Affirm and Opinion Filed March 27, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-00863-CR

                         LAWRENCE FRANK CROUSE, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 2
                                   Collin County, Texas
                           Trial Court Cause No. 002-87861-2011

                                          OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                 Opinion by Justice FitzGerald
        In a trial before the court, appellant was convicted of driving while intoxicated and

sentenced to thirty days in jail, suspended for eighteen months, and a $50 fine. In five issues on

appeal, appellant contends the evidence is insufficient to support his conviction and the trial

court erred in admitting evidence that was procured through an illegal search and seizure and not

properly authenticated. Concluding appellant’s arguments are without merit, we affirm the trial

court’s judgment.

Sufficiency of the Evidence

       In his fourth and fifth issues, appellant challenges the sufficiency of the evidence to

support his conviction. Specifically, appellant contends there was insufficient evidence to

establish the reason appellant was intoxicated or that he was intoxicated in a public place.
       At 1:30 a.m. on May 4, 2011, officers George White and Jennifer Larue spotted

appellant’s red Toyota sitting in a field with the lights on. Appellant began to drive around in a

circle, as if he did not know where he was going. The car then left the field and continued into a

parking lot for an industrial building. There were eighteen-wheelers and other work vehicles

parked in the parking lot. The officers turned on their lights to initiate a traffic stop, but

appellant’s car continued through another portion of the field and onto a gravel road leading to

the highway. Officer White pulled the police car in front of appellant’s car to block his path.

Although it was not raining, appellant had his windshield wipers on, as well as, his turn signal.

       The officers questioned appellant about where he lived and where he was coming from.

Appellant seemed confused, disoriented, and unaware of where he was. When the officer asked

what date it was, appellant responded May 16th, not the true date of May 4th. Officer White

described appellant’s speech as slurred and thick-tongued. Appellant fidgeted, his pupils were

dilated, and he would not make eye contact with the officers. Every time the officers asked

appellant a question, he would look off in a different direction. Although the officers did not

smell alcohol, Officer Larue thought appellant appeared to be “on something.” Appellant had a

difficult time balancing when he walked around the vehicle, and he leaned up against the vehicle

with his body at a slant while he was answering the officers’ questions.

       Appellant identified himself as “Junior Crouse” and told the officers he did not have his

driver’s license with him. He first claimed he had an Ohio driver’s license and then one from

Texas. The officers could not verify either license. Appellant was wearing a hospital band on his

wrist bearing the name “Lawrence Frank Crouse.” He told the officers that a guy told him to go

into the field, but no one else was around. Appellant also told the officers he was a registered

nurse and was coming from Dallas after getting some gas.




                                                –2–
       The officers found some medical release papers on the front seat of appellant’s car. When

they asked appellant about the papers, he responded that he had been in the hospital that day for

chronic back pain and had daily checks for depression. The release papers listed all of appellant’s

medications, and they all had warnings about the possibility of dizziness that could affect

operating a motor vehicle or dangerous equipment. Specifically, the discharge summary showed

that the medications prescribed included Flexoril, a muscle relaxant, and Vicodin, a pain

medication. Both medications included the warnings: “DO NOT DRIVE, ride a bicycle or

operate heavy machinery until you know how it will affect you,” and “May cause drowsiness

when taken with alcohol, muscle relaxant, sedative or pain medication. Use with caution.”

Concerned appellant had some mental health issues, the officers unsuccessfully attempted to

contact his mother at the address listed on the insurance papers.

