                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                                _________________

                               NO. 09-16-00476-CR
                               _________________

                       THE STATE OF TEXAS, Appellant

                                          V.

                 ANTHONY LEON MATHEWS SR., Appellee

__________________________________________________________________

                On Appeal from the 253rd District Court
                        Liberty County, Texas
                      Trial Cause No. CR30204
__________________________________________________________________

                           MEMORANDUM OPINION

      The State filed this appeal asking us to review the trial court’s decision that

the delays in bringing the defendant’s case to trial violated the defendant’s

constitutional right to receive a speedy trial. See U.S. CONST. amend. VI. Given the

length of the delays attributable to the State, the deferential standard of review that

applies to the trial court’s express and implied findings of historical fact regarding

the causes of the delays, and the State’s failure to present evidence rebutting the


                                          1
defendant’s evidence suggesting that the delays were prejudicial, we affirm the trial

court’s judgment.

                                     Background

      In August 2012, Anthony Leon Mathews Sr. was stopped by a police officer

in Cleveland, Texas, for a traffic violation. Officer Paul Young, the officer who

conducted the stop, described the circumstances surrounding the stop in a probable

cause affidavit,1 which is used in the opinion solely for the purpose of describing the

circumstances that led to the stop. After Officer Young stopped Mathews, Mathews

told Officer Young that there were some drugs on the floorboard of the car. When

Officer Young searched the car, he found cocaine and marijuana on the car’s

floorboard; after discovering the contraband, Officer Young warned Mathews of his

Miranda2 rights. Officer Young arrested Mathews, and then took him to jail.

      A Department of Public Safety crime lab report,3 which indicates that cocaine

was in the material that Officer Young recovered after stopping Mathews, is also in


      1
        Officer Young did not testify in the hearing on Mathews’ motion to dismiss.
After the hearing, the State filed a copy of Mathews’ probable cause affidavit with
the District Clerk, so Young’s report was not included in the evidence the trial court
considered in ruling on Mathews’ motion.
      2
          Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
      3
      The State also filed the crime lab report after the trial court ruled on
Mathews’ motion to suppress, so the trial court did not consider it in ruling on
                                          2
the record that is before us in the appeal. The record on appeal4 reflects that Mathews

bonded out of jail on the same day that he was arrested.

      In May 2013, a grand jury indicted Mathews for possessing cocaine in an

amount of less than one gram. The record shows that in April 2016, nearly three

years after he was indicted, Mathews made his first court appearance in response to

the indictment charging him with possession of cocaine. The reporter’s record from

the trial court’s April 2016 docket call reflects that Mathews told the trial court that

he was in the process of hiring an attorney and that the case was rescheduled on

another docket. In June 2016, Mathews appeared in court, advised the trial court that

he was still “trying to find a lawyer[,]” and the court reset the case. In August 2016,

Mathews appeared for another docket call with an attorney. During the August 2016

docket call, Mathews’ attorney advised the court that Mathews would waive his right

to be arraigned, and that Mathews had decided to plead not guilty to the indictment.

In response, the court set the case on its October 2016 docket. When the court called


Mathews’ motion. While the State relies on the information in Officer Young’s
probable cause affidavit and the crime lab report to support its argument that
Mathews was not prejudiced by the delays that occurred in bringing Mathews’ case
to trial, as we explain in the opinion, the State is not entitled to rely on the
information in these documents because the trial court did not consider them in
ruling on the motion.
      4
        Unless stated otherwise, documents that we refer to in the opinion were
considered by the trial court in ruling on Mathews’ motion.
                                           3
the case on its October 2016 docket, Mathews’ attorney advised the court that given

the delays that had occurred in Mathews’ case, she intended to file a motion asserting

that Mathews had been deprived of his right to a speedy trial. The trial court reset

the case for December 2016, noting in its order resetting the case that it would hear

Mathews’ “Motion for speedy trial” in December.

      On December 2, 2016, Mathews filed two motions asserting his right to a

speedy trial. One of the motions is styled “Motion for Speedy Trial and Alternatively

Motion to Dismiss;” the other is styled “Motion to Dismiss for 6th Amendment

Violations.” Mathew’s Motion for Speedy Trial and Alternatively Motion to Dismiss

asked that the trial court set Mathews’ case for trial on or before December 21, 2016.

