Je'Quaylin Taylor v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-19-00171-CR
NO. 09-19-00172-CR
________________

JE’QUAYLIN TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 17-26500, 17-26502
________________________________________________________________________

MEMORANDUM OPINION

Je’Quaylin Taylor appeals the trial court’s revocation of his deferred

adjudication.1 In four issues on appeal, Taylor argues the trial court erred by not

considering the entire range of punishment for his offense and by admitting hearsay

testimony in violation of his due process rights under the Fourteenth Amendment of

1
Appellant is also known as Jequaylin Taylor, Jequaylin Prince Taylor, and
Jequaylin Lee Andrew Prince.
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the United States Constitution and the Confrontation Clause of the Sixth

Amendment of the United States Constitution. See U.S. Const. amend. VI, XIV. For

the reasons explained below, we affirm the trial court’s judgments.

Background

On January 4, 2017, a Jefferson County Grand Jury indicted Taylor for two

separate incidents of Aggravated Robbery, both first-degree felonies. See Tex. Penal

Code Ann. § 29.03(a)(2), (b). On July 23, 2018, Taylor pled guilty to both counts.

Taylor entered into a plea agreement with the State that capped his punishment at 15

years of incarceration on both cases and provided that Taylor would be granted

deferred adjudication on both charges. The trial court approved the agreement,

deferred adjudication in both cases, and ordered that Taylor be placed on 10 years

of community supervision. One condition of his community supervision required

Taylor to “enter and successfully complete the cognitive and substance abuse

programs of the Intermediate Sanctions Facility (ISF)[.]”

On January 9, 2019, the State filed a Motion to Revoke Unadjudicated

Probation in both cases. In March 2019, the trial court held a hearing regarding the

State’s Motion to Adjudicate. At the hearing, the trial court asked Taylor whether

the allegation in the State’s motion that he violated his probation by “failing to

comply with the program guidelines and rules of the Intermediate Sanction Facility”

was true or not true. Taylor pled “not true” for Count 1 in both cases. At this hearing,

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the trial court reminded Taylor of the punishment range for his crimes, stating, “I

just want to make sure you understand that I can revoke your probation and I can

sentence you anywhere in the range of punishment for those offenses, which is

between five years and up to 99 years or life.” The trial court then reset the case for

an evidentiary hearing.

In May 2019, the trial court held the evidentiary hearing regarding the State’s

motion to revoke unadjudicated probation. During the hearing, a single witness

testified for the State regarding its allegations. At the hearing’s conclusion, the trial

court adjudicated Taylor guilty of both Aggravated Robbery charges, made an

affirmative deadly weapon finding, and sentenced him to 40 years of incarceration

in the Texas Department of Corrections. Taylor timely appealed.

Issue One

In his first issue, Taylor argues that the trial court erred when it did not

consider the entire range of punishment for his offenses. Specifically, Taylor argues

that he was not afforded a “neutral and detached” judge because the trial court

“refuse[d] to consider the evidence and impose[d] a predetermined punishment.”

Taylor’s brief directs this Court’s attention to the trial court’s July 2018 comments

when it initially deferred adjudication.

THE COURT: I’m going to do something here that I really didn’t think
I was going to do until about right now, and that is I am going to give
you an opportunity. You may not like it, because it’s probably going to
be more difficult -- what I’m going to do today is probably more
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difficult than me just giving you some time and you go do it. I agree
with [the defense attorney]. I think sending you to prison could
potentially make things worse. Now, there may be a time when there’s
no choice that I have, and there are cases where I feel like there’s no
choice but to send somebody to prison, whether it makes them better or
worse or whatever. But because of your age, because you have those
people right there, that’s why I’m doing this, is because you have
somewhere to go.

And, so, what I’m going to do -- in Cause No. 26500, I’m going to find
that you entered your plea of guilty freely and voluntarily. I’m going to
find sufficient evidence to find you guilty. However, at this time, I’m
going to defer all proceedings and place you on probation for a period
of ten years. I’m going to go through what all the requirements of that
are in a minute.

