                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-439-CR


TRENTON DEWAYNE PICKETT                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                   STATE

                                   ------------

         FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                 Introduction

     Appellant Trenton Dewayne Pickett appeals his conviction for possessing

more than four but less than two hundred grams of methamphetamine.

See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(a), (d) (Vernon

Supp. 2009).     In one issue, he contends that the trial court violated his




     1
         … See Tex. R. App. P. 47.4.
constitutional rights by failing to appoint counsel different than the counsel it

originally appointed, denying him an opportunity to retain different counsel, and

disallowing him to represent himself. We affirm.

                              Background Facts

      Just before ten o’clock on the morning of November 10, 2006, Bowie

Police Department Officer Kent Stagg saw Pickett as he was sleeping or was

unconscious in a pickup. Officer Stagg knocked on the pickup’s door frame,

and Pickett awoke and began shaking and sweating.

      As Pickett stepped out of the pickup with items in his hands, Officer

Stagg saw a glass pipe fall on the pickup’s floor.      Because Officer Stagg

recognized the pipe as drug paraphernalia, he asked Pickett to drop the items

he was carrying into the pickup’s bed, and he arrested Pickett. After the arrest,

Officer Stagg searched the items that Pickett had dropped into the pickup’s

bed. Inside a ball of tape, Officer Stagg found crystalized methamphetamine

inside a vile and a baggie.

      A Montague County grand jury indicted Pickett for possessing the

methamphetamine. In May 2007, the trial court appointed Tim Cole, a former

district attorney, to represent Pickett. After the parties filed various pretrial

documents, Pickett’s trial began in October 2008.




                                       2
      Pickett pled not guilty, but the jury found him guilty. After the State

presented evidence regarding Pickett’s previous drug-related felony conviction

and his mother briefly testified, the jury assessed punishment at twenty years’

confinement. Pickett timely filed his notice of appeal.

      Pickett’s Choice of Counsel and the Right of Self-Representation

      On March 5, 2008, a date that Pickett’s case was set for trial, the

following exchange occurred between Pickett, Cole, and the trial judge after

Pickett and Cole expressed their disagreement about whether Pickett should

accept the State’s plea bargain offer:

            [MR. COLE]: . . . [W]e have a fundamental disagreement
      about the strategy that you should proceed with in this case, do we
      not?

            [THE DEFENDANT]: Yes, we do.

            [MR. COLE]: In fact, in the very beginning, you had a
      fundamental mistrust of me representing you because I was the
      prosecutor who sent you to prison in the last case you were
      convicted in; is that true?

            [THE DEFENDANT]: That’s correct.

            [MR. COLE]: Now, are you wanting to tell the Judge
      something about that -- your feelings with regard to that and
      request that he give you a new attorney or give you time to hire an
      attorney?

            [THE DEFENDANT]: Yes, I would like to.

            [MR. COLE]: Would you explain that to him?

                                         3
     [THE DEFENDANT]: I don’t feel that he’s representing me
the way that I need to be represented and I don’t trust him beings
he was the prosecutor in a case back in ‘98 that I made a plea on.

      ....

      [MR. COLE]: Do you have the ability to hire an attorney?

      [THE DEFENDANT]: I should have now. I’ve been working.

      [MR. COLE]: So you’re telling the Judge that you want to
hire your own attorney?

      [THE DEFENDANT]: Yes, I do.

      ....

     [THE COURT]: How long have you had the ability to hire
another attorney?

      [THE DEFENDANT]: About a week and a half.

      [THE COURT]: And the reason you haven’t hired an attorney
as of this date then is, what?

      [THE DEFENDANT]: I still haven’t made it to a scrap yard
with the cars that I’ve gathered up, but I have sold them to him.

       [MR. COLE]: Judge, just for your own knowledge, I -- Mr.
Pickett has been aware that this was the top case on the jury
docket since last week. I made it very clear to him last week.
We reviewed the evidence, in detail, in this case and he remains
deeply mistrustful of me and everything that I tell him. There is a
deep, deep mistrust from him towards me and I think it stems from
the fact that I was, in deed [sic], the district attorney in his prior
case. So having said that, it’s up to, obviously, the Judge’s
discretion as to whether you allow me out of the case at this point,
but it’s clear there’s going to continue to be a problem between



                                  4
      myself and Mr. Pickett throughout the trial. So with that, I’ll leave
      it to your discretion.

            [THE COURT]: Okay. And what attorney do you want to
      hire, Mr. Pickett?

            [THE DEFENDANT]: I’m not sure.           He’s out of Wichita.
      A friend of mine used him.

            [THE COURT]: Who is it?

           [THE DEFENDANT]: I'm not sure of his name yet, but I will
      have one.

            ....

             [THE COURT]: Okay. All right. I’m going to let you hire an
      attorney. But if you don’t hire an attorney, Mr. Cole [has] still been
      appointed to represent you. You need to hire the attorney.
      You need to hire them and have them notify both the district
      attorney and the district clerk that they’re representing you.
      And you are set for trial -- you don’t have to be back next week,
      but you’re ordered to be here at 9 a.m. on April 22, 2008, for jury
      trial and you need to let your lawyer know when you’re going to be
      here.
             And let me explain this: If you don’t hire a lawyer, you’re
      still ordered to be here on April the 22nd and Mr. Cole will be
      representing you at the jury trial then.