       Officer Larue administered the standardized field sobriety tests. During the HGN test,

appellant’s eyes would not follow Officer Larue’s pen, he moved his head, and he swayed back

and forth. Officer Larue observed six clues, indicating intoxication. Officer Larue testified

alcohol and narcotics cause HGN. During the walk-and-turn test, appellant missed the heel-to-toe

position, raised his arms more than six inches, stepped off the line, turned improperly, and took

ten steps instead of the nine he was instructed to take. The officer observed six clues, indicating

intoxication. The officer also stated that during the testing process appellant tried to walk away

several times. Appellant told the officer that he had leg weakness from his back surgery. Before

taking the one-leg stand test, appellant told Officer Larue that he could not do a one-leg stand

“on a good day” but would try the test anyway. During the test, appellant swayed, put his foot

down, and did not count as instructed. Officer Larue observed three clues, indicating

intoxication. Based on her observations, Officer Larue arrested appellant for public intoxication.

When Officer Larue called her sergeant, he told her to charge appellant with DWI and ask for a

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blood test. The officer further testified that at one point, appellant was so off balance that Officer

Larue had to grab his handcuffs to prevent him from falling down.

       Appellant agreed to provide a blood specimen. His blood was drawn at a hospital. The

lab results showed the following drugs in appellant’s system: Alprazolam, 0.006 milligrams per

liter; Lorazepam 0.02 milligrams per liter; Cyclobenzaprine (no quantification performed); and

Mirtazapine (no quantification performed).

        Both officers testified appellant did not have normal use of his mental and physical

faculties. The record also contains the videotape showing the traffic stop and testing process and

appellant’s medical records and discharge summary.

       Appellant testified he had been diagnosed with “Bipolar I with rapid cycling” and saw a

psychiatrist and counselor every month. Appellant explained that he went to the doctor for severe

back pain at around 5:00 p.m. the day before he was stopped. Just after 8:00 p.m., he received

intravenous morphine. He was discharged approximately two hours and twenty minutes later.

The hospital records indicated appellant was discharged with a family member, but appellant

claimed he drove himself. He remembered driving away, having a horrible headache, opening his

door to vomit, and an officer pounding on his window with a flashlight. He was so disoriented,

scared, and confused that he did not understand what the officers were asking him. He told

Officer Larue that he had taken Depakote, a mood stabilizer, early the day before, that he had leg

problems, and that the tumor surgery on his back had a significant effect on his ability to stand

and walk due to chronic numbness and weakness from his mid thigh down. According to

appellant, there was no way he could perform the tests correctly, but he tried the tests to be

cooperative. He also claimed he had taken his bipolar medications regularly for years and had

never been told not to drive or had his ability to drive affected. However, he missed his evening

doses of Depakote and Remeron (sleep aid/antidepressant) the day he was stopped and believed

                                                 –4–
it was possible for his ability to drive to be affected by the missed doses. Appellant further

testified that he was currently taking medication for a seizure disorder. Appellant admitted he

had never experienced such an event before and claimed his current condition must have been

caused by his first seizure, which he believed occurred when he was stopped by the officers.

Appellant had no memory of events between the time he claimed he left the hospital and the time

he was stopped by police at around 1:00 a.m. Appellant admitted his bipolar condition did not

cause intoxication and thus played no part in this case.

        During his testimony, appellant referred to Defendant’s Exhibit 2, which was an email

from Collin County Medical Examiner Dr. William Rohr. In the email, Rohr stated that he could

not give a medical opinion that the combination of Lorazepam and Alprazolam in appellant’s

blood would cause a “loss” of the normal use of mental and physical faculties when the level of

Lorazepam in appellant’s blood was at a therapeutic level and the level of Alprazolam was

subtherapeutic.

       A defense expert witness, Dr. Virginia Neal, testified she was a psychologist and

registered nurse. She reviewed the State’s information, police records, the DPS toxicology

report, appellant’s counseling records, and the email from Rohr. She did not interview appellant

or his family, did not make the bipolar disorder diagnosis, and did not view the video. According

to Neal, the combination, timing, and level of medications appellant had taken the day of the stop

would not cause appellant to not have the normal use of his mental or physical faculties. She

opined appellant was not intoxicated. She acknowledged several of the drugs were not

quantified, that is, measured in the lab report. There were no opiates in appellant’s toxicology

screen, and probably only traces of morphine would have remained in his system by the time his

blood was drawn. She acknowledged the warnings associated with the use of morphine—not to

operate machinery or drive a car when taking the medication. She agreed that the morphine drip

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(approximately four milligrams) was strong because on a scale of 0 to 10, it reduced his pain

from 9 out of 10 at admission to 0 out of 10 when discharged. She also testified the morphine

could have affected appellant, but she did not know whether the prescription medications also

affected him.