Cause No. 26502, I’m also going to find that you entered your plea of
guilty freely and voluntarily, find sufficient evidence to find you guilty,
and in that case, I’m going to defer all proceedings for a period of ten
years and place you on probation. The conditions of both of these
probations are that you will start off your probation by entering and
successfully completing both phases of I.S.F., the drug treatment phase,
as well as the cognitive thinking phase. So, I realize you’ve been locked
up, but sitting in jail waiting on this doesn’t help me feel better about
sending you to them. So, you’re going to go through both phases. I can
tell you right now that if you act the way you’ve been acting in jail
when you’re at I.S.F. and I get one report that you have been
disrespectful to anyone, then that will be a violation of your probation,
and you’ll never get out to even try the real probation. Do you
understand what I'm saying?

THE DEFENDANT: Yes, ma’am.

THE COURT: Once you successfully complete that, because I believe
that you can -- I believe that you need to listen to what they tell you
when they visit you, not what anybody else tells you -- then you will be
ordered to live with your parents. You will have a restriction to be living
in their house at all times. You’re not allowed to spend the night
anywhere other than their house. You will be ordered to wear a GPS
monitoring device, and you will also be ordered to wear a drug patch at
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 least for some time until we see how aftercare’s going after I.S.F. so
that I know what you’re doing, where you are. Other than a job or
school, you will be ordered to house arrest. So, you can go [to] school.
I hope you do. You’re going to have every opportunity in these cases
because you don’t have a felony conviction on your record. This is your
day. This is it. You either take this day and run with it, or you come
back in this court -- and the reason I gave you a deferred probation is
partly for you -- but it’s more for me; okay -- to keep those convictions
off your record, which is great for you. If you successfully complete
these probations, then the cases are dismissed at the end and you’ll
never have a felony conviction on your record. So, when I say this is
your day, I mean it. Like, this is a huge day for you.

Other side to that, though, is I’m -- I did a deferred for me. Because if
you violate any condition, then I have the whole range of punishment,
and that’s up to 99 years or life in prison. What you did in that store
deserves prison time. So, this opportunity is for you to take, but if you
don’t take it and run with it and do everything right from the beginning,
then you’re going to be back in here and you could be looking at a lot
more time in prison than what you could have gotten today. No 15-year
cap. That’s all gone. Do you understand?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you have any questions?

THE DEFENDANT: No, ma’am.

Taylor contends that the trial court’s comment that if he violates his probation, he

will “never get out to even try the real probation[,]” equate to the trial court

predetermining his sentence before hearing the evidence.

To preserve error for appellate review, a party must present a timely objection

to the trial court, state the specific grounds for the objection, and obtain a ruling.

Tex. R. App. P. 33.1(a). But as the Court of Criminal Appeals determined, Rule 33.1

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is not absolute. See Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). In

Grado, the Court of Criminal Appeals provided the following guidance in

determining if waiver applies to the appellant’s complaint.

The general requirement that a contemporaneous objection must be
made to preserve error for appeal is firmly established in Rule of
Appellate Procedure 33.1. But the rule is not absolute. In Marin, we
held that the general preservation requirement’s application turns on the
nature of the right allegedly infringed. We separated defendants' rights
into three categories:

• The first category of rights are those that are “widely considered
so fundamental to the proper functioning of our adjudicatory
process . . . that they cannot be forfeited . . . by inaction alone.”
These are considered “absolute rights.”

• The second category of rights is comprised of rights that are
“not forfeitable”—they cannot be surrendered by mere inaction,
but are “waivable” if the waiver is affirmatively, plainly, freely,
and intelligently made. The trial judge has an independent duty
to implement these rights absent any request unless there is an
effective express waiver.

• Finally, the third category of rights are “forfeitable” and must
be requested by the litigant. Many rights of the criminal
defendant, including some constitutional rights, are in this
category and can be forfeited by inaction.

