Opinion filed January 30, 2014




                                               In The

            Eleventh Court of Appeals
                                            ___________

       Nos. 11-12-00020-CR, 11-12-00021-CR, & 11-12-00022-CR
                                            ___________

                    JESSE JAMES RODRIGUEZ, Appellant
                                                   V.
                         THE STATE OF TEXAS, Appellee


                        On Appeal from the 21st District Court
                                Bastrop County, Texas
                     Trial Court Cause Nos. 13975, 13976, & 13977


                              MEMORANDUM OPINION
        The jury found Jesse James Rodriguez guilty of three offenses: sexual
assault, aggravated sexual assault, and indecency with a child by exposure. The
State alleged two enhancement paragraphs in each of the three cases, 1 and the trial


        1
         Appellant had previously been convicted (1) of attempted burglary of a building in 1991, a third-
degree felony, and (2) of indecency with a child by contact in 1993, a second-degree felony.
court found the two enhancement paragraphs in each case to be “true.” Based on
these findings, the trial court assessed Appellant’s punishment for each conviction
at life imprisonment. The trial court ordered the sentences for sexual assault and
aggravated sexual assault to run concurrently. The trial court ordered that the
sentence for indecency with a child by exposure commence once Appellant had
completed the other two sentences.2 We affirm.
                                         I. The Charged Offenses
        The grand jury charged Appellant with sexual assault 3 of his then wife,
M.Q., and aggravated sexual assault 4 of his then brother-in-law, A.Q, a disabled
individual who has Down syndrome. These charges arose from an incident where
Appellant coerced M.Q. and A.Q. to engage in sexual intercourse with each other
after he threatened to sexually abuse A.R. if his demands were not met. The grand
jury also returned an indictment against Appellant for indecency with a child by
exposure when Appellant held his minor daughter, A.R., down on a bed while he
masturbated and stared at her feet and touched them. 5
                                           II. Procedural History
        The State filed a notice to consolidate Appellant’s three indictments into one
trial. Appellant opposed consolidation and moved to sever each indictment into a
separate case.          Before jury selection began, the trial court heard Appellant’s



        2
         In the punishment phase, Appellant admitted that A.R. had testified truthfully and that he had
exposed himself to her; he also wrote a letter to the judge in which he admitted his guilt and stated that he
had wronged A.R. But Appellant still denied he had forced M.Q. to have sexual intercourse with her
disabled brother, A.Q.
        3
            See TEX. PENAL CODE ANN. § 22.011 (West 2011).
        4
            See id. § 22.021 (West Supp. 2013).
        5
         This offense occurred when A.R. was ten years old, which was approximately a year prior to the
event that supported the other two indictments. See id. § 21.11.

                                                     2
motions to sever, denied them, and proceeded to trial on all three cases before the
same jury.
                                          III. Evidence at Trial
       Appellant’s ex-wife, M.Q., testified that she and Appellant, along with their
four children—A.R., age 12; J.R., age 10; M.R., age 7; and R.R., age 3—and her
son from a prior relationship, who was 21 years old, all lived in Bastrop, Texas,
with M.Q.’s 95-year-old grandmother and her 40-year-old disabled brother, A.Q.
Appellant and M.Q. met in 1997. M.Q. said she and her children as well as
Appellant and her brother had lived in Austin from 1997 to 2004, then moved to
Wisconsin in 2005, and returned to Texas in 2007.
       Appellant began to abuse his daughter, A.R., in 2004 and the sexual abuse
took several forms and continued for six years.                       Appellant’s ex-girlfriend,
Stephanie Coy, indicated that Appellant had told her that he had sexual urges for
his minor daughter, A.R. Appellant denied that he had ever told Coy that he had
urges for A.R., but he admitted that he had a foot fetish and a problem. 6 A.R.
testified that Appellant made her show him her feet on multiple occasions,
including one time in July 2008, when Appellant took A.R. into a bedroom and
held her down while he looked at, touched, and masturbated on her feet. This
incident in 2008 was the basis for the indecency charge.
       A.R. testified that the first instance of abuse occurred when she was four
years old when Appellant forced her to take a bath with him and rub his body with
soap. In accordance with Appellant’s demand, A.R. rubbed Appellant’s arms and
legs with soap. A.R. also recalled one incident when Appellant “kissed” her

       6
          Appellant had a family photo album that he kept in the closet of the master bedroom that
included ordinary pictures of his children and family members as well as provocative computer pictures
of Elvira, a television and film celebrity; pornographic pictures of nude adult women that emphasized
their feet; and one pornographic image that depicted sexual intercourse between a nude adult man and
woman. In addition, a picture of a child’s feet, with the head and body of the image torn off, also was
found in the album.

