                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________
                                NO. 09-15-00024-CR
                               _________________

                 CEDRIC RAYMOND COLQUITT, Appellant

                                          V.

                          THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 410th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-09-10759-CR
________________________________________________________________________

                            MEMORANDUM OPINION

      Cedric Raymond Colquitt challenges his conviction for aggravated robbery

on the grounds that: (1) the trial court abused its discretion in refusing to strike the

testimony of the complaining witnesses that he contends violated the Rule of

exclusion of witnesses; and (2) the evidence is legally insufficient to show that he

used or exhibited a firearm during the commission of the robbery. We affirm the

trial court’s judgment.



                                           1
                                   I. Background

      Brent Brewer testified that he was at The Woodlands Mall with his friend

and coworker, Thomas Lupton, on February 18, 2013. While at the mall, a man,

identified by Brewer as Colquitt, approached them and asked if they were

interested in buying a couple of iPhones “for cheap[.]” According to Brewer,

Colquitt told them he would sell them both phones for $320 and denied that the

phones had been stolen. Brewer recalled that Colquitt appeared friendly and non-

threatening, so Brewer agreed to purchase the phones and went to an ATM to

retrieve the money while Colquitt waited at another store. Brewer testified that

Colquitt did not have the phones with him in the mall, so Colquitt asked Brewer

and Lupton to follow him to his vehicle. Brewer testified that he assumed the

phones were in his vehicle, so they followed Colquitt. While walking to the

vehicle, Colquitt gave them his cell phone number. Brewer called the number and

saw that Colquitt’s cell phone rang.

      When they arrived at Colquitt’s vehicle, Colquitt asked Brewer and Lupton

to get inside the vehicle and told them that he was just going to drive to the front of

the mall. After they got into the vehicle and started moving, Brewer realized they

turned away from the mall, so Brewer asked Colquitt where they were going.

According to Brewer, Colquitt responded that he was taking them to his place,

                                          2
which he represented was a loft by the mall. As they drove further away from the

mall, Brewer testified that he started to get scared and nervous. Brewer testified

that Colquitt eventually turned into the Marquis Apartment complex. Once

Colquitt parked, he turned to Brewer and asked him for the money for the phones.

When Brewer told Colquitt that he would only give him the money after seeing the

phones, Colquitt told Brewer that he would have to “‘go inside’” to get the phones

and that they could go with him. Brewer and Lupton followed Colquitt up to the

second floor of one of the apartment buildings and as Colquitt approached one of

the doors, he announced that he had forgotten his keys in the car, then turned away

from Brewer. When Colquitt turned back around, Colquitt lifted his t-shirt to

reveal the handle and trigger guard of a darker-colored gun that was tucked inside

his waistband. Brewer testified that he “immediately thought it was a real pistol.”

Brewer recalled that Colquitt had been wearing a white t-shirt with blue-jean shorts

that day. Brewer had not seen the gun tucked into Colquitt’s shorts before Colquitt

revealed the gun to them at the apartment complex.

      According to Brewer, when Colquitt turned around, his demeanor

immediately changed and he became “[v]ery demanding and aggressive” and said,

“‘Give me the money[.]’” Brewer testified that he was scared for his life. Because

he was in fear of bodily injury or death due to the gun exhibited by Colquitt,

                                         3
Brewer immediately gave Colquitt all the money he had in his possession. Colquitt

“snatched” the money from Brewer’s hand, turned around, and ran down the stairs.

      Brewer called 9-1-1 to report the incident. The 9-1-1 recording was played

for the jury. Brewer testified that he was in shock when he called 9-1-1 and that his

laugh during the call was a reflection of his feeling of disbelief and disappointment

in himself for allowing himself to be placed in a situation where he could be

robbed. He explained that he did not specifically tell the 9-1-1 operator that the

suspect had a gun because he was “flustered” and shaken up, and he believed

telling the operator that he had been robbed implied that a gun had been involved.