Rule 33.1’s preservation requirements do not apply to rights falling
within the first two categories. Barring these two narrow exceptions, all
errors—even constitutional errors—may be forfeited on appeal if an
appellant failed to object at trial.

Id. at 738–39 (citations and footnotes omitted). Grado specifically decided that the

right for the trial court to consider the appropriate punishment range falls into the

second category and are forfeitable only by an “effective waiver[.]” Id. at 743.
6
Accordingly, although Taylor failed to object at trial regarding the trial court’s

failure to consider the entire punishment range, absent an express waiver, he did not

waive his objection for review on appeal. See id.

Our review of the record reveals that Taylor’s complaints lack merit. In the

absence of a clear showing to the contrary, we presume that the trial court was

neutral and detached when it assessed the defendant’s punishment and that it

considered the full range of punishment. See Brumit v. State, 206 S.W.3d 639, 645

(Tex. Crim. App. 2006); Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d). Bias is not shown when the trial court makes

no comments indicating that the court considered less than the full punishment

range. See Brumit, 206 S.W.3d at 645; see also Banister v. State, 551 S.W.3d 768,

770 (Tex. App.—Fort Worth 2017, no pet.) (no bias by the trial court that “ordered

a PSI, heard testimony from witnesses, and considered argument of counsel prior to

sentencing [the appellant]”).

Here, the record does not support Taylor’s claim that the trial court failed to

consider the full range of punishment. None of the trial court’s comments reflect

bias, partiality, or a refusal to consider evidence relevant to punishment or to the full

range of punishment. See Brumit, 206 S.W.3d at 645. When the trial court made the

statement of which Taylor complains, it was referring to the ISF program

specifically and explained that if Taylor failed to comply with the program rules, his

7
probation would be subject to revocation before he was ever released to live in his

parents’ home. The revocation hearing’s record reflects that the trial judge heard

arguments from both the prosecutor and defense counsel before deciding to revoke

Taylor’s community supervision and assess punishment. Notably, the trial court told

Taylor that if he violated the conditions of his probation, he would be subject to the

“the whole range of punishment[.]” Compare Banister, 551 S.W.3d at 770, with Ex

parte Brown, 158 S.W.3d 449, 456–57 (Tex. Crim. App. 2005) (explaining that a

trial court violated the appellant’s due process rights by a “promise to impose the

maximum punishment if a prospective probationer fails to abide by the terms of

probation and then carrying through on that promise[,]” without any evidence in the

record that contradicts that promise). Because the record does not show that the trial

court arbitrarily refused to consider the entire range of punishment in assessing

Taylor’s sentence, we overrule issue one.

Issue Two

In his second issue, Taylor argues the trial court erred when it allowed

inadmissible hearsay testimony from the State. Specifically, Taylor contends the trial

court erroneously permitted “textbook hearsay” when the prosecution’s only witness

was allowed to testify “solely based on out-of-court statements provided to him.”

We review a trial court's order revoking probation for abuse of discretion.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). At a revocation

8
hearing, the State has the burden to establish the alleged violations by a

preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.

App. 1993). Proof of a violation of a single condition of community supervision is

sufficient to support a trial court’s decision to revoke. Moore v. State, 605 S.W.2d

924, 926 (Tex. Crim. App. [Panel Op.] 1980). Because community supervision

revocation hearings are judicial proceedings, they are governed by the Texas Rules

of Evidence. Ex parte Doan, 369 S.W.3d 205, 210, 212 (Tex. Crim. App. 2012).

Accordingly, we address Taylor’s evidentiary issue in the same manner as other

judicial proceedings. See id. at 212. We review the trial court’s decision to admit or

exclude evidence for abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim. App. 2002).