Mathews’ Motion to Dismiss for 6th Amendment Violations asked that the trial court

dismiss the case because the delays allegedly had violated Mathews’ right to a

speedy trial. See U.S. CONST. amend. VI (providing that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial”).

      On December 7, 2016, the trial court heard both of Mathews’ motions. During

the hearing, the prosecutor announced that the State was ready to try Mathews’ case

beginning December 12, 2016. In response to that announcement, Mathews’

attorney asked the trial court to hear Mathews’ motion to dismiss. During the hearing

on the motion to dismiss, the prosecutor advised the court that the State could prove

                                          4
that delays had occurred in bringing the case to trial, but “[t]hat’s all I can show.”

The prosecutor also stated: “I cannot tell you the reason for the delay, except that it

fell off the docket.”

      The State called the Liberty County District Clerk, Donna Brown, as its only

witness in the hearing. The prosecutor called Brown to explore why Mathews’ case

had fallen “off the docket.” During the hearing, Brown testified that in 2013, the

deputy clerk responsible for sending out notices of the dockets in criminal cases left

her job as deputy clerk, and that based on the records that were still available in the

clerk’s office, she could not determine whether the deputy clerk responsible for

sending out notices before April 2016 had ever notified Mathews that he was

expected to appear in court. When asked why Mathews’ case had not been routinely

rescheduled on the court’s docket after June 2013, Brown indicated that she did not

know. Brown explained that records in the District Clerk’s office were no longer

available to show whether the parties were notified of the court’s June 2013 docket.

According to Brown, from the records available, no explanation could be provided

about why the clerk’s office had failed to place Mathews’ case on dockets between

June 2013 and April 2016.

      Mathews’ attorney called Mathews and his wife, Louise, in support of his

motion to dismiss. Mathews and Louise both testified that they were living at the

                                          5
same residence where they lived when Mathews was arrested in 2012. According to

Mathews, his home address is listed in the police report.5 Mathews explained that he

had only a vague recollection of the events leading to his arrest in 2012. According

to Mathews, he was driving a rented car when he was arrested, and he indicated that

the records regarding the rental were no longer available because the people who ran

the rental business were no longer there. Matthews testified that he was alone when

the rental car he was driving was stopped in Cleveland, but he was not asked in the

hearing to explain what happened during the stop, where the drugs were found, or

whether he admitted during the stop that the drugs in the car belonged to him.

Mathews also addressed when he was first notified to appear in court. Mathews

testified that after he was arrested, he checked regularly with his bail bondsman

about court dates, but his bail bondsman never told him until 2016 that he was

required to appear before the court regarding his arrest.

      On cross-examination, Mathews agreed that he was unaware of why the rental

records might be important to his defenses in the case. Matthews also agreed that he

and Officer Young were the only witnesses to the stop, that the car he was driving

had been rented from Avis, and that he had not checked with Avis to see if Avis still



      5
        No police report of the stop was offered or admitted into evidence by either
party during the hearing.
                                          6
had its records regarding the rental. Mathews stated that until 2016, he was unware

that a grand jury had indicted him for possession of a controlled substance. Mathews

also testified that before April 2016 no one ever told him that he was required to

appear in court to respond to the indictment charging him with possession.

      On redirect, Mathews stated that the records regarding the rental of the car

would show who rented the car immediately before his wife rented it. He also

explained that the records, if available, were needed so that he could determine if the

car he was driving when he was stopped had been cleaned before it was rented by

his wife. Mathews testified that recently, he had experienced difficulty in obtaining

job interviews because the case had not been resolved.

      Generally, Louise confirmed Mathews’ testimony regarding the fact that they

live at the same address where they lived when Mathews was arrested, that she rented

the car Mathews was driving when he was arrested in Cleveland, and before 2016,

no one had ever notified them that Mathews was expected to appear in court. Louise

agreed that she rented the car from an Avis location in Houston, she claimed that she

no longer had the paperwork relating to the rental, and she testified that she was

unaware of the fact that she might need the paperwork on the rental in connection

with Mathews’ case.




