidence, probative of an element of the offense” or if “the evidence conclusively establishes a

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reasonable doubt.” Id. at 107 (quoting Jackson, 443 U.S. at 320). Furthermore, reviewing courts

“measure the sufficiency of the evidence by the so-called hypothetically correct jury charge, one

which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant is tried.” See DeLay v. State, 465 S.W.3d 232,

244 n.48 (Tex. Crim. App. 2014).

As discussed above, the jury instruction explained that Hazle was an accomplice

to the offenses in question. Cf. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006)

(providing that person indicted for same offense is accomplice as matter of law). “A conviction

cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending

to connect the defendant with the offense committed; and the corroboration is not sufficient if it

merely shows the commission of the offense.” Tex. Code Crim. Proc. art. 38.14; see also Medina

v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (noting that “[a] person is an accomplice if he

participates before, during, or after the commission of the crime and can be prosecuted for the

same offense as the defendant or for a lesser-included offense”). “When reviewing the sufficiency

of non-accomplice evidence under article 38.14, we decide whether the inculpatory evidence

tends to connect the accused to the commission of the offense.” Smith v. State, 332 S.W.3d 425, 442

(Tex. Crim. App. 2011); see Roys v. State, 416 S.W.3d 229, 234 (Tex. App.—Amarillo 2013, pet.

ref’d). In performing this analysis, “the reviewing court eliminates all of the accomplice testimony

from consideration and then examines the remaining portions of the record.” Castillo v. State,

221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The non-accomplice evidence is viewed “in the light

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most favorable to the verdict,” Knox v. State, 934 S.W.2d 678, 686 (Tex. Crim. App. 1996), and it

“need not directly link the defendant to the crime” or “‘establish his guilt beyond a reasonable

doubt’” on its own, Roys, 416 S.W.3d at 234 (quoting Castillo, 221 S.W.3d at 691). Although “the

accused’s mere presence in the company of the accomplice before, during, and after the commission

of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence,

coupled with other suspicious circumstances, may tend to connect the accused to the offense.”

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). “Even apparently insignificant

incriminating circumstances may sometimes afford satisfactory evidence of corroboration.” Id.

“[T]he tends-to-connect standard does not present a high threshold.” In re C.M.G., 905 S.W.2d 56,

58 (Tex. App.—Austin 1995, no writ). Moreover, as specified in the jury charge in this case, “[a]

person is criminally responsible for an offense committed by the conduct of another if . . . acting with

intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense.” Tex. Penal Code § 7.02(a)(2).

DISCUSSION

Possession of a Controlled Substance

In his first issue on appeal, Tooker asserts that the evidence was insufficient to

support his conviction for possession of a controlled substance. On appeal, Tooker does not

challenge the sufficiency of the evidence establishing that the substance found by Officer Morua was

methamphetamine. Instead, Tooker contends that “[t]he only testimonial evidence that implicated

Tooker came from his girlfriend Hazle” but that there was insufficient corroborating evidence

linking him to the methamphetamine and that no evidence or reasonable inferences from the

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evidence supports “the jury’s ultimate conclusion that Tooker possessed methamphetamine on the

night in question.”2 Moreover, he contends that “his so-called ‘possession’ of the contraband was

fleeting and involuntary” and that “he abandoned the illicit drug” when he realized what it was.

Furthermore, Tooker highlights that it was Officer Morua who suggested that he stand with Hazle

2
When challenging the evidence supporting his conviction, Tooker discusses the fourteen
factors that several courts have relied on when determining if the evidence was sufficient to establish
that a defendant possessed a controlled substance when the evidence is not found on the defendant’s
person and is found in the presence of others, and Tooker then argues that only the first three of those
factors supported the conviction here. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.
App. 2006). In particular, the court of criminal appeals has noted that the following factors “may
circumstantially establish the legal sufficiency of the evidence to provide a knowing ‘possession’”:

“(1) the defendant’s presence when a search is conducted; (2) whether the contraband
was in plain view; (3) the defendant’s proximity to and the accessibility of the
narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other contraband
or drug paraphernalia were present; (11) whether the defendant owned or had the
right to possess the place where the drugs were found; (12) whether the place where
the drugs were found was enclosed; (13) whether the defendant was found with a
large amount of cash; and (14) whether the conduct of the defendant indicated a
consciousness of guilt.”