                                                  3
vagina as she changed clothes and later slapped her on her “butt” even though she
was not in trouble and was not being punished.
      A.R. also testified that Appellant had exposed his genitals to her several
times and had rubbed his private parts both over and under his clothing. Appellant
also forced her to watch pornographic movies. A.R. said that Appellant
masturbated in her presence while the pornographic or sex movies played. A.R.
testified that the movies depicted strippers, which she said were people who
danced and took their clothes off in front of people; she also said the movies
depicted nude adult men and girls and men and women having sexual intercourse.
      A.R. said she saw Appellant rub his genitals in her presence more than five
times. A.R. also testified that Appellant’s penis was darkish-brown and hairy and
that she saw white stuff, which she called “sperm,” come out of it. A.R. said she
learned in science class that the white stuff she saw was called sperm. A.R. also
said that Appellant made her touch his private parts both under and over his
clothing.
      Appellant’s sexual abuse of others was not limited to A.R. His ex-wife,
M.Q., testified that, in 2004, Appellant first told her he wanted to watch her have
sex with other men. When M.Q. refused, Appellant used a screwdriver to threaten
physical harm to their infant son. Out of fear for her children’s safety, M.Q.
eventually submitted to Appellant’s demands and engaged in sexual acts with
another man on several occasions while Appellant watched and masturbated.
      Appellant once told M.Q. to have sex with her male coworker and to return
home with “lots of hickeys” all over her body. When M.Q. went to the coworker’s
home to fulfill Appellant’s demand, Appellant called her repeatedly and ordered
her to return home immediately. When M.Q. returned home, Appellant punched
her in the face and gave her a black eye.


                                            4
       Appellant also told M.Q. that he wanted to watch her “masturbate” her
brother, A.Q. On several occasions, in accordance with Appellant’s demands and
threats, M.Q. rubbed A.Q.’s genitals with her feet. M.Q. testified that Appellant
had a “foot fetish” and often masturbated as he held one of her feet and watched
her perform sexual acts on A.Q. Later, Appellant demanded once again that M.Q.
have sex with a coworker, and she attempted to do so to satisfy Appellant’s sexual
desires. M.Q. said that Appellant wanted her to have sex with a coworker at their
house so that Appellant could not only masturbate in front of them while they
engaged in intercourse, but also videotape the entire episode.7 After the coworker
did not show up as planned, Appellant demanded that M.Q. have sex with A.Q. so
he could watch and masturbate. Appellant threatened to sexually assault A.R. if
M.Q. did not submit to his demands.
       Because she was afraid that Appellant would “rape” A.R. if she did not do
what he said, M.Q. had sexual intercourse with A.Q. while Appellant watched and
masturbated while in bed with them. M.Q. testified that she believed Appellant’s
threat against A.R. was credible because A.R. had recently told her that Appellant
had once held A.R. down and masturbated on her feet.
       A few days after M.Q. and A.Q. had sexual intercourse, M.Q. gathered A.Q.,
A.R., and her other four children and drove the family from Bastrop to Austin.
After the family arrived in Austin, M.Q. drove to the Austin Police Department to
hand over the family gun so that Appellant could not use it against the family.
After M.Q. arrived at the police station, she told her story to Officer Jason
Goodman. The testimony of several witnesses, including Officer Goodman,
showed that M.Q. consistently recounted to others the events that compelled her,
against her will, to have sexual intercourse with her own brother.
       7
         The police found a camcorder in the master bedroom and a video that depicted a 30-second clip
of the bed in the bedroom. Police testified that the video looked like someone had set up the camera to
videotape something that would occur on the bed.