       Neal further testified the Depakote and Neurontin that appellant took the morning before

the test could have caused nystagmus and negatively affected his performance on the HGN

portion of the field sobriety test. His inability to keep his balance and walk a straight line for the

heel-to-toe and walk-and-turn tests could have been caused by numbness and weakness in his leg

from his spinal tumor surgery. Appellant might have had a seizure the day he was stopped

because his doctor was transitioning him from Xanax, which is a fast-acting benzodiazepine, to

Alprazolam, a slower one, or because he missed doses of his medications. A person waking up

from a seizure might experience fatigue, confusion, difficulty with gross motor skills such as

walking, dilated pupils, flushing, retrograde amnesia, and thick-tongued speech. The symptoms

observed by the officers could have been caused by appellant coming out of a seizure, which can

mimic intoxication. And bipolar patients are susceptible to seizures.

       When reviewing the sufficiency of the evidence, we view the evidence in the light most

favorable to the verdict to determine whether any rational fact finder could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307

(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).

       A person commits the offense of driving while intoxicated if the person is intoxicated

while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West

2012). The term “intoxicated” means (1) not having the normal use of mental and physical

faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous

drug, a combination of those substances, or any substance into the body, or (2) having an alcohol

                                                 –6–
concentration of 0.08 or more. Id. § 49.01(2)(A)–(B) (West 2011). Thus, section 49.01(2)

provides two alternative methods for the state to prove intoxication. These are referred to as the

impairment theory (loss of normal use of physical or mental faculties) or the per se theory

(alcohol concentration of .08 or more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim.

App. 2010). The impairment theory of intoxication is at issue here.

           Intoxication is statutorily defined. Ouellette v. State, 353 S.W.3d 868, 869 (Tex. Crim.

App. 2011). There are six possible definitions of intoxication. They are not mutually exclusive

but rather overlap. They include alcohol, a controlled substance, a drug, a dangerous drug, a

combination of those substances, or any substance. TEX. PENAL CODE ANN. § 49.01(2)(A).

            While the specific substance is not an element of the offense, it is an evidentiary matter

which may be proved by circumstantial evidence. Gray v. State, 152 S.W.3d 125, 132 (Tex.

Crim. App. 2004). The State is required to prove appellant did not have the normal use of his

mental or physical faculties “by reason of the introduction” of alcohol, a controlled substance, a

drug, a dangerous drug, a combination of those substances, or any substance. See TEX. PENAL

CODE ANN. § 49.01(2)(A); Kuciemba v. State, 301 S.W.3d 460, 462 (Tex. Crim. App. 2010).

           Most of the reported DWI decisions involve evidence of alcohol with and without

“drugs.”1 Some cases involve only “drugs.” Delane is one such case and is instructive. See

Delane v. State, 369 S.W.3d 412, 418 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). In

Delane, the defendant was observed driving dangerously (running a stop sign, almost striking

another car, and hitting a curb). The defendant had no odor of alcohol on his person so the officer

concluded intoxication was due to ingestion of some type of drug. Id. The defendant’s pupils

showed signs consistent with intoxication by a drug. He had trouble standing and following


     1
       We use the term “drugs” in the generic sense to include controlled substances, a drug, a dangerous drug, a combination of these drugs, or
any substance.



                                                                     –7–
directions. Two prescription medications were in the defendant’s car and he had taken them

before driving. The defendant told an officer he was not supposed to drive while on medication.

