Opinion filed December 29, 2017




                                      In The


        Eleventh Court of Appeals
                                   __________

                 Nos. 11-16-00009-CR & 11-16-00011-CR
                               __________

                        IRMA MUNGUIA, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 2
                            Taylor County, Texas
                 Trial Court Cause Nos. 2-589-15 & 2-470-14


                     MEMORANDUM OPINION
      The jury convicted Irma Munguia of the misdemeanor offenses of resisting
arrest, search, or transportation and interference with public duties in Cause Nos. 2-
470-14 and 2-589-15, respectively, and the trial court assessed her punishment at
confinement for a term of thirty days in jail for each conviction and a fine of $100
for resisting arrest. See TEX. PENAL CODE ANN. §§ 38.03, 38.15 (West 2016). The
trial court ordered that the two sentences run concurrently. The trial court suspended
the confinement portion of Appellant’s sentences and placed her on community
supervision for a period of nine months. Appellant presents four issues on appeal.
We affirm.
      In Appellant’s first issue, she asserts that the trial court erred when it admitted
a recording of a 9-1-1 call into evidence in violation of her right to confront witnesses
against her. In her second issue, Appellant argues that the evidence is insufficient
to sustain her convictions because the officer did not tell Appellant that she was
under arrest and because any force she used occurred before her arrest. In her third
issue, Appellant argues that her convictions violate double jeopardy. In Appellant’s
fourth issue, she asserts that her trial counsel provided ineffective assistance because
he failed to object to the admission of the recording of the 9-1-1 call, failed to call
the witness who called 9-1-1 to testify, and failed to raise a double jeopardy claim.
       On June 10, 2013, Officer James Cummings, a game warden with Texas
Parks and Wildlife, heard yelling while he pumped gas at a gas station.
Officer Cummings used his binoculars to look toward the place from which the
yelling was coming. Officer Cummings testified that he could see “[s]ome shoving
and . . . somebody hitting somebody with a cane” in a parking lot. Officer Cummings
finished pumping gas and drove to the parking lot, where he saw Appellant and her
adult son.
      Officer Cummings arrived at the parking lot in his patrol vehicle—a Ford
F-150 that had lights on it and the words “State Game Warden” on the side. He was
wearing his badge and his uniform, which bore patches that read “Law
Enforcement.” He got out of his vehicle and identified himself as a police officer to
Appellant and her son. He testified that he put Appellant’s son in handcuffs, to
“safely control the situation,” and that Appellant had started to walk away.




                                           2
Officer Cummings then placed Appellant’s son in his patrol vehicle and drove
toward Appellant.
      When Officer Cummings pulled up next to Appellant, she stopped and
Officer Cummings got out of his vehicle. Appellant told Officer Cummings that she
and her son had gotten into an argument about finances. Officer Cummings
explained to Appellant that what he had seen could be domestic violence and
instructed her to return to her nearby vehicle so that he could investigate the
situation. Officer Cummings testified that Appellant began to walk toward her
vehicle.
      As Officer Cummings approached his patrol vehicle to speak with Appellant’s
son, he saw Appellant turn around and begin to walk back toward his patrol vehicle.
Officer Cummings testified that he walked up to Appellant and that she “start[ed]
trying to step around” him and said, “I need to talk to my son.” Officer Cummings
stepped in front of Appellant to prevent her from walking around him.
Officer Cummings further testified that Appellant then “shouldered” him in a way
that resembled “a hockey check” and hit him in the leg with her cane.
Officer Cummings grabbed Appellant, placed her on the ground, and attempted to
place her under arrest because he believed that she had committed the offense of
assault of a public servant.
      Officer Cummings realized that he did not have another pair of handcuffs on
his belt and that he needed to obtain more handcuffs from his patrol vehicle.
Officer Cummings told Appellant to “[s]tay on the ground” while he retrieved
handcuffs. After Officer Cummings obtained more handcuffs and walked around
his patrol vehicle, he saw that Appellant had stood up and had grabbed a railing on
his vehicle. Officer Cummings testified that Appellant then “lunged at [him]” and
“grabbed” him in a way that resembled “a bear hug.” As Officer Cummings