                                                  5
      Dr. Maurine Burrows testified that she met with A.Q. to evaluate his
competency as a witness and to assess the severity of his disability. Dr. Burrows
concluded that A.Q. was a disabled individual that operated at the level of a four-
year-old child and had no ability to consent to sexual activity. Dr. Burrows further
determined that A.Q. could not communicate about any sexual abuse and was not
competent to testify.
      Several witnesses testified that A.R. had shared her allegations of abuse with
them. Mindy Graber, a forensic interviewer with the Child Advocacy Center,
testified that A.R. told her that Appellant had once taken her to his bedroom, held
her down on the bed, and masturbated while he stared at her feet. A.R. also
informed Graber that Appellant, in reference to his sexual demands of A.R., once
said, “Your mom doesn’t show me her feet and you’re going to suffer the
consequence.”
      Appellant testified and denied the allegations made by M.Q. and A.R. He
also denied he ever made any threats against his children. Although Appellant—in
response to a police pretext call from M.Q. where she accused him of harm to her
daughter, brother, and her—admitted that it was all his fault and that he would not
do “this s--t no more,” Appellant nonetheless testified that M.Q. fabricated all of
the allegations out of anger because of his extramarital affair and his past criminal
history and because she wanted a divorce. He also said M.Q. and A.R. had
fabricated the allegations because M.Q. and A.R. had a close bond.
                                  IV. Issues Presented
      Appellant presents two issues in each appeal. First, Appellant argues that
the trial court erred when it consolidated his three indictments into one case and
denied his motions to sever. Second, Appellant argues that the trial court abused
its discretion when it failed to grant his severance request, which he was entitled to


                                          6
under Section 3.04 of the Texas Penal Code, 8 and that the failure of the trial court
to grant his severance request unfairly prejudiced him.
                                   V. Standard of Review
      We review the decision of a trial court to grant or deny a severance request,
based upon a statute, for an abuse of discretion. Salazar v. State, 127 S.W.3d 355,
365 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). A trial court’s failure to
grant a mandatory severance under Section 3.04 of the Texas Penal Code is error.
If such an error occurred, then we conduct a harm analysis in which we consider
everything in the record, including all the evidence admitted, the closing
arguments, and the jurors’ comments during voir dire. Llamas v. State, 12 S.W.3d
469, 470–71 (Tex. Crim. App. 2000). If the error did not adversely affect the
defendant’s substantial rights, then it is harmless.       TEX. R. APP. P. 44.2(b);
Werner v. State, 412 S.W.3d 542, 547 (Tex. Crim. App. 2013) (severance error
harmless where significant overlap of evidence and evidence of guilt
overwhelming); Scott v. State, 235 S.W.3d 255, 256–57 (Tex. Crim. App. 2007)
(error harmless where significant overlap of evidence). But see Llamas, 12 S.W.3d
469 (error harmful where no overlap in evidence).
                                         VI. Analysis
      A. Consolidation of Cases
      Cases against a defendant may be consolidated by the State when the
charged offenses arise out of the same criminal episode. TEX. PENAL CODE ANN.
§ 3.02(a) (West 2011) (stating that “[a] defendant may be prosecuted in a single
criminal action for all offenses arising out of the same criminal episode”); Salazar,
127 S.W.3d at 363–64. A “criminal episode” is defined as the commission of two
or more offenses, regardless of whether the harm is directed toward or inflicted
upon more than one person or item of property, under the following circumstances:
      8
       TEX. PENAL CODE ANN. § 3.04 (West 2011).