      Brewer testified that a few months after the incident, he was approached by

a detective to take part in a line-up to identify the man who had robbed him. He

testified that he picked a photograph of Colquitt out of a photospread presented to

him by the detective. At the time of the line-up, Brewer told the detective that he

was only seventy-five percent certain that Colquitt was the person who had robbed

him because Colquitt appeared thinner in the photograph than he had remembered.

Though he was not one-hundred percent certain during the line-up, Brewer

testified that at the time of trial, he was certain that Colquitt was the person who

had robbed him.



                                         4
      Thomas Lupton testified that he and Brewer were at the Woodlands Mall on

February 18, 2013, when Colquitt approached them and offered to sell them two

iPhones. Lupton testified that he was not interested in purchasing one of the

phones because he already had one, but Brewer was interested in purchasing the

phones. Colquitt offered to sell both phones for $320, and Brewer went to an ATM

and withdrew the money for the phones. While walking to Colquitt’s vehicle,

Lupton recalled that Colquitt gave Brewer his phone number, and Brewer called

the number and confirmed it was a working number. Lupton testified that they got

into Colquitt’s vehicle and Colquitt drove to the Marquis Apartment complex.

Lupton recalled that when Colquitt had them get in the vehicle, he told them that

they were going to leave the mall parking lot and go to a loft or an apartment

nearby. After arriving and parking at the apartment complex, they followed

Colquitt to an apartment on the second floor. Lupton testified that as Colquitt

approached the apartment, he told them he had forgotten his keys. He recalled that

Colquitt positioned himself between Lupton and Brewer, pulled his shirt up at

Brewer, then aggressively yelled at Brewer to give him the money. Lupton testified

that Brewer immediately handed Colquitt the money and that as Colquitt turned,

Lupton immediately saw “what look[ed] like a pistol in [Colquitt’s] waistband[,]”

so Lupton backed up. Lupton testified that he only saw the butt of the gun and the

                                        5
trigger guard and recalled that the gun was black. Lupton believed Colquitt

exhibited a real gun, and in conjunction with his demand, demeanor, and tone,

Lupton was in fear for his life. Lupton testified that he has no doubt Colquitt is the

person that displayed a gun and committed aggravated robbery against Brewer.

      Lupton admitted that after the incident involved in this case, he was arrested

for theft from a store and pled guilty to that offense. Lupton testified that he had no

reason to lie about the incident involving Brewer and Colquitt and denied that he

would perjure himself to help Brewer. During cross-examination, Lupton admitted

that prior to the trial, he told defense counsel that he did not feel threatened by

Colquitt the day of the incident and that he did not know what the gun looked like.

However, Lupton explained that he had just received his sentencing in his theft

case and was “flustered” during his conversation with counsel.

      At trial, an officer testified that while on patrol on February 18, 2013, he

responded to a “robbery call” at an apartment complex around 2 p.m. Upon arrival,

he located the complainant, Brewer, who appeared “shaken” and “kind of

nervous,” which the officer testified was “typical of a victim.” Brewer’s coworker,

Lupton, was also present and appeared “shaken” and “nervous” as well. As part of

his investigation, the officer was made aware that a handgun had been used during

the robbery. The officer testified that a handgun is a firearm, which is a deadly

                                          6
weapon. Brewer and Lupton described the suspect to the officer. The officer

testified that he did not see any signs to indicate that Brewer or Lupton were not

being truthful with him regarding the incident.

      The officer testified that Brewer and Lupton told him that they were at a

store in the mall when someone approached them and asked them if they wanted to

buy two iPhones for $320. The man gave them his mobile phone number, which

they called to confirm he had given them a working number. They told the officer

that they went to the ATM and withdrew the money, and then they met the man

and got into his vehicle. The officer testified that Brewer and Lupton both provided

witness statements and the statements were consistent with one another.

                             II. Violation of the Rule

      In his first issue, Colquitt contends that “[t]he trial court erred by allowing

[Lupton] to testify after he and [Brewer] violated the rule of exclusion of

witnesses.” Colquitt contends that Lupton’s communication with Brewer

“influenced Lupton’s testimony, as Lupton’s testimony corroborated Brewer’s

testimony.” To support his contention that Lupton and Brewer violated the Rule,

Colquitt argues that during the lunch recess, they were observed walking and

talking together, and were overheard discussing the trial.



