Reversed and Remanded; Opinion Filed April 28, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00144-CV
IN RE: THE COMMITMENT OF DAVID EDWARD JOINER
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. CV1870002
MEMORANDUM OPINION
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
In this civil commitment proceeding, the State of Texas petitioned to have
David Edward Joiner declared a sexually violent predator (SVP) under the Civil
Commitment of Sexually Violent Predators Act (the Act). See TEX. HEALTH &
SAFETY CODE ANN. §§ 841.001–.153. After the jury found beyond a reasonable
doubt that Joiner is an SVP, the trial court rendered judgment on the jury’s verdict
and ordered that Joiner be civilly committed for sex offender treatment and
supervision. In six issues, Joiner challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that he has a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. He also contends
the trial court erred by admitting into evidence the curriculum vitae and report of
Dr. Darrell Turner after excluding the State’s expert witness from testifying. We
reverse the trial court’s judgment and remand for further proceedings.
I. Background
Joiner has been in prison for over thirty years, serving sentences for three
convictions for aggravated sexual assault and three convictions for burglary. At
trial, Joiner described himself as a “cat burglarizer” because he broke into houses
at night when people were at home sleeping. He testified that he burglarized at
least twenty-five or thirty homes. He also testified that he had sexual intercourse
with five or more women who awoke to find him in their homes. Joiner stated that
he did not plan these sexual assaults—he broke into houses for the money, but
sometimes lust took over if he saw a woman half-dressed. He claimed that the
intercourse was always consensual—if a woman did not scream, he could usually
talk her into having sex with him. He believes the police made up all of the
allegations that he used weapons and threatened the women.
Joiner admitted that while incarcerated, he assaulted a couple of inmates. In
2013, a female officer reported that appellant threatened to drag her into his cell
and rape her. Joiner denied ever making such a threat and claimed that the officer
lied. He also denied sending a letter to another female corrections officer,
attempting to initiate a romantic relationship with her. When asked how many
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disciplinary cases he had accumulated for masturbation, he estimated that it was
probably more than twenty but definitely less than fifty. He said that he
masturbated in the presence of female guards to get their attention. Joiner agreed
that he had started fires while in prison, but he could not remember how many.
When asked about his disciplinary cases for weapons possession and possession of
a cell phone, he admitted to the weapons possession but claimed that the cell phone
belonged to his cellmate.
When asked if he had been diagnosed with any conditions, Joiner testified he
knew that he had been diagnosed with schizophrenia, but he was taking
medications for it. He denied any knowledge of having a bipolar disorder or an
anti-social personality disorder. When asked if he had received inpatient mental
health treatment off and on for over twelve years, he stated he did not know. He
also did not recall that one of his “target problems” was taking medications as
prescribed. Joiner denied having hallucinations or hearing voices, except for
Michael and Vanessa. Michael was a good friend who is now deceased, and
Vanessa was an old girlfriend. They have talked to him daily for about thirty
years. When confronted with statements from records, Joiner agreed that maybe
he had once said that the voices were telling him to hurt himself and others.
In November 2017, the Texas Department of Criminal Justice Civil
Commitment Multidisciplinary Team asked Dr. Darrell Turner, a clinical
psychologist, to conduct a forensic evaluation of Joiner to assist in determining
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whether Joiner had a behavioral abnormality that would make him likely to engage
in future predatory acts of sexual violence. Dr. Turner evaluated Joiner and
prepared a written “Evaluation For Behavioral Abnormality” (report). In his
report, Dr. Turner concluded that Joiner suffers from “a behavioral abnormality
that makes him likely to engage in future acts of predatory sexual violence.” In
2018, the State filed a petition requesting that Joiner be found to be an SVP and
that he be committed pursuant to the Act. In response to Joiner’s discovery
requests, the State identified and produced Dr. Turner’s report as part of its “Civil
Commitment Referral Packet.”
The State planned to have Dr. Randall Price testify as its expert at the trial.
However, the State failed to designate Dr. Price timely in its discovery responses,
and the trial court excluded Dr. Price from testifying. The trial court admitted Dr.
Turner’s report, his curriculum vitae (CV), an opinion letter1 and an affidavit2 into
evidence over Joiner’s objection. Although Dr. Turner had not been designated as
an expert witness in the case, and the trial court barred the State from calling Dr.
Turner to testify, he was present at the trial. The trial court stated that Joiner could
call Dr. Turner to cross-examine him concerning his report.