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attempted to place Appellant in handcuffs, Appellant reached up with her hand and
placed it on Officer Cummings’s service weapon and began to pull on it.
Officer Cummings testified that Appellant pulled on his weapon three separate
times. He also testified that, as he attempted to place Appellant in handcuffs, she
“grabbed that railing again and she wouldn’t let go.” Officer Cummings eventually
placed Appellant in handcuffs.
      At trial, Appellant testified that she did not know that Officer Cummings was
a member of law enforcement. She said that she thought of a game warden as “a
meter maid, somebody who wrote tickets out” and dealt with animals. Appellant
also testified that she did not know that she was under arrest.
      In her first issue, Appellant argues that the trial court erred when it admitted
a recording of a 9-1-1 call made by a witness who did not testify at trial—in violation
of her constitutional rights to confront witnesses against her under the United States
Constitution and the Texas constitution. See U.S. CONST. amends. VI, XIV; see also
TEX. CONST. art. I, § 10. “To preserve error on Confrontation Clause grounds, a
defendant must object at trial as soon as the basis for that objection becomes
apparent.” Tran v. State, No. 14-15-000938-CR, 2017 WL 3158948, at *3 (Tex.
App.—Houston [14th Dist.] July 25, 2017, no pet.) (mem. op., not designated for
publication); see TEX. R. APP. P. 33.1.       A defendant’s failure to object to a
Confrontation Clause error at trial waives the complaint on appeal. See Wright v.
State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (objection on grounds other than
Confrontation Clause did not preserve Confrontation Clause complaint); see also
Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding that failure to
articulate “that the Confrontation Clause demanded admission of the evidence”
foreclosed trial court’s opportunity to rule on that issue and resulted in waiver of
issue on appeal).


                                          4
      Because Appellant did not object to the admission into evidence of the
recording of the 9-1-1 call on Confrontation Clause or other grounds, the trial court
did not have an opportunity to rule upon Appellant’s Confrontation Clause
complaint.    Therefore, Appellant has not preserved her Confrontation Clause
complaint for our review. See TEX. R. APP. P. 33.1. Appellant’s first issue is
overruled.
      In Appellant’s second issue, she argues that the evidence was insufficient to
sustain her conviction for the offense of resisting arrest, search, or transportation.
To prove the misdemeanor offense of resisting arrest under Section 38.03, the State
must show that the defendant intentionally prevented or obstructed a person whom
he knows is a peace officer from effecting an arrest, search, or transportation of the
actor or another by the use of force against the peace officer. PENAL § 38.03(a).
      Appellant argues on appeal that, because “there was no evidence submitted
that Appellant was ever actually told she was either under arrest or being detained,”
she could not have known that she was under arrest and, thus, could not have
intentionally resisted arrest. Appellant also argues that any force that she used
against Officer Cummings occurred before he attempted to arrest her. Therefore,
Appellant argues, the jury could not have found her guilty.
      We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;


                                           5
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).              Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute
the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—
Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
      Appellant argues on appeal that the evidence presented was insufficient to
show that Appellant intentionally prevented Officer Cummings from arresting her
because she did not know that she was being arrested. Appellant maintains that she
was unaware that she was under arrest and, therefore, could not have resisted arrest
under the statute. Additionally, she argues that, because Officer Cummings “only
formed the intent to arrest her after her alleged use of force against him, it would be
factually impossible under the evidence as presented for her to have committed the
offense of Resisting Arrest as defined by the statute.”
      “To establish that an officer was in the process of effecting an arrest, the State
must prove that the officer had a preexisting intent to arrest the defendant and took
some action pursuant to that intent.” Menjivar v. State, No. 11-13-00378-CR, 2015
WL 7185532, at *2 (Tex. App.—Eastland Nov. 12, 2015, no pet.) (mem. op., not
designated for publication).    Based on his own testimony, Officer Cummings
decided to arrest Appellant only after she “shouldered” him and struck him on the
leg. Thus, Officer Cummings did not intend to arrest Appellant when he initially
arrived at the scene; he intended to arrest her only after she assaulted him.
      The jury, as the trier of fact, was the sole judge of the credibility of the
witnesses and of the weight to be given their testimony. TEX. CODE CRIM. PROC.
ANN. art. 36.13 (West 2007). As such, the jury was entitled to accept or reject any