                                          7
      The record reveals that at the beginning of the trial, all witnesses were sworn

but, neither party invoked Rule 614 of the Texas Rules of Evidence. During the

direct examination of Brewer, the trial court informed the parties that an employee

of the court was meeting the delivery person to pick up the jury’s lunch. Shortly

thereafter and towards the end of the direct examination of Brewer, the court

recessed the trial for lunch. The trial court stated on the record, “Let’s pause there.

We’ve got a hot lunch. Folks, we’re going to take about 30 minutes. About 1:15,

we’ll start back. Do not be talking about the case. Just enjoy your lunch. Please

rise.” The record does not specifically state to whom the trial court was speaking

when he issued the instruction not to speak about the trial; however, from the

surrounding context in the record, we presume he was speaking to the members of

the jury.

      After lunch, trial resumed with the direct examination of Brewer. When

defense counsel cross-examined Brewer after the lunch break, Brewer denied that

he and Lupton had recently compared stories about the incident. After the trial

court released Brewer, the State called Lupton to testify. At this point in the trial,

defense counsel informed the trial court that they would like to invoke “the




                                          8
Rule[.]” 1 The trial court then stated, “The Rule has been invoked, young man. Be

sure you don’t talk about what’s going on in here. You can talk to lawyers, nobody

else.” The trial court then asked the attorneys to make sure all of the witnesses

understood that the Rule had been invoked.

      During defense counsel’s cross-examination of Lupton, Lupton denied

speaking to Brewer recently about the details of the incident. After the court

excused Lupton, the trial judge made the following statement to Lupton, “Young

man, listen to my instruction. Don’t talk to anybody about anything in here. Don’t

be listening through doors. Don’t talk to Mr. Brewer at all until this trial is over.

Counsel will let you know when the trial is over. Okay?” Lupton responded, “Yes,

sir.” The trial court then asked for Brewer to return to the courtroom.

      Outside of the presence of the jury, the trial court asked Brewer whether he

was given the court’s instruction not to talk to anyone and “not to be worried about

what’s going on in the courtroom when you went outside[.]” Brewer responded

that he had received the instruction. The trial court informed the parties that he had

received information that Brewer had been listening in at the courtroom door

during the trial. A courthouse employee was sworn in and testified that she had

      1
        “The Rule,” otherwise referred to as Texas Rule of Evidence 614, provides
that “[a]t a party’s request, the court must order witnesses excluded so that they
cannot hear other witnesses’ testimony.” Tex. R. Evid. 614.
                                         9
observed Brewer “standing at the door with his ear to the door.” Defense counsel

questioned Brewer about whether he was listening to the trial through the door, and

Brewer responded that he “wasn’t necessarily listening[,]” but was reading the

board by the door to entertain himself. Brewer estimated that he was standing by

the door for about twenty seconds and that during that time he could not hear

anything that was said in the courtroom. Counsel also questioned Brewer about

whether he went to lunch with Lupton earlier that day. Brewer indicated that they

had gone to lunch but that they had not discussed the case.

      The trial court warned Brewer about the serious nature of the instructions

given by the court and that if Brewer violated the rules again, the court would find

him in contempt and put him in jail for up to thirty days. The trial court then

allowed defense counsel to question Lupton outside the presence of the jury.

Lupton admitted that he and Brewer had lunch together, but he continued to deny

that they had discussed their respective trial testimony. The trial court reiterated his

instruction to Lupton not to speak about the trial and warned that a violation of the

Rule could result in jail time.

