                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-17-00188-CR
                               NO. 09-17-00189-CR
                               NO. 09-17-00190-CR
                                ________________

                    ELIAS ARTEAGA-ROMAN, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________________ _

                 On Appeal from the 221st District Court
                        Montgomery County, Texas
    Trial Cause Nos. 16-07-08022-CR, 16-07-08242-CR, 16-05-05329-CR
___________________________________________________________ _______

                          MEMORANDUM OPINION

      A jury convicted appellant Elias Arteaga-Roman of two charges of aggravated

sexual assault of a child and one charge of injury to a child. The jury assessed

punishment at thirty years of confinement for aggravated sexual assault of a child in

trial cause number 16-07-08022-CR, thirty years of confinement for aggravated

assault of a child in trial cause number 16-07-08242-CR, and four and a half years

of confinement for injury to a child in trial cause number 16-05-5329-CR. In five

                                         1
issues, Arteaga-Roman challenges the legal sufficiency of the evidence and the

denial of his motion for mistrial, and he argues that his punishment in the aggravated

sexual assault cases was cruel and unusual. We affirm the trial court’s judgments.

                          PERTINENT BACKGROUND

      The indictments alleged that Arteaga-Roman intentionally or knowingly

caused the sexual organ of K.A., a child younger than fourteen, to “contact and/or

penetrate” his mouth, penetrated K.A.’s sexual organ by inserting his hand and

intentionally or knowingly caused bodily injury to D.B., a child younger than

fourteen, “by applying pressure to D.B.’s nose with a cloth or similar object[.]”

             V.B., Arteaga-Roman’s former wife and the mother of the child

victims, testified that she, Arteaga-Roman, and the children were living together

after the divorce, but she and Arteaga-Roman slept in separate rooms. V.B. testified

that at the time of the offenses, D.B. was eight years old and K.A. was six years old.

V.B. explained that on the date of the offense, she had left to go to her current

partner’s house and then to work. According to V.B., D.B. called her and said she

had been awakened with a rag on her face. V.B. believed D.B. had experienced a

nightmare, and she told D.B. to rest because it was just a nightmare. V.B. testified

that D.B. called her again, and after hearing what D.B. had to say, she immediately

returned home.

                                          2
      Upon arriving at the trailer, V.B. pulled in sideways so Arteaga-Roman would

not see the lights of the truck. V.B. explained that she did not want Arteaga-Roman

to see the lights because D.B. had told her that she was afraid Arteaga-Roman would

awaken, and V.B. testified that she was also afraid. When V.B. entered the trailer,

she took D.B. outside, and she testified that D.B. was scared and crying. After

speaking with D.B., V.B. called the police. V.B. testified that the police and an

ambulance arrived, and the police questioned them before entering the trailer to get

Arteaga-Roman. According to V.B., K.A. was eventually taken from the house by

V.B. and the emergency medical technicians (EMTs), and the EMTs checked both

K.A. and D.B. in the ambulance before taking them to the hospital.

      According to V.B., when they arrived at the hospital, K.A. indicated that she

wanted to tell V.B. something. K.A. asked V.B. why her father had done what he

did, and K.A. told her mother that her father had “tickled her and given her little

kisses in her part.” V.B. testified that she understood K.A. to be referring to her

intimate part, which meant her sexual organ. V.B. explained that K.A. said her father

had tickled her private intimate part with his mustache. The next day, K.A. and D.B.

were interviewed separately at Children’s Safe Harbor. V.B. testified that she then

sought counseling for the girls at Safe Harbor. V.B. testified that after the offenses,

D.B. “had a lot of nightmares[,]” and K.A. wanted her mother to hug her throughout

                                          3
the night. According to V.B., Arteaga-Roman asked her to talk to the victims about

saying that the charges were untrue. V.B. also testified that in a letter to D.B.,

Arteaga-Roman had told D.B. to lie and say that she had made a mistake.