1
On October 28, 2018, Dr. Turner wrote a letter to the State verifying that he had conducted the
behavioral abnormality evaluation of Joiner on November 3, 2017, pursuant to his MDT contract. He
further stated that upon review of additional information provided by the State, his opinion remained the
same.
2
Dr. Turner signed an affidavit affirming that he was the custodian of Joiner’s records, specifically
the 10-page report.
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At the trial, Joiner was the only witness who testified before the jury. The
jury found beyond a reasonable doubt that Joiner is an SVP. The trial court
accepted that finding and ordered that Joiner be civilly committed upon his release
from prison.
We note that this Court recently issued its opinion in an almost identical
case, In re: The Commitment of Kevin Joe Mumford, Case No. 05-19-00186-CV.
In Mumford, and this case, the attorneys raised the same issues with respect to the
same ruling by the same trial judge concerning the admissibility of a similar report
prepared by the same expert. Given the similarities, we follow our decision in
Mumford.
II. Discussion
A. Sexually Violent Predator Act
In a suit to commit a person as a sexually violent predator, the State must
prove beyond a reasonable doubt that the person (i) is a “repeat sexually violent
offender” and (ii) “suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” HEALTH & SAFETY §§
841.003(a), 841.062(a); see also id. § 841.002(8) (defining “sexually violent
offense”). A person is a repeat sexually violent offender if he has been convicted
of more than one sexually violent offense and a sentence was imposed for at least
one of the offenses. Id. § 841.003(b). A behavioral abnormality is “a congenital or
acquired condition that, by affecting a person’s emotional or volitional capacity,
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predisposes the person to commit a sexually violent offense, to the extent that the
person becomes a menace to the health and safety of another person.” Id.
§ 841.002(2). A predatory act is “an act directed toward individuals, including
family members, for the primary purpose of victimization.” Id. § 841.002(5).
B. Sufficiency of the Evidence
In his fourth issue, Joiner asserts the evidence is legally insufficient to
support the jury’s finding that he is a sexually violent predator. Because the Act
requires the State to prove beyond a reasonable doubt that a person is a sexually
violent predator, we review the legal sufficiency of the evidence using the
appellate standard of review for criminal cases. In re Commitment of Brown, No.
05-16-01178-CV, 2018 WL 947904, at *8 (Tex. App.—Dallas Feb. 20, 2018, no
pet.) (mem. op.); In re Commitment of Dever, 521 S.W.3d 84, 86 (Tex. App.—Fort
Worth 2017, no pet.). We assess the evidence in the light most favorable to the
verdict to determine whether any rational factfinder could have found the elements
required for commitment under the Act beyond a reasonable doubt. In re
Commitment of Rogers, No. 05-17-00010-CV, 2018 WL 360047, at *5 (Tex.
App.—Dallas Jan. 11, 2018, pet. denied) (mem. op.); see also Jackson v. Virginia,
443 U.S. 307, 319 (1979). “It is the fact finder’s responsibility to fairly resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences
from basic to ultimate facts.” In re Commitment of Williams, 539 S.W.3d 429, 437
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting In re Commitment of
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Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2015, pet.
denied)). We consider all the evidence admitted before the fact finder, including
improperly admitted evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013).
Joiner does not dispute the first element—that he is a repeat sexually violent
offender. His issues on appeal pertain to the second element’s requirement of
proof that he suffers from a behavioral abnormality. Joiner argues the evidence is
insufficient to support the jury’s finding that he is an SVP because the only
evidence that he has a behavioral abnormality is Dr. Turner’s report, and the trial
court erred by admitting it. However, under the applicable standard of review, we
consider “all evidence in the record of the trial, whether it was admissible or
inadmissible.” Winfrey, 393 S.W.3d at 767 (quoting Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999)). Therefore, we include Dr. Turner’s report in our
consideration of the evidence.
Joiner argues that even if we consider Dr. Turner’s report, the evidence is
still insufficient to prove beyond a reasonable doubt that he has a behavioral
abnormality. In the report, Dr. Turner included a summary of his findings:
Mr. Joiner is a repeat sexual offender with three known victims (four
if the December victim is included) and five to six admitted victims.