Id. (quoting Evans v. State, 185 S.W.3d 30, 36 (Tex. App.—San Antonio 2005), rev’d on other
grounds by Evans, 202 S.W.3d 158). However, the court of criminal appeals noted that those factors
“are not a litmus test.” Id. Perhaps more importantly, it is not entirely clear that those factors apply
in this case because Tooker was filmed holding, albeit briefly, the controlled substance at issue.
Cf. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)
(noting that “when the accused, like appellant, is not in exclusive possession of the place where
the contraband is found, we cannot conclude that the accused had knowledge of and control over
the contraband unless the State establishes an ‘affirmative link’ between the accused and the
contraband”). In any event, in performing this review, “[i]t is . . . not the number of links that is
dispositive, but rather the logical force of all of the evidence, direct and circumstantial.” Evans,
202 S.W.3d at 162. Accordingly, the presence of just a few factors would not seem to compel a
conclusion that the evidence in this case was legally insufficient, particularly when those factors are
coupled with the video evidence present in this case.

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to console her. In addition, Tooker urges that if he “intended to possess the drugs or to hide them,

he could have done so,” particularly since there was no indication given to him that he was not free

to leave the scene.

Under the Health and Safety Code, a person commits an offense if he “knowingly or

intentionally possesses a controlled substance.” Tex. Health & Safety Code § 481.115(a). In this

context, possess means to have “actual care, custody, control, or management.” Id. § 481.002(38).

Accordingly, “[t]o prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the accused

knew the matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.

App. 2005). “Possession is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his

control.” Tex. Penal Code § 6.01(b). “Intent can be inferred from the acts, words, and conduct of

the accused.” Reed v. State, 769 S.W.2d 323, 330 (Tex. App.—San Antonio 1989, pet. ref’d).

As set out earlier, in his testimony, Tooker explained that although he did not want

the baggie, he surmised what the contents of the baggie were when Hazle placed it in his hand and

further explained that he knew of Hazle’s prior drug use and prior arrest and questioned her about

whether there were drugs in the car. In addition, the recordings showed that Tooker had no negative

reaction when Hazle placed the baggie in his hand; on the contrary, Tooker continued to kiss Hazle

after the baggie was placed in his hand before he ultimately dropped the baggie away from where

the officers were located and made no mention of the baggie to the officers. In light of Tooker’s

testimony as well as the contents of the recordings, the jury could have reasonably inferred that

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Tooker knew that the baggie contained contraband and that he exercised “care, custody, control, or

management” of the contraband, see Tex. Health & Safety Code § 481.002(38), “for a sufficient time

to permit him to terminate his control,” Tex. Penal Code § 6.01(b).

Even assuming for the sake of argument that this evidence would be insufficient to

support the jury’s verdict on its own, this evidence is sufficient to corroborate Hazle’s testimony

by connecting Tooker to the commission of the offense. See Tex. Code Crim. Proc. art. 38.14;

Smith, 332 S.W.3d at 442. Moreover, as discussed earlier, Hazle testified that she and Tooker both

purchased the methamphetamine together and that Tooker knew there was methamphetamine in her

bra before she placed the baggie in his hand. In light of Hazle’s testimony as well as the remaining

evidence and testimony summarized above, the jury could have reasonably inferred that Tooker was

aware that Hazle had methamphetamine hidden in her bra before he placed his hands near her

chest and before Hazle placed the package in his hand and that Tooker exercised “care, custody,

control, or management” of the baggie for a sufficient period of time. See Tex. Health & Safety

Code § 481.002(38); Tex. Penal Code § 6.01(b). Alternatively, the jury could have determined that

Tooker was guilty of the offense under the law of parties as set out in the jury charge by reasonably

inferring that Tooker had the “intent to promote or assist” Hazle in committing the offense of

possession of a controlled substance by encouraging or aiding her in the commission of the offense.

See Tex. Penal Code § 7.02(a)(2).

For all of these reasons, we must conclude that the evidence was legally sufficient

to support Tooker’s conviction for possession of a controlled substance and, therefore, overrule his

first issue on appeal.

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Tampering with Evidence

In his second issue on appeal, Tooker contends that the evidence is legally insufficient

to support his conviction for tampering with evidence. When challenging the sufficiency of the

evidence, Tooker argues that there was no evidence “in the record from which a jury might

reasonably infer that Tooker’s abandonment of the contraband constituted an effort to hide,

destroy[,] or conceal evidence with a corresponding intent to impair its availability as evidence in

an investigation or proceeding.” On the contrary, Tooker insists that “the only reasonable inference

to be drawn from Tooker’s act in throwing the contraband to the ground is that he wanted to

abandon the object [and] to distance himself from the illegality of its possession,” which he asserts

is insufficient to support a conviction for tampering.