         Deputy Nicholas Cook of the Montgomery County Sheriff’s Office testified

that he was dispatched to a “child abuse call” at V.B.’s home in the early morning

hours of April 28, 2016. Cook explained that V.B. informed him that one of the

children had “called her and told her that some inappropriate things had happened

between the father and the two daughters.” Cook testified that V.B. spoke in broken

English, so he had a Spanish-speaking deputy with him at the scene. After V.B. told

Cook what D.B. had told her, Cook and his supervisor entered the trailer to make

contact with Arteaga-Roman, and they found him asleep in the bedroom. Cook

testified that Arteaga-Roman seemed disoriented and intoxicated, Cook could smell

alcohol, and “[t]here were some alcoholic beverages in the area.” Cook explained

that, because of the severity of the language barrier, he did not ask Arteaga-Roman

specific questions, and he instead called a detective to come to the scene. The

detective advised Cook by telephone to do a DNA swab of Arteaga-Roman, and

Cook did so. Cook testified that D.B. told the police that her father placed a cloth

over her mouth, which caused her “pain and discomfort in her mouth and her nose

area.”

                                         4
      Detective Shannon Acosta of the Montgomery County Sheriff’s Office

testified that she is assigned to the Crimes against Children division, where she

investigates cases of physical and sexual abuse of children who are age thirteen and

under. Acosta explained that she was assigned to the case involving Arteaga-Roman

because she was on call when Deputy Cook called from the scene. Acosta testified

that Cook informed her that Arteaga-Roman had put a rag with a substance on it over

one child’s face, and “there was also an outcry of oral contact to another child’s

genitalia.” Cook informed Acosta that he had been unable to locate the cloth.

      Acosta instructed Cook by phone to swab Arteaga-Roman’s face for any

possible DNA transfer and to obtain consent to search the house, and she authorized

examinations for the children with a sexual assault nurse. Acosta explained that

when she arrived at the scene, she met with Deputy Aguirre, who walked her through

the scene and pointed out some potentially key pieces of evidence, such as a lighter

and a bottle of rubbing alcohol in the master bedroom. Acosta stated that the lighter

was significant because the children mentioned that Arteaga-Roman had displayed

it, and the bottle of rubbing alcohol was significant because “the rag that was over

[D.B.’s] face smelled to her like rubbing alcohol.” Acosta testified that upon lifting

the lid on the trash can next to the porch outside, she saw a pink rag on top of the

trash, and she photographed the rag and collected it as evidence. According to

                                          5
Acosta, when she lifted the rag out of the trash, she noticed that the rag “had an

overwhelming smell of rubbing alcohol.” Acosta also found Acosta-Roman’s police

identification from Mexico. Acosta testified that after securing the evidence at the

crime lab, she went to the hospital where the children were.

      After Arteaga-Roman was arrested, Acosta obtained help from Deputy

Aguirre to interview Arteaga-Roman because Acosta does not speak Spanish

fluently. Acosta and Aguirre interviewed Arteaga-Roman in Spanish, and Acosta

recorded the interview with her digital recorder. According to Acosta, D.B. had told

her that she woke up when it felt like someone was trying to put something over her

mouth. Acosta explained that Arteaga-Roman claimed that he did not do anything

and did not know who covered up D.B.’s face, although no one else was at home.

Acosta testified that Arteaga denied touching the children or walking around naked,

and he told the police that the children must have been dreaming. According to

Acosta, Arteaga-Roman stated that he had consumed eight to ten beers. Arteaga-

Roman consented to a buccal DNA swab, and Acosta took a sample from him.

Acosta asked Arteaga-Roman to provide a written statement, and she explained that

with the exception of Arteaga-Roman saying that he had lain down with the children,

his written statement was “pretty consistent[]” with his oral statement.