                                          7
      In final argument, Mathews’ attorney focused on the prosecutor’s failure to

produce any testimony excusing the delays that had occurred in bringing Mathews’

case to trial. With respect to how Mathews had been prejudiced by the delays,

Mathews’ attorney argued that Mathews’ difficulty with recalling the details of the

stop “could be important for my case to defend him if there’s a need for a Motion to

Suppress[,]” and she argued that Mathews did not “have any access to the records

from the date that are important in checking the history” on the rental. The prosecutor

pointed out in his argument that Mathews had not complained about any delays when

he first appeared in court in April 2016, noting that Mathews first asserted his right

to a speedy trial in December 2016. According to the prosecutor, the evidence in the

hearing failed to establish that Mathews had been prejudiced by the delays, and he

suggested that Mathews could not have been anxious about a case he never knew

existed until 2016. The prosecutor stated that Mathews had failed to show the delays

had actually prejudiced his defense. The trial court asked the prosecutor if the State

had a videotape of the stop. The prosecutor indicated that an electronic recording of

the stop existed, but that in attempting to review it, he had difficulty getting the

recording to work. The prosecutor stated that based on his efforts to play the

recording before the hearing, that he could not tell if the recording was playable. At

that point the trial court commented, “You see[,] that would be problematic, all the

                                          8
time, you know, where memory would be very important.” The trial court’s

comments about how Young might have been prejudiced by the delays might be

relevant in Mathews’ case are significant given the State’s failure to provide the trial

court with Officer Young’s account or other evidence addressing what happened

during the stop.

      When the hearing concluded, the trial court made oral findings that there was

no evidence that Mathews had been notified of any hearings before 2016, that

Mathews first learned in 2016 that he had been indicted for possession, and that the

delays in Mathews’ case violated Mathews’ right to a speedy trial. The trial court

signed an order dismissing Mathews’ case when the hearing concluded. Neither

party asked the trial court to provide written findings.

                                 Standard of Review

      We note our jurisdiction over the State’s appeal. See Tex. Code Crim. Proc.

Ann. art. 44.01(a)(1) (West Supp. 2016) (authorizing the State to appeal from an

order dismissing an indictment). In determining whether a defendant has been denied

his constitutional right to a speedy trial, courts are required to balance four factors:

(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion

of his right, and (4) whether the accused suffered prejudice. Barker v. Wingo, 407

U.S. 514, 530 (1972); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App.

                                           9
1997). By itself, no single factor is sufficient to require a trial court to find that a

Sixth Amendment violation occurred. See Barker, 407 U.S. at 530, 533; Zamorano

v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Instead, in evaluating speedy

trial claims, courts are required to engage in a balancing process to determine

whether the delays in bringing a defendant’s case to trial deprived the defendant of

a speedy trial. See Barker, 407 U.S. at 533; Zamorano, 84 S.W.3d at 648; see also

U.S. CONST. amend. VI.

      In reviewing a ruling on a speedy trial claim, we apply a bifurcated standard

of review. See Zamorano, 84 S.W.3d at 648. First, the factual components of the

trial court’s ruling are reviewed using an abuse-of-discretion standard. Id. In this

case, since the trial court ruled in Mathews’ favor on his motion to dismiss and the

trial court did not reduce its findings to writing, we presume that the trial court

resolved all of the disputed facts in Mathews’ favor. Id. Consequently, in reviewing

the trial court’s ruling, we must defer to the trial court’s historical findings if those

findings are supported by the record. See id.

      In reviewing legal questions raised by a motion for speedy trial, including the

manner the trial court balanced the Barker factors, a de novo standard applies to our

review. See id; Johnson v. State, 954 S.W.2d at 771. We also apply a de novo

standard in balancing the Barker factors. Id.

                                           10
                                       Analysis

      First, we address the length of the delays that occurred in Mathews’ case. The

record reflects that the trial court dismissed Mathews’ case on December 7, 2016,

over four years after he was arrested. See Shaw v. State, 117 S.W.3d 883, 889 (Tex.