      At the conclusion of the hearing, defense counsel moved for a mistrial on the

basis that Brewer and Lupton had violated the Rule. In the alternative, defense

counsel asked the trial court to instruct the jury to disregard both witnesses’

                                          10
testimony. The trial court denied both requests but ruled that defense counsel could

recall both Brewer and Lupton and cross-examine them on the allegation that they

were colluding in regards to their testimony in this case. The State argued that

Brewer, as the victim in a criminal case, was excluded from the Rule unless the

court found that his testimony would be materially affected by hearing other

testimony at trial. The State also pointed out that Brewer had already testified

before he allegedly listened in at the courtroom door. The trial court acknowledged

the State’s argument, but because Brewer had violated the court’s instruction, the

court determined that defense counsel could recall Brewer to question him about

the allegations.

      After a short recess, the trial court reconvened the hearing. A trial spectator

was sworn in as a witness. The spectator testified that when the trial court recessed

for lunch earlier that day, she observed Lupton and Brewer walking and talking to

one another. According to the spectator, she tried to get closer to them to hear what

they were saying and overheard one word, “‘Marquis.’” The trial court reiterated

that defense counsel could recall Lupton and Brewer and could also call the

spectator to testify before the jury as to what she had observed during the lunch

break, but the trial court refused to grant Colquitt’s motion for mistrial.



                                          11
      Defense counsel called Brewer during its case-in-chief and asked Brewer if

someone had observed him listening in at the courtroom door during the trial.

Brewer responded that someone had accused him as stated, and he agreed that he

should not have been standing by the door. Brewer maintained that he did not

overhear anything while he was standing by the door. Brewer denied talking about

the case with Lupton during the lunch break. Brewer also denied fabricating any of

his testimony or colluding with Lupton to fabricate the allegations against Colquitt.

He testified that nothing he overheard being said in the courtroom influenced the

way he testified at trial. The defense rested its case without calling any other

witnesses to testify.

      On appeal, Colquitt does not challenge the trial court’s denial of his motion

for mistrial. Colquitt only challenges the trial court’s ruling to allow Lupton to

testify after Brewer and Lupton had allegedly violated the Rule. Texas Rule of

Evidence 614, commonly referred to as “the Rule,” codifies the witness exclusion

rule. See Tex. R. Evid. 614. When it is invoked by either party or the trial court,

with some exceptions not applicable here, the Rule requires the exclusion of

witnesses from the courtroom during trial so that they cannot hear the testimony of

other witnesses. See id. The purpose of the Rule is “to prevent the testimony of one

witness from influencing the testimony of another, consciously or not.” Russell v.

                                         12
State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Article 36.06 of the Texas

Code of Criminal Procedure provides that the court must instruct a witness placed

under the Rule that “they are not to converse with each other or with any other

person about the case, except by permission of the court, and that they are not to

read any report of or comment upon the testimony in the case while under [the]

rule.” Tex. Code Crim. Proc. Ann. art. 36.06 (West 2007). Article 36.05 provides

that witnesses placed under the Rule are not allowed to hear any testimony in a

case. Id. art. 36.05.

       We review a trial court’s decision on whether to exclude a witness who has

violated the Rule for an abuse of discretion. See Webb v. State, 766 S.W.2d 236,

240 (Tex. Crim. App. 1989). If a witness violates the Rule, the trial court may,

taking into consideration all of the circumstances, allow the testimony of the

potential witness, exclude the testimony, or hold the violator in contempt. Bell v.

State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). A violation of the Rule only

becomes reversible error when the objected-to testimony is admitted and the

complaining party is harmed. Webb, 766 S.W.2d at 239–40.

       In his appellate brief, Colquitt complains that Brewer and Lupton violated

the Rule because someone overheard them talking about the trial during the lunch

recess and because they went to lunch together. As evidence that the two had

                                        13
spoken of the trial during the lunch recess, Colquitt points only to a trial spectator’s

testimony that she overheard one of the men say the word “‘Marquis,’” which is

the name of the apartment complex where Colquitt is alleged to have committed

the underlying offense. Brewer and Lupton admitted going to lunch together

during the recess, but both men denied talking about the trial during lunch.