                                          6
      Acosta testified that the next day, she watched the forensic interviews of D.B.

and K.A. at Children’s Safe Harbor via a closed circuit television in an adjoining

room. Acosta explained that the children were interviewed separately. As a result of

the interviews with D.B. and K.A., Acosta initiated charges against Arteaga-Roman

for injury to a child as to D.B. and aggravated sexual assault of a child or indecency

with a child as to K.A. Acosta testified that when she attempted to interview Arteaga-

Roman again, he did not want to speak with her. Defense counsel objected that

Acosta’s testimony constituted a comment on Arteaga-Roman’s right to remain

silent, and he requested a jury instruction and moved for a mistrial. The trial judge

denied the motion for mistrial, but did instruct the jury to disregard the last question

and answer.

      Acosta testified that she received a call from D.B.’s therapist, which caused

Acosta to become concerned about D.B. being told to recant. Acosta testified that

she filed the case with the district attorney’s office, and the charges she turned in

included two counts of aggravated sexual assault of a child as to K.A. for making

oral contact with K.A.’s genitalia and for penetrating her genitalia with his hand.

Acosta explained that when the rag was analyzed, it tested “positive for the same

type of alcohol that is in the rubbing alcohol.”



                                           7
       Sexual assault nurse examiner Karin Hoffmann testified that she conducted

sexual assault examinations of K.A. and D.B. According to Hoffmann, when she

took D.B.’s history, V.B. was not in the room. Hoffmann testified that D.B. reported

that Arteaga-Roman entered her room and removed his pants and shirt, so that he

“had nothing on.” Hoffmann explained that D.B. stated her father put a towel that

smelled like medicine into her nose and mouth. According to Hoffmann, D.B. stated

that when she asked her father what he was doing, he told her to go back to sleep

because she was having a nightmare. D.B. told Hoffmann that when she opened her

eyes, her father “was standing there and touching his part, as she pointed to her

genitalia.” According to Hoffmann, D.B. said that Arteaga-Roman got into K.A.’s

bed.

       Hoffmann explained that as D.B. gave her history, D.B. kept eye contact and

spoke fluently and without hesitation. Hoffmann described D.B. as very talkative

and “[v]ery protective of her sister and her mom.” According to Hoffman, because

D.B. reported that Arteaga-Roman tried to give her medicine, she ordered an

evidence collection, which came back negative.

       Hoffmann testified that she examined K.A., who was six years old at the time.

According to Hoffmann, K.A. stated, “I hear[d] my sister yell, get away. My dad

was next to me in my bed. He had nothing on, no clothes.” Hoffmann explained that

                                         8
if an adult male put his lips on a child’s sexual organ or opened the genitalia with

his hand, she would not necessarily expect to find any injury upon examining the

child’s genitalia. Hoffmann testified that she collected evidence from inside K.A.’s

mouth, perianal area, labia majora, and labia minora, and she also collected K.A.’s

underwear. During cross-examination, Hoffmann agreed that nothing in either

child’s account to her described an aggravated sexual assault.

      Stephanie Ventura, a bilingual forensic interviewer at Children’s Safe Harbor,

testified that she interviewed D.B. and K.A. According to Ventura, D.B. is smart and

she “talked a lot.” Ventura explained that D.B. said “her dad had raped her little

sister.” D.B. told Ventura that Arteaga-Roman put an alcohol-soaked rag onto her

nose “and squeezed it hard to where she couldn’t breathe.” D.B. told Ventura that

she pushed Arteaga-Roman off, and he left the room, but returned to the room naked.

According to Ventura, D.B. stated that her father had lifted her sister’s nightgown,

moved her sister’s underwear, and kissed her sister’s sexual organ. Ventura testified

that K.A. said that her father had lifted her nightgown and moved her underwear,

and she could feel his mouth. K.A. told Ventura that her father opened her sexual

organ with his hands. During cross-examination, Ventura testified that at one point,

K.A. testified that her sister told her that their father tried to rape them.