                                             7
(1) the offenses are committed pursuant to the same transaction or pursuant to two
or more transactions that are connected or constitute a common scheme or plan or
(2) the offenses are the repeated commission of the same or similar offenses. TEX.
PENAL CODE ANN. § 3.01 (West 2011). It is unnecessary that the offenses that
make up a criminal episode occur on a single date, at a single place, or against a
single complainant. Diaz v. State, 125 S.W.3d 739, 742 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d). Rather, a criminal episode may comprise offenses against
different complainants and may even take place over a period of years. Id.
      Appellant faced three charges based on related allegations of sexual
misconduct that involved his obsession with feet and deviate sexual acts. A.R.
testified that, during the summer when she was ten years old (2008), Appellant
carried her to his bedroom, held her down, and masturbated while he stared at her
feet and touched them.
      According to the testimony of Graber, Appellant told A.R. that she had to
“suffer the consequence” of M.Q.’s refusal to show Appellant her feet, which
indicated that Appellant’s sexual abuse of A.R. resulted from M.Q.’s failure to
obey his sexual commands. A.R. also recounted many other instances of abuse,
including other acts of exposure by Appellant; Appellant forcing her to watch
pornographic movies while he masturbated in her presence; Appellant kissing her
vagina; Appellant forcing her to touch his private parts, under and over clothing;
and Appellant making her touch his private parts, both under and over his clothing.
      In late November 2009, A.R. told M.Q. about the July 2008 incident of
sexual abuse. A few days later, Appellant forced M.Q. to have sexual intercourse
with her brother, A.Q., when Appellant threatened he would turn to A.R. for sexual
gratification if M.Q. refused to obey his orders. M.Q. believed Appellant’s threat
to be credible and had sexual intercourse with her brother out of fear that Appellant
would “rape” A.R. if M.Q. did not submit to his demands. M.Q. also recounted the
                                          8
multiple instances where Appellant forced her to have sex with other men and to
use her feet to masturbate her brother, A.Q., while Appellant held her foot and
masturbated.
       Appellant’s charged offenses were based on connected incidents that
constituted a single criminal episode. See PENAL § 3.01(1). Even though one of
the offenses occurred more than a year before the other two offenses and involved
different victims, the trial court was within its discretion to find that the offenses
arose out of the same criminal episode. See Diaz, 125 S.W.3d at 742.
       B. Right to Severance
       We now turn to whether Appellant had an absolute right to severance. Even
though the State can consolidate multiple offenses from a single criminal episode
into one trial under Section 3.02(a), as quoted above, a defendant has the right to
sever multiple indictments for offenses that the State consolidated into one trial
setting.   Section 3.04(a) states, “Whenever two or more offenses have been
consolidated or joined for trial under Section 3.02, the defendant shall have a right
to a severance of the offenses.” PENAL § 3.04. However, the defendant’s right is
not absolute.
       A defendant’s right to severance is limited by Section 3.04(c) of the Texas
Penal Code, which states that the right to severance does not apply to a prosecution
for offenses described by Section 3.03(b) “unless the court determines that the
defendant or the state would be unfairly prejudiced by a joinder of offenses, in
which event the judge may order the offenses to be tried separately or may order
other relief as justice requires.” Id. § 3.04(c). Section 3.04(c) only applies to the
offenses described in Section 3.03(b), which provides that the listed sexual
offenses must be “committed against a victim younger than 17 years of age at the
time of the commission of the offense.” Id. § 3.03(b)(2)(A); see Getts v. State, 155