Id. He testified that after taking his medications he noticed that he was lightheaded and dizzy as

he began driving from his house and the dizziness came out of nowhere. On videotape he said

that he was under the influence of his medication and that it was making him drowsy. Id. One of

his prescription bottles contained a warning label cautioning against driving. The court

concluded the driving facts, the sobriety tests, the defendant’s admissions, and the evidence

about drug usage proved “intoxication.” Id.

           In the case at bar, the evidence shows appellant did not have the normal use of his mental

or physical faculties. Appellant was observed driving in a circle in a field late at night. His turn

signal and windshield wipers were on, and it was not raining. When the officers first made

contact with appellant, he appeared disoriented and confused. Both officers testified that

appellant did not have normal use of his physical and mental faculties. Officer Larue testified

that appellant performed poorly on the field sobriety tests. She observed six clues of intoxication

on both the HGN test and the walk and turn test, and three clues of intoxication on the one-leg

stand test. Appellant told the officers “a guy” had instructed him to go into the field, but there

was no one else present. Appellant was unable to follow instructions, as evidenced by the field

sobriety tests, and his failure to turn off his windshield wipers when told to do so. When asked

the date, appellant provided a date twelve days in the future from the actual date. Appellant

appeared to be unaware of where he was, and the officers became concerned that he had mental

health issues. The officer also observed that appellant’s balance and speech were impaired, and

formed the opinion that appellant was “on something.”2 Notwithstanding medical records stating


     2
        The videotape of the officers’ roadside encounter with appellant, which includes his performance on the field sobriety tests, was admitted
into evidence for the court to view.



                                                                      –8–
a family member picked appellant up at the hospital, appellant claimed he drove himself to and

from the hospital. He was unable to explain what happened from the time he left the hospital

until the officers stopped him in a field early the next morning. Thus, appellant was unable to

account for over five hours.

        Further, the evidence shows “a controlled substance, a drug, a dangerous drug, a

combination of those substances, or any substance” caused appellant to not have the normal use

of his mental or physical faculties. Appellant had taken a drug or combination of drugs.

Appellant admitted to taking numerous prescription drugs. These drugs had potential side effects

of dizziness and inability to operate vehicles. Appellant’s expert, a psychologist and R.N.,

admitted the drugs could have an effect on some people, and she had no personal knowledge of

whether any of appellant’s prescription medications affected him in this manner.

       Appellant was in the hospital the night before he was stopped and was given morphine

and a muscle relaxant in addition to the prescription medication appellant was taking. Appellant

was wearing his hospital bracelet when he was stopped and did not know where he had been

since his discharge from the hospital hours before. The hospital discharge papers listed the

medications that had been prescribed. The medications included a pain medicine and a muscle

relaxant, and both carried warnings about driving a vehicle or operating heavy machinery. The

warnings also indicated that the medications could cause drowsiness when taken in combination

with each other and other medications. Finally, when describing the field sobriety tests, the

officer stated HGN is generally caused by alcohol or narcotics.

       We conclude that, based on the driving facts, the sobriety tests, the officers’ evaluation

and opinion of appellant’s performance and condition, appellant’s admissions, the substantial

period of time preceding appellant’s arrest for which appellant had no apparent memory,

appellant’s use of prescription medication, and the morphine dosage recently administered at the

                                              –9–
Rockwall hospital, the trial court could reasonably find that appellant did not have normal use of

his mental or physical faculties resulting from the introduction of a drug or combination of

drugs. See Landers v. State, 110 S.W.3d 617, 620‒21 (Tex. App.—Houston [14th Dist.] 2003,

pet. ref’d) (finding evidence sufficient to support DWI when appellant admitted ingesting

medication and appeared sluggish, stumbled, had poor coordination, and slurred words); Harkins

v. State, 268 S.W.3d 740, 748 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding evidence of

intoxication sufficient based on officer testimony that appellant’s eyes were heavy, her pupils

constricted, and she was disoriented and slurred her speech); Kiffe v. State, 361 S.W.3d 104, 108