                                           6
or all of the testimony of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex.
Crim. App. 1992). Furthermore, the jury was entitled to draw reasonable inferences
from the evidence. Jackson, 443 U.S. at 319. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and, therefore, defer to that determination. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
      Officer Cummings testified that he arrived at the scene in his patrol vehicle,
that he was wearing his uniform and badge, and that he identified himself as a police
officer to Appellant and her son. Officer Cummings also testified that he attempted
to arrest Appellant after she struck him because he believed that she had committed
the offense of assault of a public servant and that he did so by “grabb[ing] her and
. . . plac[ing] her on the ground.” Officer Cummings further testified that, after he
went to his vehicle to obtain more handcuffs and told Appellant to stay on the
ground, Appellant stood up, “lunged” at Officer Cummings, “grabbed him,” and put
her hand on his service weapon and repeatedly pulled on it. He also testified that
Appellant grabbed the railing on his patrol vehicle as he attempted to place her in
handcuffs. We note that evidence that a person pulls against an officer, twists or
squirms to thwart the officer’s movements, or struggles against an officer is
sufficient to show that the person used force against the officer. Menjivar, 2015 WL
7185532, at *3; see Pumphrey v. State, 245 S.W.3d 85, 89–92 (Tex. App.—
Texarkana 2008, pet. ref’d).
      Here, the jury could have inferred that Officer Cummings was effecting an
arrest when he placed Appellant on the ground after she struck him. Further, the
jury could have rejected Appellant’s testimony and reasonably inferred that
Appellant knew that Officer Cummings was a police officer. Finally, the jury could
have reasonably inferred that Appellant used force against Officer Cummings after


                                          7
he attempted to arrest her. We have reviewed the evidence in the light most
favorable to the verdict, and we hold that a rational trier of fact could
have found beyond a reasonable doubt that Appellant intentionally prevented
Officer Cummings, a person she knew to be a peace officer, from effecting an arrest
of Appellant by using force against Officer Cummings. Appellant’s second issue is
overruled.
      In her third issue, Appellant argues that her convictions for resisting arrest,
search, or transportation and interference with public duties constitute a double
jeopardy violation. Under the U.S. Constitution, the Double Jeopardy Clause
provides, in part, that no person shall be “subject for the same offence to be twice
put in jeopardy of life or limb.” U.S. CONST. amend. V. “The Double Jeopardy
Clause protects criminal defendants from three things: 1) a second prosecution for
the same offense after acquittal; 2) a second prosecution for the same offense after
conviction; and 3) multiple punishments for the same offense.” Ex parte Milner,
394 S.W.3d 502, 506 (Tex. Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161,
164–65 (1977)).
       We note at the outset that Appellant did not raise her double jeopardy claim
in the trial court. Because of the fundamental nature of the double jeopardy
protections, however, a double jeopardy claim may be raised for the first time on
appeal or on collateral attack if two conditions are met: (1) the undisputed facts show
that the double jeopardy violation is clearly apparent on the face of the record and
(2) enforcement of the usual rules of procedural default serves no legitimate state
interest. See Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000). In
this case, the record is fully developed in order to determine whether Appellant’s
double jeopardy protections were violated, and no legitimate state interests would
be served if we did not address Appellant’s claim. See Ex parte Denton, 399 S.W.3d


                                          8
540, 544–45 (Tex. Crim. App. 2013). Therefore, we will review the merits of the
double jeopardy issue. See Gonzalez, 8 S.W.3d at 643.
        The first step in a double jeopardy challenge is to determine whether resisting
arrest, search, or transportation and interference with public duties are the “same
offense.” See Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). When
multiple punishments arise out of one trial, we begin our analysis with the
Blockburger test. Id.; see Blockburger v. United States, 284 U.S. 299 (1932).
“Under the Blockburger test, two offenses are not the same if one requires proof of
an element that the other does not.” Bigon, 252 S.W.3d at 370. To resolve a double
jeopardy issue, we look at the elements in the charging instruments. Id.
      Appellant was charged under two informations, and each alleged a separate
and distinct offense that took place on or about June 10, 2013. The information in
Cause No. 2-470-14 that charged Appellant with resisting arrest, search, or
transportation alleged that Appellant “did then and there intentionally prevent or
obstruct JAMES G. CUMMINGS, a person the said [Appellant] knew to be a peace
officer, from effecting an arrest of the said [Appellant], by using force against said
peace officer.” The information in Cause No. 2-589-15 that charged Appellant with
interference with public duties alleged that Appellant:
      [D]id then and there, while JAMES CUMMINGS, a peace officer, was
      performing a duty or exercising authority imposed or granted by law,
      to-wit: detaining [Appellant] and [Appellant’s son] to investigate an
      altercation he witnessed, with criminal negligence, interrupt, disrupt,
      impede, or interfere with the said JAMES CUMMINGS by hitting
      JAMES CUMMINGS with her cane, pushing JAMES CUMMINGS
      with her shoulder, and trying to tackle JAMES CUMMINGS and by
      grabbing JAMES CUMMINGS holstered weapon.