All of his victims were strangers, and he sexually assaulted them in
the process of burglarizing their homes. He admitted to enjoying
burglarizing homes. One victim was a minor — age 16. The sexual
assaults were violent in nature, especially given his use of knives,
threats of violence and death to the victims and their families, and his
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claim of having a gun in one offense. These offenses occurred while
on supervised releases for previous burglaries. He denied and
minimized his substance use history today despite records that
indicate otherwise. He denied being intoxicated at the time of any of
his offenses. He has a high number of disciplinary cases and major
disciplinary cases and a high number of sexual misconduct cases. He
admitted to masturbating purposefully in front of female staff with a
desire that they were aware of his actions toward them. Additionally,
the offender does not outright deny his offenses, but he states that he
does not remember some of them, and he admits to others for which
he was not caught. Also, he minimizes to a large degree his actions in
the offenses that he does remember or acknowledge. His claims that
he calmed his victims by sitting them down and talking to them until
they relaxed and allowed him to have sex are in direct contrast to the
ambush-style armed offenses that are described in the records. He
claims on one occasion to have given his knife to one victim to show
that he meant no harm, and she dropped it on the ground. He claims
that the sexual assaults were opportunistic in nature and not planned,
and that he sexually assaulted victims depending on whether he was in
the mood to have sex.
***
[T]his offender lacks insight into his offending, does not think he
needs sex offender treatment, and has committed a great deal of
sexual offenses across a long period of time, even after capture and
punishment. He also minimizes his offenses to a large degree and,
therefore, underestimates the impact of his offending on his victims.
His laughter during the discussion of the offenses today was also
incongruent with expected affective presentation.
The two most robust predictors of sexual recidivism, especially when
coexisting, are antisociality and sexual deviance. There is some
evidence of sexual deviance given the repeated violent sexual
offending using threats and weapons against stranger victims. He
denies today that the suffering of these victims was particularly
arousing to him, but additional clinical assessment may provide other
evidence (i.e., penile plethysmograph). Regardless, the acts
themselves were sexually deviant, as has been his behavior while in
prison. There is strong evidence of antisociality and psychopathy,
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thus his risk in both of the primary risk categories is high. His Static
score is well-above average, and his PCL-R facet four score is 8/10.3
In sum, based upon the records reviewed, the clinical interview, and
testing conducted, taking all variables into consideration and using a
clinically-adjusted actuarial approach, it is the opinion of the
undersigned that Mr. Joiner represents a high risk for sexual re-
offense and DOES suffer from a behavioral abnormality that makes
him likely to engage in future acts of predatory sexual violence.
Joiner does not challenge the substance of Dr. Turner’s written report.
Instead, he argues that without Dr. Turner’s inadmissible written report, the jury
had no evidence that (i) he has a behavioral abnormality, and (ii) he is likely to
commit a predatory sexually violent act. He urges that the only evidence
legitimately before the jury was the fact that he had been convicted of three
aggravated sexual assaults over thirty years ago. He describes these assaults as
crimes of opportunity, committed during some of his “cat burglarizing” offenses.
Because we consider all the evidence admitted before the fact finder,
including improperly admitted evidence, see Winfrey, 393 S.W.3d 767, we must
consider Dr. Turner’s written report. According to the report, Dr. Turner based his
conclusion that Joiner “suffer[s] from a behavioral abnormality that makes him
likely to engage in future acts of predatory sexual violence” on his forensic
interview of Joiner, his administration of the Static–99R assessment and the Hare
3
The Static–99R assessment is a list of ten risk factors used to score whether someone has a
behavioral abnormality. The Psychopathy Checklist Revised (PCLR) is an assessment of whether the
individual meets criteria as a psychopath. See Brown, 2018 WL 947904, at *4.
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Psychopathy Checklist–Revised (PCLR), and his review of records provided by the
Texas Department of Criminal Justice Civil Commitment Multidisciplinary Team.
Dr. Turner found that Joiner’s score of six on the Static–99R assessment signified
that Joiner’s risk of re-offending was well above average. Dr. Turner also found
that Joiner’s PCLR score indicated a high level of psychopathic characteristics.
Based on his interview of Joiner, Dr. Turner found that Joiner minimized his
aggravated sexual assault offenses, denied that he threatened his victims with
knives and a gun, and admitted to a number of prison disciplinary cases for sexual
offenses. Dr. Turner found no history that Joiner had received sex-offender
treatment. Furthermore, Joiner told Dr. Turner that he did not need sex-offender
treatment.
After considering all the evidence, we conclude a reasonable juror could
have found beyond a reasonable doubt that Joiner suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
We overrule Joiner’s fourth issue.