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (concluding evidence supported intoxication

where defendant admitted taking Xanax the night before and Vicodin intermittently, trooper

observed erratic driving, slurred speech, unstable gait and dilated pupils, trooper believed

defendant was under influence of narcotic, hospital recorded that defendant appeared to be

intoxicated by opiates, and expert testified that defendant’s prescription drugs could impair

cognitive ability and central nervous system); Paschall v. State, 285 S.W.3d 166, 177‒78 (Tex.

App.—Fort Worth 2009, pet. ref’d) (holding evidence sufficient to find intoxication based on

video of field sobriety tests admitted into evidence, witnesses’ observations of erratic driving,

defendant’s poor performance on field sobriety tests, officer testimony that HGN is accurate

measure of intoxication, pharmacist testimony that drugs taken by defendant could cause slurred

speech, affected balance, abnormal gait, and constricted pupils and officer’s observation of these

symptoms in defendant).

   Although appellant presented an alternative explanation for his condition, it was the trial

court’s function in its role as fact finder to resolve any conflicts in the evidence, and the judge

was free to accept or reject any and all of the evidence presented by either side. See TEX. CODE

CRIM. PROC. ANN. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim.

                                              –10–
App. 2000). Therefore, we conclude the evidence was sufficient to establish the element of

intoxication.

       Appellant also argues the evidence is insufficient to establish that he was in a “public

place.” A “public place” is defined as “any place to which the public or a substantial group of the

public has access and includes, but is not limited to, streets, highways, and the common areas of

schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” TEX.

PENAL CODE ANN. § 1.07(40) (West Supp. 2013); Loera v. State, 14 S.W.3d 464, 467 (Tex.

App.—Dallas 2000, no pet.) (stating that pertinent question is “whether the place is one to which

the public has access”); see also Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App.—Austin

1995, pet. ref’d). The penal code does not define access, but appellate courts have defined it as:

“freedom of approach or communication; or the means, power, or opportunity of approaching,

communicating, passing to and from.” Loera, 14 S.W.3d at 467.

       Courts have concluded that a parking lot is a public place for purposes of section 49.04(a)

when the evidence shows that the public had access to it. For example, the San Antonio Court of

Appeals has held that a parking lot that was meant for patrons of a nightclub was a public place

because the public had clear access to it. Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex.

App.—San Antonio 1994, pet. ref’d); see also State v. Nailor, 949 S.W.2d 357 (Tex. App.—San

Antonio 1997, no pet.) (hotel parking lot a public place). Likewise, a parking and sidewalk area

outside a gas station is considered a public place. See York v. State, 342 S.W.3d 528, 537 (Tex.

Crim. App. 2011).

       Appellant complains that there were no markings in the parking lot to indicate that it was

public, and the officer admitted that she did not know if the gravel road was public or private.

Appellant also points out that neither officer saw appellant on Highway 205; they saw him only

on the gravel road leading to the highway. (We observe appellant has not explained how he

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could possibly have driven from a hospital in Rockwall to the field where he was arrested in

Collin County without traveling on a public road.)

       Both officers testified that appellant was operating a vehicle in a public place and that the

public had access to both the parking lot and the gravel road. There is nothing in the record to

suggest that either location was private or not otherwise open to the public. There were

commercial vehicles parked in the parking lot. The gravel road leads to a highway. From this

evidence, the court could reasonably conclude that the public had access to both areas. See

Loera, 14 S.W.3d at 467. Accordingly, the evidence is sufficient to support the “public place”

element of driving while intoxicated. Appellant’s fourth and fifth issues are overruled.

Illegal Search and Seizure

        In his first and third issues, appellant asserts the trial court erred in admitting State’s

Exhibits 3 and 4 because they were obtained through a warrantless search and seizure in

violation of the Fourth Amendment.