      In comparison, the two charges are similar, but not the same. In order to
obtain a conviction for resisting arrest, search, or transportation, the State must prove


                                            9
that Appellant did intentionally, with force, “prevent or obstruct” Officer Cummings
from arresting her and that Appellant knew Officer Cummings was a peace officer.
On the other hand, in order to obtain a conviction for interference with public duties,
the State must prove that Appellant did, with criminal negligence, “interrupt, disrupt,
impede, or interfere with” Officer Cummings while he attempted to detain Appellant
and her son in order to investigate an altercation that he witnessed. Under a strict
application of the Blockburger test, the two offenses have differing elements and,
therefore, would not be the same offense. However, the Blockburger test is a rule
of statutory construction and is not the exclusive test to determine whether the two
offenses are the same. Bigon, 252 S.W.3d at 370.
      In Ervin v. State, the Court of Criminal Appeals provided a nonexclusive list
of factors to consider when analyzing a multiple-punishment claim. 991 S.W.2d
804, 814 (Tex. Crim. App. 1999). Those factors include whether the offenses are
contained within the same statutory section, whether the offenses are phrased in the
alternative, whether the offenses are similarly named, whether the offenses have
common punishment ranges, whether the offenses have a common focus or
“gravamen,” whether that common focus tends to indicate a single instance of
conduct, whether the elements that differ between the offenses can be considered the
same under Blockburger, and whether there is legislative history that contains an
articulation of an intent to treat the offenses as the same or different for double
jeopardy purposes. Ervin, 991 S.W.2d at 814. However, the ultimate question is
whether the legislature intended to allow the same conduct to be punished under both
of the offenses. Bigon, 252 S.W.3d at 371.
      Resisting arrest, search, or transportation and interference with public duties
are both in the “obstructing governmental operation” chapter under the “Offenses
Against Public Administration” title of the Texas Penal Code. See PENAL ch. 38


                                          10
(West 2016 & Supp. 2017). However, they are not phrased in the alternative, and
there is no language in either statute that suggests that the legislature intended the
two offenses to be phrased in the alternative. See Ex parte Benson, 459 S.W.3d 67,
78–79 (Tex. Crim. App. 2015). Because resisting arrest, search, or transportation
and interference with public duties are not phrased in the alternative, this factor is
not dispositive in this case. Bigon, 252 S.W.3d at 371.
      Additionally, the offenses are not similarly named. See Ex parte Benson, 459
S.W.3d at 79 (offenses are similarly named if they share a common word in the title);
see also Garfias v. State, 424 S.W.3d 54, 60–61 (Tex. Crim. App. 2014) (holding
that aggravated robbery by threat and aggravated assault causing bodily injury were
not named similarly). Furthermore, the two offenses have different punishment
ranges. Resisting arrest, search, or transportation is a Class A misdemeanor and
carries a punishment range of up to one year in prison, with a possibility of a fine up
to $4,000. PENAL §§ 12.21, 38.03(c). On the other hand, interference with public
duties is a Class B misdemeanor and carries a punishment range of up to 180 days
in prison, with a possibility of a fine up to $2,000. Id. §§ 12.22, 38.15(b).
      The focus, or “gravamen” of the two offenses is a key factor in the Ervin
analysis. Garfias, 424 S.W.3d at 59. Here, each offense has a different gravamen.
The gravamen of the offense of resisting arrest is the use of force to prevent an arrest
of oneself. To the contrary, the gravamen of the offense of interference with public
duties is the interference with any duty a peace officer has under law. The elements
of resisting arrest, search, or transportation and interference with public duties are
not the same under Blockburger, and we find no legislative history that indicates an
intent to treat resisting arrest, search, or transportation and interference with public
duties as the same offense. Although the allowable units of prosecution could be the




                                          11
same, in this case there were two separate units of prosecution: Appellant’s
resistance to her own arrest and Appellant’s interference with Officer Cummings’s
detainment of her and her son—including before Officer Cummings decided to
arrest Appellant—in order to investigate a possible crime that he witnessed. Because
Appellant was not punished twice for the same offense, her conviction of and
punishment for both resisting arrest, search, or transportation and interference with
public duties do not violate the Double Jeopardy Clause. Appellant’s third issue is
overruled.
      In Appellant’s fourth issue, she argues that her trial counsel rendered
ineffective assistance of counsel when he failed to object to the introduction of a
recording of a witness’s 9-1-1 call into evidence, when he failed to call that witness
to testify, and when he failed to raise a double jeopardy claim. To determine whether
Appellant’s trial counsel rendered ineffective assistance at trial, we must first
determine whether Appellant has shown that counsel’s representation fell below an
objective standard of reasonableness and, if so, then determine whether there is a
reasonable probability that the result would have been different but for counsel’s
errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S.
668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v.
State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
      We must indulge a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690.