C. Admissibility of Dr. Turner’s Report
In his first issue, Joiner contends the trial court erred by admitting Dr.
Turner’s CV, report, and opinion letter into evidence under the business-records
exception to the rule against the admission of hearsay evidence. Joiner argues that
all three of these documents were prepared in anticipation of trial and, therefore,
were not admissible as business records. In response, the State asserts that because
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Joiner’s issue on appeal does not comport with his objections in the trial court, he
did not properly preserve this issue for appellate review.
Evidentiary rulings are committed to the trial court’s sound discretion. Bay
Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per
curiam). A trial court abuses its discretion only when it rules without regard for
any guiding rules or principles, and we must uphold a trial court’s evidentiary
ruling if there is any legitimate basis to support it. Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Even if a court erroneously
admitted improper evidence, the complaining party must show that the error
probably resulted in an improper judgment. TEX. R. APP. P. 44.1. To warrant
reversal, this typically requires a showing that the judgment turned on the
particular evidence in question. Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001). In making this determination, we review the entire
record. Id.
Hearsay is an out-of-court statement offered in evidence to prove the truth of
the matter asserted and is inadmissible unless a statute or rule of exception applies.
TEX. RS. EVID. 801(d), 802. The proponent of hearsay has the burden of showing
that the testimony fits within an exception to the general rule. Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004) (citing Skillern & Sons, Inc.
v. Rosen, 359 S.W.2d 298, 301 (Tex. 1962)).
Under the business-records exception, evidence that is otherwise
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inadmissible as hearsay may be admissible if the proponent of the evidence
demonstrates that (1) the records were made and kept in the course of a regularly
conducted business activity; (2) it was the regular practice of the business activity
to create such records; (3) the records were created at or near the time of the event
recorded; and (4) the records were created by, or from information transmitted by,
a person with knowledge who was acting in the regular course of business. TEX.
R. EVID. 803(6); see In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied). These prerequisites to admissibility may be
provided in the form of an affidavit that complies with rule 902(10). TEX. R. EVID.
803(6)(D).
A business record meeting all of the requirements of rule 803(6) may be
admitted into evidence, regardless of whether the declarant is available as a
witness, if “the opponent fails to demonstrate that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness.” TEX.
R. EVID. 803(6)(E). Documents prepared in anticipation of litigation generally
lack the trustworthiness necessary for admission under rule 803(6). See Ortega v.
Cach, LLC, 396 S.W.3d 622, 630 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
The State argues that Joiner did not object to the admission of the report on
the ground that it was prepared in anticipation of litigation. We disagree. On the
first day of trial, prior to jury selection, the trial court conducted a hearing to
consider Joiner’s motion to exclude the State’s witness list and the State’s list of
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witnesses with knowledge. Specifically, Joiner’s attorney sought to exclude Dr.
Turner’s testimony. The State responded that it did not intend to call Dr. Turner as
an expert; instead, Dr. Turner would testify as the custodian of the business records
the State intended to use as trial exhibits, including Dr. Turner’s CV, his report,
and a subsequent letter re-confirming the opinions he provided in his report. The
judge noted that Joiner’s attorney wanted him to exclude not only Dr. Turner’s
testimony but all of the records that the State had tendered and asked, “is that
correct?” Joiner’s attorney responded: “Yes, Your Honor. The initial bunch of
records were completed in furtherance of litigation, not for a business purpose
record. And we would seek to strike those because they were completed in
litigation. In addition, the CV of the expert would only be going to bolster those
records that were created in furtherance of litigation.”
The trial court allowed Dr. Turner to testify outside the presence of the jury.
Dr. Turner testified that he was the custodian of his CV, his report pertaining to
Joiner, and his subsequent opinion letter reconfirming the opinions stated in his
report. Joiner’s attorney again objected, arguing that the CV and letter were not
regularly kept business documents but were prepared for this litigation. The trial
court admitted the records over Joiner’s objections.
For Joiner’s objection to have been sufficient, it had to be sufficiently
specific “to make the trial court aware of the complaint.” TEX. R. APP. P.
33.1(a)(1)(A). During the discussion of Joiner’s motion to exclude the State’s
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witness list, the prosecutor maintained that the report would be offered as a
business record, and Joiner’s counsel argued the report was prepared in
anticipation of litigation. Even though the admissibility of the report was not the
precise matter before the trial court when Joiner first made the objection, it was
relevant to the discussion of the motion to exclude Dr. Turner as an expert witness.