                                            9
      Amanda Balasko, a forensic scientist with the Texas Department of Public

Safety, testified that she examined swabs from a rag, blue lighter, and a bottle of

rubbing alcohol, as well as buccal swabs and swabs of Arteaga-Roman’s face and

mouth area, and sexual assault kits from the victims. Balasko explained that she also

tested perianal swabs, swabs of the outer and inner labia majora, and labia minora,

as well as some panties. Balasko did not detect semen from the panties. Jennifer

Young, a forensic scientist with the Texas Department of Public Safety Crime

Laboratory in Houston, explained that she recovered a DNA profile from outside the

panties that was a mixture of three individuals: K.A., Arteaga-Roman, and an

unknown unrelated third individual. Young testified that with respect to the testing

she performed of the inside of the panties, the contributors were K.A. and Arteaga-

Roman.

      K.A. testified that her father touched her part, and she explained that she

meant the front part of her genitalia. When shown a diagram, she circled the female

sexual organ. K.A. recounted that she could feel Arteaga-Roman tickling her part

that she circled on the diagram with his mouth and mustache. K.A. testified that she

kept her eyes closed and did not see whether Arteaga-Roman was clothed.

According to K.A., on the night of the offense, she was wearing a nightgown and

underwear, and Arteaga-Roman lifted her nightgown to her belly button and pushed

                                         10
her underwear to the right with his hand. K.A. testified that when Arteaga-Roman

was tickling her part, he used a lighter so he could see her. K.A. testified that she did

not see the lighter, but she heard Arteaga-Roman trying to click it on. K.A. agreed

that when Arteaga-Roman was moving her underwear, his hand touched inside the

fatty outer part of her genitalia. According to K.A., when Arteaga-Roman moved

her underwear, he then put his lips on her part and tickled it with his mouth. K.A.

testified that she lowered her nightgown in an attempt to cover herself, “but he

continued doing it.”

      K.A. stated that she heard her sister yelling at Arteaga-Roman and telling him

to go back to his room. K.A. identified Arteaga-Roman in court as the person who

put his hand in her part and his mouth on her part. K.A. testified that she went back

to sleep after Arteaga-Roman left. K.A. explained that she forgot to tell the

interviewer some things.

      D.B. testified that Arteaga-Roman awakened her by tickling her foot and told

her that he was taking care of her younger sister and brother so they would not have

nightmares. D.B. explained that she told him she would take care of them, and she

attempted to put a large, heavy bucket of clothes in front of the bedroom door to

prevent him from reentering the room. According to D.B., Arteaga-Roman put a rag

with alcohol on it on her face, covered her nose with the rag, and applied pressure,

                                           11
causing her to have trouble breathing. D.B. testified that she tried to remove the rag

and hit Arteaga-Roman.

      According to D.B., her father eventually went outside to drink more, and he

later asked D.B. to come to the phone to speak to her mother. D.B. explained that

she was afraid to tell her mother what had happened, so she did not, and she returned

to her room to sleep as her mother had told her to do. D.B. testified that when she

laid down, her father reentered the bedroom without any clothes and laid down

beside K.A. D.B. testified that she told her father to leave, but he did not, and D.B.

saw Arteaga-Roman on top of K.A. kissing her “middle part.” D.B. explained that

by middle part, she meant the area used for peeing, and she circled the female sexual

organ on a diagram. According to D.B., Arteaga-Roman moved her sister’s

underwear with his hand.

      D.B. testified that she did not say anything when her father was doing this

because she was afraid, and when the prosecutor asked her why she was afraid, she

testified “Because when I was 3 years old, I don’t remember what I did, but he hit

me so hard.” Defense counsel objected to the testimony on the grounds that it was

evidence of an extraneous offense and moved for a mistrial, and the trial judge

sustained the objection but denied the motion for mistrial. The judge instructed the

jury to disregard D.B.’s statement. D.B. testified that after her father left the room,

                                          12
she called her mother and told her what happened. Defense counsel again moved for

a mistrial when D.B. responded in Spanish to questions regarding her parents’

divorce, and the trial judge again overruled the motion.