      Colquitt argues that this was a violation of the Rule and that it occurred after

Brewer had testified but before Lupton’s testimony. Colquitt argues that the

discussion influenced Lupton’s testimony. He argues that Lupton had previously

told defense counsel that he did not know what the gun looked like, but after

having lunch with Brewer, he testified that the gun was black. However, the record

reflects that Lupton’s memory was not necessarily influenced by Brewer during

the trial. While cross-examining Lupton on this issue, defense counsel asked

Lupton why he had not recalled that the gun was black when counsel spoke to

Lupton prior to trial. Lupton’s ability to recall the color of the gun at trial and his

inability to recall what the gun looked like when he spoke to defense counsel prior

to trial is not evidence that Lupton’s conversation with Brewer at lunch is what

influenced Lupton’s memory. There are a number of possible explanations to

account for this variant.



                                          14
      Regardless, even if we were to assume that Brewer and Lupton had spoken

about the trial during lunch, our review of the record reveals that the Rule had not

been invoked by either party until after the lunch recess. As such, the witnesses’

conduct or discussions held during the lunch recess and before they had been

placed under the Rule could not have been a violation of the Rule. See Tex. R.

Evid. 614; see also Oliver v. State, No. 01-93-01069-CR, 1994 WL 649097, at *6–

7 (Tex. App.—Houston [1st Dist.] Nov. 17, 1994, pet. ref’d) (not designated for

publication) (concluding the trial court did not abuse its discretion in refusing to

give a limiting instruction when the record did not show that that the witnesses

were placed under the Rule before their conversation took place); Coons v. State,

758 S.W.2d 330, 336 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d)

(concluding that the trial court did not err by refusing to exclude the testimony of a

witness based on the witness’s alleged communication with the complainant in a

separate case before invocation of the Rule at trial).

      The only other conduct identified to the trial court that could have been

considered a violation of the Rule was Brewer’s alleged attempt to listen to the

trial through the courtroom door. However, Colquitt admits on appeal that because

Brewer had already testified at the time he was caught listening at the door,

Brewer’s testimony could not have been influenced by Lupton’s testimony.

                                          15
Colquitt argues that Brewer was likely listening because “[he] was curious as to

whether Lupton was testifying in accordance with how he and Brewer had planned

their testimony.” Moreover, the testimony at trial was that Brewer was only

standing by the door for twenty seconds and did not overhear any of the trial

testimony during that short period of time. As such, Colquitt has failed to show

harm from any violation of the Rule by Brewer. Colquitt argues that he suffered

harm as a result of Brewer and Lupton’s violation of the Rule; however, his

argument that he suffered harm is based not on Brewer and Lupton’s violation of

the Rule, but rather, on his allegation that they had communicated with one another

about the facts of the case prior to trial and prior to the Rule’s invocation. We

conclude there is no reversible error because Colquitt has failed to show that he

was harmed by any violation of the Rule. See Webb, 766 S.W.2d at 239–40. We

overrule Colquitt’s first issue.

                           III. Sufficiency of the Evidence

      In his second issue, Colquitt contends the evidence was insufficient to

support the judgment of conviction for the offense of aggravated robbery.

Specifically, Colquitt contends that the evidence was insufficient to show that he

used or exhibited a deadly weapon in the course of committing theft.



                                         16
      When reviewing the sufficiency of the evidence, we view all evidence in the

light most favorable to the verdict and determine, based on that evidence and any

reasonable inferences therefrom, whether a rational factfinder could have found the

essential elements of the offense beyond a reasonable doubt. Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011); see Brooks v. State, 323 S.W.3d 893,

899, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). It is not our role to sit as the thirteenth juror, and we may not substitute

our judgment for that of the factfinder by re-evaluating the weight and credibility

of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)

(quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). We defer

to the factfinder’s responsibility to fairly resolve conflicts in testimony, weigh the

evidence, and draw all reasonable inferences from basic facts to ultimate facts. Id.

(quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

      A person commits robbery if, in the course of committing theft and with the

intent to obtain or maintain control of the property, he “intentionally, knowingly,

or recklessly causes bodily injury to another” or “intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death.” Tex. Penal

Code Ann. § 29.02(a) (West 2011). A person commits aggravated robbery if he

commits robbery and “(1) causes serious bodily injury to another; (2) uses or

                                         17
exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens

or places another person in fear of imminent bodily injury or death, if the other

person is . . . 65 years of age or older; or . . . a disabled person.” Id. § 29.03(a). The

offense of aggravated robbery is a first degree felony. Id. § 29.03(b). A deadly

weapon includes “a firearm or anything manifestly designed, made, or adapted for

the purpose of inflicting death or serious bodily injury[,]” or “anything that in the

manner of its use or intended use is capable of causing death or serious bodily

injury.” Tex. Penal Code Ann. § 1.07(17) (West Supp. 2016).

      Colquitt contends that the evidence is legally insufficient to support the

jury’s conclusion that he used or exhibited a deadly weapon during the commission

of the offense because the evidence showed that (1) Brewer did not mention the

gun when he called 9-1-1; (2) officers did not respond to the call as promptly as

they would for an aggravated robbery call; (3) Brewer and Lupton would have

been able to see any gun underneath Colquitt’s thin t-shirt before the time they

allege he revealed it; (4) Brewer’s behavior following the alleged aggravated

robbery was inconsistent with how someone would respond after being robbed and

threatened with a firearm; and (5) there was no evidence submitted at trial that

police recovered the gun allegedly exhibited by Colquitt during the robbery.



                                           18
       Colquitt contends that the only evidence offered at trial to support the

allegation that he used a gun was the officer’s testimony recounting the report

given by Brewer the day of the robbery and the testimony of Brewer and Lupton.

Colquitt argues that Brewer and Lupton’s testimony was not credible because they

had the opportunity to create a false story about the existence of the gun and were

motivated to lie about its existence to essentially “save face” and “deflect away

from them the fact [that] they were attempting to purchase what would have very

likely been stolen goods[.]”

      In determining whether the evidence is sufficient to support a conviction, we

are required to defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility. Brooks, 323 S.W.3d at 894, 899,

912. Here, both Brewer and Lupton testified that Colquitt lifted his shirt to exhibit

a gun while demanding that Brewer give him the money. Both men testified that

they believed the gun was a “real” firearm. Both men testified that Colquitt’s

exhibition of the gun left them in fear for their lives. The lack of physical evidence,

i.e., the gun used by Colquitt, is simply a factor for the jury to consider in weighing

the evidence presented by the State. See Bailey v. State, No. 05-09-00959-CR,

2011 WL 1237662, at *4 (Tex. App.—Dallas Apr. 1, 2011, pet. ref’d) (mem. op.,

not designated for publication); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—

                                          19
Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). Based

on the evidence, the jury could have reasonably concluded that Colquitt exhibited a

gun during the commission of the robbery. We conclude the evidence is sufficient

to support the jury’s conviction of aggravated robbery. See Fisher v. State, No. 01-

11-00516-CR, 2013 WL 4680226, at * 4 (Tex. App.—Houston [1st Dist.] Aug. 29,

2013, pet. ref’d) (mem. op. on reh’g, not designated for publication) (concluding

single eyewitness testimony sufficient to support conviction for aggravated

robbery); Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (affirming conviction for aggravated robbery when sufficiency of

evidence supported by single witness’s testimony); Paige v. State, No. 05-03-

00464-CR, 2004 WL 1472214, at *3–4 (Tex. App.—Dallas July 1, 2004, no pet.)

(not designated for publication) (concluding evidence factually sufficient to

support finding that defendant used and exhibited a deadly weapon when both

complainants testified that defendant lifted his shirt to reveal a brown gun handle

and demanded money, that they believed defendant possessed a real gun and felt

threatened by him, and immediately complied with the defendant’s demand); see

also Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (affirming

conviction for attempted murder when only one witness testified that they saw

defendant with a gun). We overrule Colquitt’s second issue.

                                        20
       Having overruled Colquitt’s appellate issues, we affirm the judgment of the

trial court.

       AFFIRMED.



                                             ______________________________
                                                    CHARLES KREGER
                                                         Justice

Submitted on May 2, 2016
Opinion Delivered December 7, 2016
Do not publish

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




                                        21