Crim. App. 2003) (noting that the length of delay is measured from the time the

defendant is arrested or formally accused). Generally, upon the defendant’s asserting

a speedy trial right, courts have considered delays approaching one year to be of a

sufficient length to trigger the trial court’s duty to determine whether a constitutional

violation occurred. See Doggett v. United States, 505 U.S. 647, 652 & n.1 (1992);

Shaw, 117 S.W.3d at 889. In its brief, the State acknowledges that the delays that

occurred in Mathews’ case required the trial court to conduct a Barker inquiry. See

Barker, 407 U.S. at 531 (noting that “the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious, complex conspiracy charge”);

Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (presuming that a

thirteen month delay was unreasonable in reviewing the trial court’s ruling denying

the defendant’s motion complaining he did not receive a speedy trial). Additionally,

because the length of the delays in Mathews’ case “stretched well beyond the bare

minimum needed to trigger judicial examination of the claim, this factor—in and of

itself—weighs heavily against the State.” Zamorano, 84 S.W.3d at 649.

                                           11
      Second, we consider the evidence relating to the reasons for any unexpected

delays. When the delay exceeds postponements that are normal in a criminal case,

the burden of justifying the delays falls upon the State. See Emery v. State, 881

S.W.2d 702, 708 (Tex. Crim. App. 1994); Turner v. State, 545 S.W.2d 133, 137-38

(Tex. Crim. App. 1976).

      The evidence showing why the delays in a case occurred and who is

responsible for the delays affect how heavily the length of the delays are to be

weighed against the State. See Zamorano, 84 S.W.3d at 649. In its brief, the State

argues that “much, if not all of the delay appears to be the result of negligence.” The

trial court’s comments reflect that the court blamed the delays that occurred in

Mathews’ case from 2013 until April 2016 on clerking errors, which occurred

because a deputy clerk failed to place the case on the trial court’s dockets and failed

to notify the parties about the case. However, the evidence in the hearing does not

show that the deputy clerk deliberately or intentionally delayed Mathews’ trial, and

the statements the trial court made during the hearing do not show otherwise. For

example, in granting the motion, the trial court commented that the delays in

Mathews’ case occurred because “the clerk doesn’t appear to be taking care of

business.”




                                          12
        Mathews argues the record is silent about the reasons for the various delays

in bringing his case to trial. However, in our opinion, the record is not silent about

all of the periods of delay. There is evidence supporting the trial court’s conclusion

that the delays that occurred between May 2013 and April 2016 were due to the

negligence of a deputy clerk. Since these delays were shown to have been the result

of a deputy clerk’s negligence, that period of the delay weighs against the State but

it is weighed less heavily than an error caused by the intentional or deliberate act of

a county employee. See Zamorano, 84 S.W.3d at 649 (citing Barker, 407 U.S. at

531).

        The record supports the trial court’s conclusion that a deputy clerk’s

negligence accounted for a significant period of the delays that occurred in bringing

Mathews’ case to trial. However, the period that is attributable to the clerk does not

account for all of the periods of delay, as the record shows that approximately eight

months of the delays relate to the trial court’s decisions allowing Mathews to obtain

an attorney and to allow Mathews’ attorney time, after Mathews obtained counsel,

to prepare the case for trial. Given that eight months is the time the trial court gave

Mathews to allow him to prepare for trial, this eight-month period does not count

against the State. See State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999)

(noting that valid reasons for delays in a case do not count against the State).

                                          13
      Nonetheless, the record shows that a delay of more than three years is

attributable to the State. With respect to the approximate nine-month delay between

Mathews’ arrest in August 2012, and his indictment in May 2013, the State failed to

establish that the period of delay was normal or to establish why it took nine months

to indict Mathews in the case. Since the State bore the burden of excusing delays,

we are also required to presume that no valid reason exists for the nine-month delay.

See Turner v. State, 545 S.W.2d at 137-38. In our opinion, the record shows that

approximately forty to forty-two months of inexcusable delays are attributable to the

State. See Zamorano, 84 S.W.3d at 650. Additionally, the record supports the trial

court’s decision to weigh the inexcusable delays against the State. See Dragoo v.