Assuming without deciding that Taylor properly preserved the issue and that

the trial court erred by admitting the testimony from the witness based on out-of-

court statements, we consider the issue of harm. “Error in the admission of evidence

is non-constitutional error subject to a harm analysis under Rule 44.2(b)[.]” Jabari

v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing

Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998)). Rule 44.2(b) requires that we disregard the alleged error unless it affected

Taylor’s substantial rights. See Tex. R. App. P. 44.2(b); Hernandez v. State, 176

S.W.3d 821, 824 (Tex. Crim App. 2005). A substantial right is affected when the

9
alleged error had a substantial, injurious effect or influence on the outcome. See King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

At trial, the State’s sole witness, Steven Pluth, testified about Taylor’s

participation in the MTC East Texas Treatment Facility. Pluth stated that he is a

licensed chemical dependency counselor and that he supervises and trains about 35

people at the facility. Pluth described his facility and Taylor’s initial orientation into

the facility. Although not admitted into the record, the transcript shows that when

questioned about Taylor’s infractions at the facility, he referenced a document,

referred to by the State as “paperwork[.]” The defense objected to this as hearsay,

and the trial court sustained the objection. The State then asked Pluth for any

infractions by Taylor of which he had personal knowledge. Pluth stated that Taylor

violated “major Rule No. 1, . . . no disrespect to staff.” The defense objected again,

which the trial court overruled. Pluth explained that he was reading from a

“chronological summary” he prepared listing all of Taylor’s disciplinary actions that

he considered in deciding whether to give Taylor a thirty-day extension or a program

removal. At each point, the trial court overruled the defense’s continued objections.

The defense eventually asked for and was granted a running objection regarding

Pluth’s testimony from the document.

Regardless of whether Taylor’s testimony from the document was hearsay,

there was no harm shown by the testimony. After overruling the defense’s objection,

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the trial court noted that all of the violations were “lined out” in the presentence

investigation report presented to the trial court. Taylor did not object to the trial

court’s consideration of the presentencing report. The Court of Criminal Appeals has

made clear that a trial court can consider the presentencing report when assessing

punishment, including hearsay in a PSI, because the Rules of Evidence do not apply

to PSI’s contents. See Fryer v. State, 68 S.W.3d 628, 631–32 (Tex. Crim. App.

2002). This rendered harmless the complained-of testimony from Pluth while

referencing the document. See Mayes v State, 816 S.W.2d 79, 88 (Tex. Crim. App.

1991) (stating that any objectionable testimony was harmless because “substantially

the same evidence” was admitted elsewhere without objection); see also Merritt v.

State, 529 S.W.3d 549, 556 (Tex. App—Houston [14th Dist.] 2017, pet. ref’d). For

these reasons, we conclude that Taylor’s substantial rights were unaffected by the

trial court’s consideration of Pluth’s testimony as the presentencing report contained

the same information, which the trial court is authorized to consider in assessing

punishment. See Fryer, 68 S.W.3d at 631–32. We overrule Taylor’s second issue on

appeal.

Issue three

Taylor argues in his third issue that the trial court violated his rights to

confrontation under the Due Process Clause of the Fourteenth Amendment. See U.S.

Const. amend. XIV. Specifically, Taylor asserts that his “due process rights to

11
confrontation” were violated when Pluth was allowed to testify from the complained

of document. He argues that Pluth had no personal knowledge of the evidence

presented.

We must first address whether Taylor’s complaints were properly preserved

for appellate review. Preservation of error is systemic and must be reviewed by a

court of appeals, even when the issue is not raised by the parties. Bekendam v. State,

441 S.W.3d 295, 299 (Tex. Crim. App. 2014). To preserve a complaint for appeal, a

party must make a timely, specific objection to the alleged error and obtain a ruling.

Tex. R. App. P. 33.1(a); Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App.

2009). A party must “‘let the trial judge know what he wants, why he thinks he is

entitled to it, and to do so clearly enough for the judge to understand him at a time

when the judge is in the proper position to do something about it.’” Pena, 285

S.W.3d at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.

1992)). Moreover, whether a party’s complaint is preserved is contingent upon

whether the complaint on appeal comports with the complaint made at trial. Id.

Potential constitutional violations are not immune from waiver if the party does not

object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim App. 1990).

Our review of the record shows that although Taylor initially objected to

Pluth’s testimony as hearsay, he clarified his objection and stated that he was

objecting to the testimony as hearsay and as “a confrontation clause” objection.