                                         12
      An allegation of ineffective assistance must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking as to overcome the presumption that counsel’s conduct was
reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). Rarely will the record on direct appeal contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
Id.
      At trial, the State introduced a recording of a witness’s 9-1-1 call, in which
the witness described a “fight” in the parking lot and stated that a “park ranger”
might need help. Appellant argues on appeal that, because the witness who called
9-1-1 was unavailable for Appellant to cross-examine, her trial counsel was
ineffective because he did not object to the introduction of the 9-1-1 recording into
evidence on the basis that it violated Appellant’s right to confront witnesses against
her. Appellant also argues on appeal that her trial counsel was ineffective “in the
absence of cross-examination of the caller . . . because the identity of the caller was
known to trial counsel and he could have been subpoenaed and examined.”
Additionally, Appellant argues that her trial counsel was ineffective because he
failed to raise a double jeopardy claim.
      When an appellant alleges ineffective assistance of counsel for failure to
object, the appellant must demonstrate that, if trial counsel had objected, the trial
court would have erred in overruling the objection. See Ex parte Martinez, 330
S.W.3d 891, 901 (Tex. Crim. App. 2011). We note that the Confrontation Clause
does not apply to nontestimonial statements. See Sanchez v. State, 354 S.W.3d 476,
485 (Tex. Crim. App. 2011). We also note that “9-1-1 calls initiated to summon


                                           13
police assistance are generally nontestimonial because they are ‘a cry for help’ or
‘the provision of information enabling officers to end a threatening situation.’”
Hunter v. State, No. 06-17-00083-CR, 2017 WL 4799103, at *2 (Tex. App.—
Texarkana Oct. 25, 2017, no pet. h.) (mem. op., not designated for publication)
(quoting Davis v. Washington, 547 U.S. 813, 832 (2006); Cook v. State, 199 S.W.3d
495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). Because the witness
called 9-1-1 “to obtain police assistance in response to a potential crime or situation
still in progress,” the witness’s statements were not testimonial, and the trial court
would not have erred if it overruled an objection to the admission of the 9-1-1
recording on Confrontation Clause grounds. Hunter, 2017 WL 4799103, at *2.
       Generally, a trial counsel’s failure to call a witness does not constitute
ineffective assistance of counsel without a showing that the witness was available to
testify and that his testimony would have benefited the accused. Butler v. State, 716
S.W.2d 48, 55 (Tex. Crim. App. 1986). The record does not reveal that the witness
who called 9-1-1 was available to testify, nor does it reveal trial counsel’s reasoning
for why he did not call the witness to testify. Furthermore, “‘[t]he decision whether
to call a witness is clearly trial strategy and, as such, is a prerogative of trial
counsel.’” Guerra v. State, No. 01-15-00650-CR, 2016 WL 6212999, at *21 (Tex.
App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op., not designated for
publication) (quoting Brown v. State, 866 S.W.2d 675, 678 (Tex. App.—Houston
[1st Dist.] 1993, pet. ref’d)).
       Additionally, we held under Appellant’s third issue that Appellant’s
convictions for both resisting arrest, search, or transportation and interference with
public duties do not violate the Double Jeopardy Clause. Therefore, there was not a
reasonable probability that the result would have been different if Appellant’s trial
counsel had raised a double jeopardy claim in the trial court. We hold that nothing


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in the record demonstrates that Appellant’s trial counsel rendered ineffective
assistance when he failed to object to the admission of the recording of the 9-1-1 call
into evidence on Confrontation Clause grounds, failed to call the witness who called
9-1-1 to testify, or failed to raise a double jeopardy claim. Appellant’s fourth issue
is overruled.
      We affirm the judgments of the trial court.




                                        JIM R. WRIGHT
                                        CHIEF JUSTICE


December 29, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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