Further, it appears from the record that Joiner’s attorney renewed this objection at
the close of Dr. Turner’s testimony. Accordingly, we conclude this objection was
preserved for appellate review.
We next consider whether the report was prepared in anticipation of
litigation. The report states that Dr. Turner’s forensic evaluation of Joiner “was
conducted pursuant to request from the Texas Department of Criminal Justice
under the authority of the Texas Health and Safety Code, Title 11, Section 852
[sic].” There is no section 852 in Title 11 of the Health and Safety Code, but the
heading of Title 11 is “Civil Commitment of Sexually Violent Predators.” The
report also states the reason Joiner was referred to Dr. Turner:
Mr. David Joiner is a 55-year-old male who was referred by the TDCJ
Civil Commitment Multidisciplinary Team for a forensic
psychological evaluation to assist in the determination as to whether
or not the offender has a behavioral abnormality that makes him likely
to engage in future predatory acts of sexual violence.
Under Title 11, if a person has two prior convictions for sexually violent offenses
and is within twenty-four months of being released from incarceration, the Texas
Department of Criminal Justice gives notice to a multidisciplinary team. HEALTH
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& SAFETY § 841.021. The multidisciplinary team then assesses “whether the
person is likely to commit a sexually violent offense after release.” Id. §§
841.022(c)(1), .023(a). In making their assessment, the Texas Department of
Justice “may contract for the expert services required by this subsection.” Id. §
841.023(a). “If as a result of the assessment the Texas Department of Criminal
Justice believes that the person suffers from a behavioral abnormality,” the
Department must give notice to the State’s attorney. Id. § 841.023(b). The State’s
attorney may then file a petition alleging that the person is a sexually violent
predator. Id. § 841.041. If the trier of fact “determines that the person is a
sexually violent predator, the judge shall commit the person for treatment and
supervision.” Id. § 841.081(a). Here, because Dr. Turner’s report states it was
prepared pursuant to a referral from a multidisciplinary team under Title 11, the
report was prepared in anticipation of litigation over whether Joiner should be
committed as a sexually violent predator.
The State argues that the report was not prepared in anticipation of litigation
because Dr. Turner interviewed Joiner on November 3, 2017, more than three
months before the State filed its petition to commit Joiner on February 7, 2018.
However, the report’s only purpose was to determine whether to seek commitment
of Joiner, which could be achieved only by bringing this suit. See id. § 841.023.
The State also argues that a person may be civilly committed under the Act
solely on documentary evidence, citing section 841.061(e): “The attorney
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representing the state may rely on the petition filed under Section 841.041 and
supplement the petition with documentary evidence or live testimony.” Id.
§ 841.061(e) (emphasis added). No provision of the Act purports to set aside the
rule against the admission of hearsay evidence except as permitted by the rules.
Nor does any provision of the Act set aside the requirement that documents
admitted under the business-records exception to the hearsay rule be trustworthy.
We conclude that Dr. Turner’s report demonstrates that the circumstances of
its preparation indicate a lack of trustworthiness because it was prepared in
anticipation of litigation. See Ortega, 396 S.W.3d at 630. Therefore, the trial
court abused its discretion by admitting the report into evidence.
Although we have determined that the trial court erred by admitting the
report, we may not reverse the trial court’s judgment unless we determine the error
probably caused the rendition of an improper judgment. TEX. R. APP. 44.1(a). In
this case, Dr. Turner’s report was the only evidence that Joiner “suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence.” Without evidence to support that finding, the jury could not have
found Joiner was a sexually violent predator. See HEALTH & SAFETY §
841.003(a)(2). Accordingly, we conclude the trial court’s admission of Dr.
Turner’s report over Joiner’s objection was reversible error.
We sustain Joiner’s first issue. Having sustained Joiner’s first issue, we
need not consider his remaining issues.
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III. Conclusion
We reverse the trial court’s judgment and remand the cause to the trial court
for further proceedings.
190144f.p05 /Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE: THE COMMITMENT OF On Appeal from the 204th Judicial
DAVID EDWARD JOINER District Court, Dallas County, Texas
Trial Court Cause No. CV1870002.
No. 05-19-00144-CV Opinion delivered by Justice
Pedersen, III. Justices Osborne and
Partida-Kipness participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant David Edward Joiner recover his costs of
this appeal from appellee The State of Texas.
Judgment entered this 28th day of April, 2020.
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