                                          9
S.W.3d 153, 155 (Tex. Crim. App. 2005) (stating that, when statutory language is
clear and unambiguous, the plain meaning of those words is applied).
      The State argues that Appellant did not have an absolute right to severance
because the rationale that restricts that right of severance in cases of sexual abuse
against victims under the age of seventeen in Sections 3.04(c) and 3.03(b) should
be extended to this case based on the child-like nature of the 40-year-old Down
syndrome victim, A.Q. Conversely, Appellant argues that, because only one of the
three victims was under the age of seventeen, he had an absolute right to
severance. Appellant relies on Section 3.04(a) and Casey v. State, 349 S.W.3d
825, 832 (Tex. App.—El Paso 2011, pet. ref’d), as support for his argument.
      The right to severance rests upon two legitimate concerns: (1) that the jury
may convict a “bad man” who deserves to be punished—not because he is guilty of
the crime charged but because of his prior or subsequent misdeeds—and (2) that
the jury will infer that, because the accused committed other crimes, he probably
committed the crime charged. Llamas, 12 S.W.3d at 471–72. Because of the clear
and unambiguous statutory language and the fact that only one of the three charges
Appellant faced involved a victim under the age of seventeen, Section 3.04(c) is
not applicable, and severance should have been granted. We now turn to whether
Appellant was harmed by the failure of the trial court to grant his severance request
and conduct three trials.
      C. Harm Analysis
      Appellant contends he was unfairly prejudiced by the joinder of offenses,
and he asserts that the standard in Section 3.04(c) is the proper standard to
determine the extent of his harm. But this standard is not applicable because
Section 3.04(c) does not apply.
      The proper standard, instead, is to determine whether Appellant’s substantial
rights were adversely affected by the trial court’s failure to grant his motions to
                                         10
sever. TEX. R. APP. P. 44.2(b); Werner, 412 S.W.3d at 547; Scott, 235 S.W.3d at
256–57; Llamas, 12 S.W.3d at 469–70.
      A defendant’s substantial rights are not affected if the appellate court has
fair assurance that the error did not influence the jury or had but a slight effect.
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If the jury would
have heard the same evidence regardless of whether the offenses were tried
separately or together, the joinder of the offenses in a single trial could not have
affected the defendant’s substantial rights. Rogers v. State, 853 S.W.2d 29, 32–34
(Tex. Crim. App. 1993). In addition, the harm analysis requires the court to
consider if there is overwhelming evidence of guilt, which will tend to support a
lack of harm from any severance error. Werner, 412 S.W.3d at 547.
             1. Sexual Assault and Aggravated Sexual Assault Offenses
                a. Same Transaction Contextual Evidence
      Evidence of extraneous offenses connected with a primary offense may be
properly admitted as same transaction contextual evidence. Mayes v. State, 816
S.W.2d 79, 86–87 (Tex. Crim. App. 1991). Same transaction contextual evidence
is background evidence admitted to show the context in which the criminal act
occurred. Brown v. State, 243 S.W.3d 141, 151 (Tex. App.—Eastland 2007, pet.
ref’d). There is a two-part test: the first is relevance and the second is whether the
evidence should be admitted under an exception to TEX. R. EVID. 404(b). Rogers,
853 S.W.2d at 32; Mayes, 816 S.W.2d at 85. Same transaction contextual evidence
is admissible, as an exception under Rule 404(b), where “several crimes are
intermixed, or blended with one another, or connected so that they form an
indivisible criminal transaction, and full proof by testimony, whether direct or
circumstantial, of any one of them cannot be given without showing the others.”
Mayes, 816 S.W.2d at 86–87 n.4.


                                         11
      Necessity is a key element to the determination of whether same transaction
contextual evidence is admissible. See Rogers, 853 S.W.2d at 33 (only if the facts
and circumstances of the instant offense would make little or no sense without the
admission of the same transaction contextual evidence should the evidence be
admitted). Appellant’s threats and attacks on M.Q. and A.Q. are the same act and
are so intertwined with the State’s proof of each charged crime that avoiding
reference to them would have made the State’s case incomplete and difficult to
understand. See Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). In
addition, the circumstances of how Appellant threatened M.Q. with harm to A.R.
and how M.Q. knew of one of his many attacks on A.R., which compelled M.Q. to
engage in sexual acts with her brother, A.Q., against her will, are admissible to
show the overall context in which the criminal acts against M.Q. and A.Q.
occurred. See Mayes, 816 S.W.2d at 86.
      Whether the two cases were tried together, as here, or separately, the
evidence about the same criminal acts that Appellant committed against M.Q. and
A.Q. and his threats to attack A.R., along with M.Q.’s awareness of one attack,
would have been relevant and admissible in each separate case. The former would
have outlined that the criminal acts stemmed from one incident with M.Q. and
A.Q. The latter would have shown M.Q.’s belief in Appellant’s threats against
A.R., and her knowledge of one assault led M.Q. to reasonably believe that
Appellant would make good on his threats. See PENAL § 22.011(b)(7).
               b. Rebuttal of Fabrication Defense
      The evidence of the two criminal acts against M.Q. and A.Q., as well as the
indecency charge against Appellant for his criminal act with A.R., would be
admissible in the two cases that involved M.Q. and A.Q. to rebut Appellant’s
defense of fabrication. De La Paz v. State, 279 S.W.3d 336, 343–50 (Tex. Crim.
App. 2009); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).
                                         12
Appellant claimed that M.Q. and A.R. had lied about him because of a close bond
that they had or because of his marital infidelity and criminal past, which prompted
M.Q. to seek a divorce. Appellant also claimed that these three charges “would be
one of the ways to try to get things in favor of the mother . . . as to who gets
custody of the child.”
      The evidence of his acts against M.Q. and A.Q. and his indecency by
exposure to A.R. would have been admissible in each trial, had they been separate,
to rebut Appellant’s defense of fabrication.      The evidence would corroborate
M.Q.’s acquiescence to his deviate sexual demands to avoid injury to A.R., while
A.R.’s testimony would corroborate Appellant’s ability to carry out his threats
because he had, in fact, attacked her over a long period of time prior to the incident
with M.Q. and A.Q. And, in all three cases, his obsession with feet, and his own
admitted problem with that issue, corroborated the testimony of M.Q. and A.R. and
further rebutted his fabrication defense. Moreover, Investigator Jeff Goff with the
Bastrop County Sheriff’s office interviewed P.A., M.Q.’s coworker. Investigator
Goff testified that P.A. corroborated M.Q.’s testimony about Appellant’s demands
for her to have sexual liaisons with P.A.
             2. Offense of Indecency with a Child by Exposure
      Appellant argues that severance was required because the indictment that
involved A.R. was dissimilar to the other two indictments. We tend to agree. Had
the trial court severed the single case into three cases, the extraneous offense
evidence of Appellant’s attack on M.Q. and A.Q. might have been admissible to
rebut, as we have explained, his fabrication theory. De La Paz, 279 S.W.3d at
343–50. But because the indecency charge occurred prior to the other charges, we
do not see a significant overlap of evidence between the charges that involved
M.Q. and A.Q. and the indecency charge.