      Arteaga-Roman testified that although he and V.B. were divorced, they agreed

to live together to allow the children to have both parents in their home, and Arteaga-

Roman gave financial assistance to V.B. According to Arteaga-Roman, on the date

in question, V.B. left for work in the early morning hours. Arteaga-Roman explained

that he had consumed eight beers that evening. Arteaga-Roman testified that he

awakened at 2:00 or 3:00 a.m., went to the bathroom, and disinfected himself using

a rag with alcohol. According to Arteaga-Roman, he then went into the children’s

bedroom to check on them. Arteaga-Roman testified that he then fainted and fell on

top of D.B., and the rag fell onto her face. According to Arteaga-Roman, he fell onto

K.A.’s legs and his head ended up on K.A.’s sexual organ. Arteaga-Roman testified

that D.B. woke up and told him to leave her sister alone.

      Arteaga-Roman denied touching any part of K.A.’s body with sexual intent

or having sexual feelings toward K.A. In addition, Arteaga-Roman denied moving

K.A.’s panties with his hand. According to Arteaga-Roman, the “tickling that [K.A.]

felt” occurred because he fell onto her private part and he was “shaking.” Arteaga-

Roman testified that K.A. was lying when she said that he pushed up her gown.

                                          13
Arteaga-Roman explained that although he fainted, he knew everything that

occurred while he was in the children’s bedroom. Arteaga-Roman denied

intentionally putting a rag over D.B.’s nose. Arteaga-Roman admitted that he did not

mention dizziness in his statement to the detective.

                        ISSUES ONE, TWO, AND THREE

      In issue one, Arteaga-Roman asserts that the evidence was legally insufficient

to prove that he committed the offense of aggravated sexual assault against K.A. by

causing her sexual organ to contract or penetrate his mouth. In issue two, Arteaga-

Roman argues that the evidence was legally insufficient to prove that he committed

the offense of aggravated assault of K.A. by causing the penetration of her sexual

organ by inserting his hand. In issue three, Arteaga-Roman contends the evidence

was legally insufficient that he committed the offense of injury to a child against

D.B. We address these issues together.

      When evaluating the legal sufficiency of the evidence, we review all the

evidence in the light most favorable to the verdict to determine whether any rational

factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 n. 19 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the ultimate authority on the

                                         14
credibility of witnesses and the weight to be given to their testimony. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). A reviewing court

must give full deference to the jury’s responsibility to fairly resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting

inferences, we must presume that the jury resolved such facts in favor of the verdict

and defer to that resolution. Brooks, 323 S.W.3d at 889 n. 13; Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we determine whether the

necessary inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict. Clayton,

235 S.W.3d at 778. The testimony of a child victim, standing alone and without

corroboration, is sufficient to support a conviction for aggravated sexual assault of

a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West Supp. 2017)

(providing that a child’s testimony alone is sufficient to support a conviction for

aggravated assault when the child is under the age of seventeen at the time of the

alleged offense); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet.

ref’d).

          Section 22.021 of the Penal Code provides that a person commits aggravated

sexual assault if he intentionally or knowingly causes the penetration of the sexual

                                          15
organ of a child by any means or causes the child’s sexual organ to contact or

penetrate the person’s mouth. Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp.

2017). Section 22.04 of the Penal Code provides that a person commits the offense

of injury to a child if he intentionally or knowingly causes bodily injury to a child.

Id. § 22.04(a)(3) (West Supp. 2017). “Bodily injury” is defined as “physical pain,

illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West Supp.

2017). Obstructing or impeding a person’s normal breathing is a bodily injury that

impairs a person’s physical condition. Marshall v. State, 479 S.W.3d 840, 844 (Tex.

Crim. App. 2016).

      K.A. testified that Arteaga-Roman touched her sexual organ with his mouth.

In addition, K.A. agreed that Arteaga-Roman’s hand touched inside her sexual organ

when he was moving her underwear. D.B. testified that Arteaga-Roman put a rag

over her nose and applied pressure, which caused her to have trouble breathing.