12
When the trial court overruled his objection, defense counsel then asked for a

running objection stating that “I suppose, your Honor, more specifically, the

objection I’m making is, yes, the Court has it and the parties have all been furnished

this but it’s still hearsay. It’s a confrontation issue, it’s a 6th Amendment issue.”

Taylor again clarified his objection as a Confrontation Clause issue under the Sixth

Amendment. The record does not show that he made a Due Process argument under

the Fourteenth Amendment when he objected to Pluth’s testimony or the document

Pluth used during his testimony.

It is well established that, in order to preserve an issue for appeal, a
timely objection must be made that states the specific ground [for the]
objection, if the specific ground was not apparent from the context. A
general or imprecise objection may be sufficient to preserve error for
appeal, but only if the legal basis for the objection is obvious to the
court and to opposing counsel. When the objection is not specific and
the legal basis is not obvious, it does not serve the purpose of the
contemporaneous-objection rule for an appellate court to reach the
merits of a forfeitable issue that is essentially raised for the first time
on appeal.

Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (internal citations

omitted); see also Schultze v. State, 177 S.W.3d 26, 38 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (noting that “an objection stating one legal basis may not be

used to support a different legal theory on appeal”).

Ultimately, Taylor’s objections at trial were different from the constitutional

challenge before us today, and he has failed to preserve his constitutional challenge

of a due process violation for review. See Rogers v. State, 640 S.W.2d 248, 265 (Tex.
13
Crim. App. [Panel Op.] 1981) (op. on State’s first motion for reh’g) (holding that

when appellant failed to voice his due process objection he waived his complaint in

the revocation hearing); see also Shah v. State, 403 S.W.3d 29, 36 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d) (holding that failing to object waives the

appellant’s due process argument); see also Tex. R. App. 33.1. Therefore, we

overrule Taylor’s third issue.

Issue Four

In his final issue, Taylor argues that the trial court violated his Sixth

Amendment right under the Confrontation Clause when it allowed Pluth to testify to

testimonial hearsay from a document not admitted in evidence. See U.S. Const.

amend. VI. Before reaching the merits of Taylor’s argument, we must decide

whether the Confrontation Clause is applicable to a revocation of community

supervision hearing.

In Ex parte Doan, the Court of Criminal Appeals explained that a revocation

hearing is a judicial proceeding governed by the same rules that govern other judicial

proceedings, as opposed to an administrative hearing. 369 S.W.3d at 215. Doan did

not decide whether the Confrontation Clause applies to revocation proceedings, and

the Court of Criminal Appeals has not expressly stated in a post-Doan opinion

whether the Confrontation Clause applies to revocation proceedings. As the Twelfth

Court of Appeals explained, since Doan did not expressly address whether or not the

14
Confrontation Clause applies in a probation revocation proceeding, several of our

sister courts, in addressing this issue, have either decided that the Confrontation

Clause did not apply or have assumed its application without expressly deciding it.

See Sabella v. State, 578 S.W.3d 137, 142 (Tex. App.—Texarkana 2019, pet. ref’d)

(explaining the history of pre- and post-Doan analysis by the Court of Criminal

Appeals and intermediate courts of appeals).

We note that our own court has established precedent on this issue, explaining

in Smart v. State, that the Confrontation Clause does not apply to revocation

proceedings. 153 S.W.3d 118, 120–21 (Tex. App.—Beaumont 2004, pet. ref’d).