                                            13
             3. Overwhelming Evidence of Guilt
      The Court of Criminal Appeals pointed out that, to analyze any harm, the
second most important factor was overwhelming evidence of guilt. Werner, 412
S.W.3d at 547. In all three cases, but most especially the indecency charge, there
was overwhelming evidence of guilt.          Evidence from multiple witnesses was
adduced that Appellant had a foot fetish and problem and had urges toward his
daughter, A.R. Evidence was adduced of his obsession for visual stimulation,
including his photo album and his assault on A.R. that involved staring at her feet
while he masturbated. He also compelled his wife to masturbate A.Q. using her
feet, while Appellant masturbated in their presence as he held one of her feet.
Appellant also compelled M.Q., other men, and A.Q. to engage in sex or A.R.
would “suffer the consequence.”
      But unbeknownst to M.Q., Appellant had already begun a continuous and
escalating pattern of abuse on A.R. when she was four, which continued until she
was ten. A.R. was subjected to multiple instances of abuse by being forced to
touch Appellant’s private parts, watch sex movies, and have him inappropriately
touch her feet and kiss her private parts. The latest incident, the indecency charge
with A.R., as A.R. testified, involved him holding her down and masturbating as he
looked at and touched her feet. During a pretext call set up by Bastrop law
enforcement in which M.Q. confronted Appellant with accusations that he had hurt
her daughter, brother, and her, Appellant admitted that it was all his fault and that
he would not do “this s--t no more.” Appellant’s substantial rights were not
affected where there was such overwhelming evidence of guilt and where
consolidation likely had little or no effect on the jury’s verdicts.
                                     VII. Conclusion
      Because the trial court in a separate trial for each offense could have
admitted evidence of the other offenses to show same transaction context or to
                                           14
rebut Appellant’s suggestion of fabrication, separate juries would have heard
similar evidence, although the offenses that involved M.Q. and A.Q. probably
would not have been admissible in a separate trial of the indecency charge. But
based upon the entire record, including voir dire, the evidence, the jury charge, and
closing arguments, and upon the overwhelming evidence of guilt as to each
offense, we cannot hold that Appellant’s substantial rights were adversely affected
by the joinder of the offenses into a single trial. See Werner, 412 S.W.3d at 551;
Rogers, 853 S.W.2d at 32–34; see also TEX. R. APP. P. 44.2(b). Although the trial
court erred when it failed to grant Appellant’s motions to sever, the trial court’s
error was harmless because it did not affect Appellant’s substantial rights.
Appellant’s two issues in each appeal are overruled.
                               VIII. This Court’s Ruling
      We affirm the judgments of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


January 30, 2014
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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