State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

      Third, we consider whether the defendant timely demanded that he be given

a speedy trial. Barker, 407 U.S. at 528-29, 531-32; see also Munoz, 991 S.W.2d at

825 (placing the burden on the defendant to prove that he timely demanded his right

to a speedy trial). In its brief, the State argues that Mathews should have immediately

requested a speedy trial when he first appeared in court in April 2016. According to

the State, the fact that Mathews did not immediately demand a speedy trial shows

that he “did not really want a speedy trial and that he was not prejudiced by the lack

of one.” However, the trial court’s comments in the hearing reflect that the trial court

                                          14
attributed Mathews’ failure to immediately demand a speedy trial to the fact that he

was not represented by counsel at that time.

      Courts are often skeptical about defendants who complain about delay,

because delays in criminal cases often work to the defendant’s advantage. See

Barker, 407 U.S. at 521. Nevertheless, unreasonably long delays may sometimes

result in the defendant’s inability to present exculpatory evidence. Id. at 532. While

defendants in criminal cases have no duty to bring themselves to trial, a defendant’s

failure to timely demand a speedy trial may sometimes make it difficult for the

defendant to prove that the delays were prejudicial. Id. at 527, 531-32.

      While Mathews did not demand a speedy trial when he appeared without the

benefit of counsel in April 2016, he did demand a speedy trial in December 2016.

Additionally, the record shows that during the docket call that occurred in October

2016, the State and the trial court were advised by Mathews’ attorney that she

planned to file a motion asserting that Mathews had been deprived of his right to a

speedy trial. See Zamorano, 84 S.W.3d at 651 n.40 (noting the difference between

filing a motion to dismiss alleging a speedy trial violation and a motion seeking a

speedy trial). The State has not argued that it advised the trial court during the docket

call that occurred in October 2016 that it was ready for trial, and the record shows

that Mathews demanded a speedy trial less than four months after obtaining counsel.

                                           15
Although Mathews’ attorney did not file a motion seeking a speedy trial in August

2016 when she first appeared in court representing Mathews, the trial court’s

decision granting Mathews’ motion reflects that the trial court did not find that

Mathews failed to timely assert his right to a speedy trial because his attorney failed

to file a motion demanding a speedy trial before December 2016. The State failed to

develop a record to show why Mathews’ attorney waited four months before

demanding a speedy trial, and it is possible the trial court viewed the four-month

delay as the period Mathews’ attorney needed to investigate and consult with

Mathews regarding the defenses available to Mathews in the case. Moreover, the

record does not show that Mathews’ delay in demanding a speedy trial prejudiced

the State. See Zamorano, 84 S.W.3d 652.

      The fourth and final Barker factor addresses whether the defendant was

prejudiced by any periods of unjustified delays that are attributable to the State. See

Barker, 407 U.S. at 532. Prejudice flowing from any periods of unjustified delay are

determined by examining the various interests the Sixth Amendment is designed to

protect, which include (1) preventing oppressive pretrial incarceration, (2)

minimizing the anxiety and concern of the accused, and (3) limiting the possibility

that the defendant’s ability to defend against the claims the State has brought against

him in a case were impaired. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826.

                                          16
Of these, evidence demonstrating that a defendant’s ability to defend against the

charges in a case were impaired is the most serious consideration because “the

inability of a defendant adequately to prepare his case skews the fairness of the entire

system.” Barker, 407 U.S. at 532.

      In Munoz, the Court of Criminal Appeals explained that a defendant must

meet his burden to show prejudice from any periods of unjustifiable delays, but he

is not required to show “actual prejudice” from them. Munoz, 991 S.W.2d at 826

(citation omitted); State v. Wei, 447 S.W.3d 549, 555 (Tex. App.—Houston [14th

Dist.] 2014, pet. ref’d). In Mathews’ case, the evidence presented to the trial court

in the hearing on Mathews’ motion to dismiss does not show that Mathews suffered

any periods of oppressive pretrial incarceration. Instead, the record shows that he

bonded out of jail on the day he was arrested. There was also no evidence showing

that Mathews suffered anxiety beyond that normally expected from the fact that the

defendant had been indicted for a felony. See Shaw, 117 S.W.3d at 890 (noting that

the record in that case failed to show “any anxiety or concern beyond the level

normally associated with being charged with a felony”).