Viewing the evidence in the light most favorable to the verdict and deferring to the

jury’s authority regarding the credibility of witnesses and the weight to give their

testimony, we conclude that a reasonable factfinder could have found Arteaga-

Roman guilty of injury to D.B. and two counts of aggravated sexual assault of a child

as to K.A. See Tex. Penal Code §§ 22.021(a)(1)B, 22.04(a)(3); Tex. Code Crim.

Proc. Ann. art. 38.07(a), (b)(1); see also Marshall, 479 S.W.3d at 844; Brooks v.

                                         16
State, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at

13; Penagraph, 623 S.W.2d at 343; Tear, 74 S.W.3d at 560.The evidence is legally

sufficient to support Arteaga-Roman’s convictions. Accordingly, we overrule issues

one, two, and three.

                                    ISSUE FOUR

         In issue four, Arteaga-Roman argues that the trial court erred by denying

his motion for mistrial after D.B. testified regarding an extraneous offense. We

review the denial of a motion for mistrial under an abuse of discretion standard.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is only

appropriate for errors that are highly prejudicial and incurable. Id. Instructing the

jury to disregard generally cures any error associated with testimony referring to an

extraneous offense. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992);

Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979). When, as here, a

trial court instructs the jury to disregard certain testimony, we generally presume

that the jury followed the trial court’s instructions. Ladd v. State, 3 S.W.3d 547, 567

(Tex. Crim. App. 1999). As discussed above, the trial judge sustained defense

counsel’s objection and instructed the jury to disregard D.B.’s statement regarding

the extraneous offense. Therefore, we conclude that the trial court did not abuse its

discretion by denying the motion for mistrial. See Simpson, 119 S.W.3d at 272;

                                          17
Kemp, 846 S.W.2d at 308; Campos, 589 S.W.2d at 428. Accordingly, we overrule

issue four.

                                     ISSUE FIVE

          In his fifth issue, Arteaga-Roman argues that his punishment was cruel and

unusual and “disproportionate to the nature of the violations.” See U.S. Const.

amends. VIII, XIV. Generally, a sentence that is within the range of punishment

established by the Legislature will not be disturbed on appeal and is not

unconstitutionally cruel and unusual. Jackson v. State, 680 S.W.2d 809, 814 (Tex.

Crim. App. 1984); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet.

ref’d).

          The record does not demonstrate that Arteaga-Roman presented his

complaints to the trial court. See Tex. R. App. P. 33.1(a). However, even if Arteaga-

Roman had preserved his complaints for appellate review, his sentences of thirty

years of confinement for each of the two counts of aggravated sexual assault of a

child and four and a half years of confinement for injury to a child are within the

statutorily-authorized ranges of punishment for the charged offenses. See Tex. Penal

Code Ann. § 22.021(e) (West Supp. 2017) (aggravated sexual assault of a child is a

first-degree felony); Id. § 22.04(f) (West Supp. 2017) (injury to a child is a third-

degree felony); see also Tex. Penal Code Ann. § 12.32 (West 2011) (first-degree

                                          18
felony punishment range is five to ninety-nine years of confinement and a fine of up

to $10,000); Id. § 12.34 (West 2011) (third-degree felony punishment range is two

to ten years of confinement and a fine not to exceed $10,000). In addition, the record

contains no evidence “reflecting sentences imposed for similar offenses on criminals

in Texas or other jurisdictions by which to make a comparison.” Jackson v. State,

989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.). The absence of such

evidence renders this Court unable to perform a proportionality analysis. See

generally Solem v. Helm, 463 U.S. 277, 292 (1983); Davis v. State, 905 S.W.2d 655,

664-65 (Tex. App.—Texarkana 1995, pet. ref’d). For all of these reasons, we

overrule issue five. Having overruled each of Arteaga-Roman’s issues, we affirm

the trial court’s judgments.

      AFFIRMED.


                                              ______________________________
                                                    STEVE McKEITHEN
                                                      Chief Justice


Submitted on March 29, 2018
Opinion Delivered May 23, 2018
Do Not Publish

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



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