Smart was decided before Doan but has not been expressly overruled by the Texas

Court of Criminal Appeals. In Smart, this Court based its decision largely on its

review and analysis of United States Supreme Court cases and federal cases that held

community supervision is not a stage of a criminal prosecution. See id.; see also

Pickens v. State, No. 02-17-00050-CR, 2018 WL 3468359, at *4 (Tex. App.—Fort

Worth July 19, 2018, no pet.) (mem. op., not designated for publication) (analyzing

Smart in a post Doan analysis and concluding Smart was largely based on our review

of federal case law that a revocation proceeding is not a criminal prosecution). We

noted in Smart that the United States Supreme Court held that the revocation process

should be flexible to consider evidence not admissible in a criminal trial. Smart, 153

S.W.3d at 120–21 (quoting Morrissey, 408 U.S. 471, 480 (1972)). While the Texas

15
Court of Criminal Appeals expressly stated in Doan that a revocation proceeding is

a judicial proceeding with judicial processes, the Doan court did not expressly

equate the revocation of community supervision to a criminal prosecution. See

generally Doan, 369 S.W.3d 205. The Texarkana Court of Appeals declined to apply

the Confrontation Clause to a revocation proceeding explaining that it did not find

any case law expressly applying the Confrontation Clause to revocation proceedings.

Sabella, 578 S.W.3d at 142. And while unpublished opinions offer no precedential

value to the court, we find it persuasive that several of our sister courts have declined

to apply the Confrontation Clause to revocation proceedings. See Hodges v. State,

No. 04-19-00382-CR, 2020 WL 1930485, at *2 (Tex. App.—San Antonio Apr. 22,

2020, no pet.) (mem. op., not designated for publication); Corona v. State, No. 14-

17-00821-CR, 2019 WL 1768598, at *3 (Tex. App.—Houston [14th Dist.] Apr. 23,

2019, no pet.) (mem. op., not designated for publication); Anthony v. State, No. 13-

17-0327-CR, 2019 WL 639492, at *3 (Tex. App.—Austin Feb. 15, 2019, pet. ref’d)

(mem. op., not designated for publication); Pickins, 2018 WL 3468359, at *4;

Roberts v. State, No. 05-16-00338-CR, 2017 WL 461354, at *2–3 (Tex. App.—

Dallas Jan. 24, 2017, pet. dism’d) (mem. op., not designated for publication);

Alvarez v. State, No. 11-13-00322-CR, 2015 WL 6121359, at *3 (Tex. App.—

Eastland Oct. 15, 2015, no pet.) (mem. op., not designated for publication); but see

Blackman v. State, Nos. 01-12-00525-CR, 01-12-00526-CR, 2014 WL 50804 at *2–

16
3 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, pet. ref’d) (mem. op., not designated

for publication) (noting that Smart along with other pre-Doan cases were disavowed

by Doan for holding that a community supervision revocation hearing was merely

an administrative hearing, but noting that Doan did not address whether the

Confrontation Clause applies to community revocation proceedings). More recently

after Smart, in an unpublished opinion, this Court stated the following about the

Confrontation Clause and revocation proceedings:

The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” A Crawford challenge
under the Sixth Amendment “is not directly applicable in [a] revocation
proceeding.” The Court of Criminal Appeals has held “that when a
[presentencing investigation] is used in a non-capital case in which the
defendant has elected to have the judge determine sentencing,
Crawford does not apply.” In any event, the record does not reflect that
the trial court, in assessing the sentences, considered the “proffer” as
evidence in assessing the sentences.

Keller v. State, Nos. 09-11-00441-CR, 09-11-00442-CR, 09-11-00443-CR, 2012

WL 2150348, at *2 (Tex. App.—Beaumont June 13, 2012, no pet.) (mem. op., not

designated for publication) (citations and footnotes omitted).

Agreeing with the overwhelming weight of authority, therefore, we conclude

that a community supervision revocation proceeding, while a judicial proceeding, is

not a stage of a criminal prosecution. Accordingly, the Confrontation Clause is

inapplicable in those proceedings, and we decline to extend the application of the

17
Confrontation Clause to community supervision revocation proceedings. We

overrule Taylor’s final issue.

Conclusion

Having overruled all of Taylor’s issues on appeal, we affirm the judgments

of the trial court.

AFFIRMED.

________________________________
CHARLES KREGER
Justice

Submitted on August 7, 2020
Opinion Delivered November 4, 2020
Do Not Publish

Before McKeithen, C.J., Kreger, and Johnson, JJ.

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