      However, there is some evidence from which the trial court could have

determined that the delays attributable to the State might have prejudiced Mathews’

defense. See Barker, 407 U.S. at 532. Based on the testimony in the hearing, the trial

                                          17
court could reasonably conclude that Mathews could no longer obtain all of the

records that would be relevant to his wife’s rental of the car he was driving when he

was stopped. Since the State failed to provide the trial court with the evidence in its

possession showing that Mathews told Officer young that he would find drugs on

the floorboard of the car, the trial court could have reasonably inferred that the

records regarding the rental were important in proving whether Mathews knowingly

or intentionally possessed the drugs that were found in the car and in proving that

the drugs belonged to Mathews. The reporter’s record of the hearing reflects that the

trial court commented the rental records “would be a factor” because “there could

be drugs in a car that was rented” since “the drugs were not on his person[.]”

Additionally, the reporter’s record of the hearing reflects that the State

acknowledged that it had a video and audio recording of the stop, and that the State

had been unable to get the recording to work. Given Mathews’ testimony that he

could no longer recall the details about the stop, the trial court could have reasonably

viewed the recording as relevant evidence no longer available for Mathews to use in

the trial. See Shaw, 117 S.W.3d at 890.

      When the defendant has shown that he has suffered some prejudice from the

delays attributable to the State, the burden shifts to the State to show that the

defendant suffered “no serious prejudice beyond that which ensued from the

                                          18
ordinary and inevitable delay.” Munoz, 991 S.W.2d at 826 (citation omitted); Wei,

447 S.W.3d at 555. In this case, the State failed to show that the records concerning

the rental of the car were still available, to prove that the recording of the stop was

still available, or to prove that rental records and the recording were irrelevant to

Mathews’ defense. Additionally, the State failed to produce any testimony showing

that Officer Young and the employee of the crime lab who tested the material Officer

Young took from the car were still available to testify in Mathews’ trial.

      In its brief, the State points to Officer Young’s probable cause affidavit and

to the crime lab report as evidence showing that Mathews was not prejudiced by any

of the delays that occurred in bringing Mathews to trial. Those documents were not

before the trial court when it ruled on Mathews’ motion, and we cannot consider

them in deciding whether the trial court properly granted the motion. See Davis v.

State, 227 S.W.3d 733, 737 (Tex. Crim. App. 2007) (stating that the court of appeals

properly declined to take judicial notice of exhibits that were not considered by the

trial court and were not part of the appellate record); see also Jack v. State, 149

S.W.3d 119, 121 n.1 (Tex. Crim. App. 2004) (explaining that appellate courts cannot

consider factual assertions outside the appellate record); Gaston v. State, 63 S.W.3d

893, 900 (Tex. App.—Dallas 2001, no pet.) (noting that generally, “appellate courts

take judicial notice of facts outside the record only to determine jurisdiction over an

                                          19
appeal or to resolve matters ancillary to decisions that are mandated by law . . .” and

“are reluctant to take judicial notice of facts that go to the merits of the dispute”).

Even though these documents contain information that tend to rebut Mathews’

claims of prejudice, our review of the trial court’s ruling is required to be based upon

the “arguments, information, and evidence that was available to the trial court at the

time it ruled.” Shaw, 117 S.W.3d at 889. Consequently, we cannot consider the

probable cause affidavit and crime lab report or the arguments the State makes in its

brief relying on these documents since the State failed to introduce them in the

hearing. See id.

      We hold the trial court did not abuse its discretion by inferring the delays

attributable to the State were prejudicial to Mathews’ defense. See Zamorano, 84

S.W.3d at 648 (applying abuse of discretion standard to the factual component of

the trial court’s ruling). After weighing the fourth Barker factor, we conclude that it

also weighs in Mathews’ favor.

      In balancing the four Barker factors as a whole, and using a de novo standard

of review to balance these factors, we conclude that the overall balance favors

affirming the trial court’s ruling on the motion to dismiss. See Barker, 407 U.S. at

533-36. We hold the trial court properly dismissed Mathews’ case, we overrule the

State’s sole issue, and we affirm the trial court’s order.

                                          20
      AFFIRMED.



                                            ___________________________
                                                   HOLLIS HORTON
                                                        Justice


Submitted on May 24, 2017
Opinion Delivered July 19, 2017
Do Not Publish

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




                                       21