       To preserve error for appellate review, the rules of appellate procedure require that the

record show that the objection “stated the grounds for the ruling that the complaining party

sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P.

33.1(a)(1)(A). The objection must be specific so that the trial court is aware of the complaint and

has the opportunity to correct the error, or the opposing party has an opportunity to remove the

basis for objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Further, the

trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or

the complaining party must have objected to the trial court’s refusal to rule. Mendez v. State, 138

S.W.3d 334, 341 (Tex. Crim. App. 2004). Even a constitutional error can be forfeited if an

objection is not made at trial. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);

                                               –12–
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). The point of error on appeal must

also comport with the objection made at trial; otherwise, the issue has not been preserved for our

review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Thomas v. State, 723

S.W.2d 696, 700 (Tex. Crim. App. 1986)

           State’s Exhibit 3 consists of three pages of discharge instructions appellant received upon

discharge from the hospital the day before his arrest. Exhibit 4 is a copy of appellant’s hospital

records with an affidavit from the custodian of records. When the State offered Exhibit 3,

appellant’s counsel lodged a hearsay objection which the trial court overruled. When the State

offered Exhibit 4, appellant’s counsel objected that he did not have two weeks to review the

documents as required by TEX. R. EVID. 902(10). The court noted the affidavit from the custodian

of records had been on file for the appropriate amount of time and overruled the objection.

           Appellant’s counsel did not object to Exhibit 3 or 4 on Fourth Amendment grounds at

any time during trial, and there are no pre- or post-trial motions asserting the documents were

obtained through an illegal search and seizure or that one or more of the documents are fruit of

the poisonous tree.3 Because appellant’s appellate points do not comport with his trial objections,

the issues have not been preserved for our review. Appellant’s first and third issues are

overruled.

Authentication of Evidence

           In his second issue, appellant complains that the trial court erred in admitting Exhibit 3,

the discharge summary, “without authentication or sponsor.” Appellant claims the State

improperly used the Exhibit to show he had just been released from the hospital and had been


     3
        Appellant’s fruit of the poisonous tree argument is less than clear. Appellant argues that “Exhibit 3 . . . was secured by legal means, but
discovered as a result of the improper search securing State’s Exhibit 2. Therefore, State’s Exhibit 3 is fruit of the poisonous tree.” (Emphasis
added). Because there was no trial objection concerning any constitutionally illicit conduct, we need not address whether any exhibit was fruit of
the poisonous tree.




                                                                     –13–
prescribed a number of medications. Although appellant objected to the exhibit when it was first

offered into evidence, he did not ask for a running objection. Thereafter, when witnesses testified

about the exhibit and its contents, appellant did not object. For example, Officer White testified

without objection that appellant identified Exhibit 3 as his discharge papers. Officer Larue

testified without objection that appellant identified Exhibit 3, and the document reflected that

appellant had been prescribed medications that carried a warning about driving or operating

heavy machinery. Moreover, appellant’s expert witness presented the same evidence—details of

his treatment at the hospital and prescription medication. Because the same evidence was

admitted without objection, any error concerning the admission of Exhibit 3 was waived. See

Jefferson v. State, 909 S.W.2d 247, 250 (Tex. App.—Texarkana 1995, pet. ref’d). Appellant’s

second issue is overruled.

       Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




Publish
TEX. R. APP. P. 47
120863F.P05




                                              –14–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

LAWRENCE FRANK CROUSE, Appellant                  On Appeal from the County Court at Law
                                                  No. 2, Collin County, Texas
No. 05-12-00863-CR       V.                       Trial Court Cause No. 002-87861-2011.
                                                  Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                      Justices Francis and Myers participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 27, 2014




                                                /Kerry P. FitzGerald/
                                                KERRY P. FITZGERALD
                                                JUSTICE




                                           –15–