Under the Penal Code, a person commits the offense of tampering with physical

evidence if he, “knowing that an investigation or official proceeding is pending or in progress, . . .

alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility,

or availability as evidence in the investigation or official proceeding.” Tex. Penal Code § 37.09(a)(1);

see also Hollingsworth v. State, 15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.) (explaining

that “[u]nder section 37.09, appellant must have concealed the cocaine with the intent to impair its

availability as evidence in some kind of investigation”). “[I]n cases of tampering with evidence, not

every act of discarding an object evinces an intent to impair the availability of that object as evidence

in a later investigation or proceeding.” Thornton v. State, 425 S.W.3d 289, 304 (Tex. Crim. App.

2014). In fact, “[t]here may be cases in which the most inculpating inference the evidence would

support is that the accused simply intended to dispossess himself of the object in order to more

12
plausibly disclaim any connection to it,” and “‘it is within the province of the factfinder to choose

which inference is most reasonable.’” Id. (quoting Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim.

App. 2009)).

In this case, the jury heard testimony from Tooker that he suspected what was in the

baggie when Hazle gave it to him and viewed recordings showing that Officer’s Morua’s traffic stop

transformed into an investigation regarding whether Hazle should be arrested for a prior warrant for

possession of a controlled substance, that the interaction with the police occurred at night, that

Tooker continued to hold onto Hazle’s hand after she placed the baggie in his hand, that Tooker

continued to kiss Hazle after he dropped the baggie, that he dropped the baggie on the side of him

outside the view of the officers, that he made no effort to inform the officers about the baggie, and

that the officers did not notice the baggie until after Tooker returned to the car. Moreover, the

recordings documented that the baggie was small in size and transparent. In light of this evidence,

the jury could have reasonably inferred that Tooker knew that an investigation was in progress when

he dropped the baggie. Cf. Lemarr v. State, 487 S.W.3d 324, 326, 329 (Tex. App.—Amarillo 2016,

no pet.) (concluding that it did not matter that “the focus of the pending investigation was the

unauthorized use of a motor vehicle” and not possession of controlled substance when defendant

“‘poured [methamphetamine] out and . . . stuck the baggie in the door’” in order to prevent police

from seizing it). Further, the jury could have reasonably inferred that Tooker believed that the police

would have discovered the methamphetamine on Hazle after she was taken to the police station, that

Tooker believed that it was possible to conceal the baggie from the police given the nature of the

baggie and given that it was dark outside, that Tooker continued to hold Hazle’s hand after she

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handed him the baggie in order to conceal the baggie from the officers, that Tooker continued to kiss

Hazle while dropping the baggie in an effort to avoid calling attention to the baggie, that Tooker

tossed the baggie to the side of him not facing the officers in an effort to conceal the baggie from the

officers with the intent to prevent the officers from discovering and using the evidence in the

investigation, and that the officers did not initially notice the baggie due to the efforts undertaken

by Tooker. Cf. Thornton, 425 S.W.3d at 304-06 (determining in attempted-tampering case that jury

could have determined that defendant intended to conceal crack pipe rather than simply dispossess

property, in part, because jury could have determined that defendant thought pipe was concealable

due to facts that pipe was translucent and small and that sun was rising at time of alleged tampering;

because jury heard evidence that defendant “‘stealthily reached in [to his pocket]’” when attempting

to dispose of pipe, which supported “a finding that he intended that the officers never notice the

pipe”; and because defendant “‘palmed’ the pipe as he removed it from his pocket,” which was

“probative evidence of an intent to conceal the pipe” from officer’s view); Lemarr, 487 S.W.3d

at 329 (concluding in attempted-tampering case that evidence was sufficient where admissions

by defendant established “that she had good reason to believe the baggie contained a controlled

substance,” that “she intentionally poured the contents of that baggie out during the initial detention,”

and “that she placed the baggie in the door pocket because she did not want to get caught with

the drugs”).

Accordingly, we must conclude that the evidence is legally sufficient to support

Tooker’s conviction for tampering with evidence and, therefore, overrule his second issue on appeal.

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Clerical Error

Although Tooker does not raise this on appeal, we observe that the judgment of

conviction for the tampering offense contains a clerical error. That judgment reflects that the presiding

judge and the attorney for the State were both John Gauntt, but the record reveals that the attorney

for the State was Jessica Guy. This Court has the authority to modify incorrect judgments when it

has the information necessary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment to reflect that the attorney for

the State was Jessica Guy.

CONCLUSION

Having determined that there is a clerical error in the judgment of conviction for

the offense of tampering with evidence, we modify that judgment in the manner set out earlier.

Having overruled both of Tooker’s issues on appeal, we affirm the judgment of conviction for

possession of a controlled substance and affirm, as modified, the judgment of conviction for

tampering with evidence.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Field, and Bourland

Modified and, as Modified, Affirmed

Filed: October 27, 2017

Do Not Publish

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