            [THE DEFENDANT]: Yes, sir.

            [THE COURT]: Any questions about that?

            [THE DEFENDANT]: No, sir.

More than seven months later, after Pickett failed to reappear for his jury trial

and forfeited his bond, the following colloquy took place:



                                        5
     [THE COURT]: All right. Mr. Pickett, we’re on the record.
Now, is there something you want to say?

      [THE DEFENDANT]: Yes, sir. I still don’t wish to have Tim
Cole represent me here as I did in the past for the same reasons.
He hasn’t done anything towards my defense but ask me how
many years I want. And he was the prosecuting attorney in a
previous conviction of mine on a marijuana charge in ‘98. And if
I’m put on the stand and I’m going to be questioned about my past
record comes in light, which I want it to, he’ll be a witness to my
defense. But I don’t trust him. He [has not] done anything to me
and I have begged with the Court to let me have a different
defense attorney.

      [THE COURT]:     Mr. Pickett, let me ask you a couple
questions. When is the last time -- the last time you were in court
was on March the 5th and you said you were going to hire an
attorney?

      [THE DEFENDANT]: Yes, sir.

      [THE COURT]: It is now October the 21st. Have you hired
an attorney?

       [THE DEFENDANT]: The one I was going to hire increased
his price on me yesterday.

      ....

      [THE COURT]: When is the last time you talked to [the
attorney who Pickett was going to hire] before yesterday?

      [THE DEFENDANT]: March 15.

     [THE COURT]: Let’s see, Mr. Pickett, you also failed to
appear for the jury trials that were set April 22nd. You failed to
appear May 6th. You failed to appear May 13th. And you -- so --

      [THE DEFENDANT]: I didn’t know nothing about May 13th.

                                6
      [THE COURT]: Oh, yeah, you did because you had -- when
you got the March jury notice, it also had the subsequent dates in
there too. . . . Now, Mr. Pickett, you tell me one reason why
you’ve had since March 5th to hire an attorney and you haven’t
done it? Why? You haven’t taken any steps -- actually, you didn’t
take any steps until you were rearrested. The only reason you’re
here today is because you were rearrested and in jail; is that
correct?

      [THE DEFENDANT]: Yes, sir.

      ....

      [THE COURT]: Mr. Pickett, do you remember what I told you
back in March?

      [THE DEFENDANT]: Yes, sir.

      [THE COURT]: Hire an attorney or your appointed counsel is
going to represent you.

      [THE DEFENDANT]: Yes, sir. And I honestly thought I had
the means to hire that attorney until yesterday when he told me he
increased his price $10,000. The only person I’ve had since I’ve
been locked up to be able to help me has been my mother and
she’s been sick.

      ....

      [THE COURT]: And you’ve criticized Mr. Cole about not
preparing to defend you in the case; is that correct?

      [THE DEFENDANT]: Yes, sir.

     [THE COURT]: How many times since March have you
contacted Mr. Cole to give him any information about your case?




                                7
      [THE DEFENDANT]: None, because I haven’t wanted him as
my attorney. I didn’t want him. I didn’t figure I needed to give him
any information. . . .

      ....

      [THE COURT]: Well, Mr. Pickett, I’m afraid that a good deal
of the problem you’ve appeared to have had here appear to be,
maybe, of your own making. So I’m -- you've had six months to
hire an attorney?

      [THE DEFENDANT]: And, yes, sir, I have. But I wasn’t --

       [THE COURT]: And you haven’t done it. And you’ve missed
-- basically, skipped out on three jury weeks?

      ....

      [THE DEFENDANT]: And the reason being, sir, is because I
didn’t have the money at the time for another attorney and I didn’t
want him for my attorney.

     [THE COURT]: I don’t believe that -- well, nevertheless,
we’re going to go ahead and proceed to trial today. If the State
would read the indictment.

      [THE DEFENDANT]: May I ask, Your Honor, if I choose to
represent myself how long I would have to prepare a defense?

       [THE COURT]: About -- you’ve had six months. The jury
panel is going to be coming in here in five minutes. You are not
delaying the trial any longer, Mr. Pickett. You have been set three
times. You have voluntarily absented yourself from the courtroom.
And if you represent yourself, there are warnings I will go over with
you, but we will proceed to trial today. And if you represent
yourself, you will be held to the same standards as attorneys are.
I will not be able to help you. Any objections have to have the
same basis that they would if they were made by an attorney.



                                 8
      You will be held to the same standards as an attorney. It would
      put you at a significant disadvantage to represent yourself. . . .

               ....

            [THE COURT]: . . . [I]f you represent yourself, that might be
      a mistake you made there too. I am trying to let you know that it
      is, generally, a significant problem -- let me back up. It is difficult
      to represent oneself in a case. Even if one is a lawyer, it is difficult
      to represent yourself in a case whether it is a civil case or a
      criminal case. And I want to point out something else to you that
      you may not know. The same day back in March that you didn’t
      want Mr. Cole as an attorney, there was a Mr. Adams that had Mr.
      Cole as the attorney and didn’t want him either. He went to trial
      and Mr. Cole got him a mistrial during the trial itself. I’m not
      saying it will happen in this case. I don’t know. But just because
      somebody doesn’t want somebody as their attorney is not an
      excuse for getting rid of a court-appointed attorney. And you have
      had time -- you have had time to hire an attorney.
            . . . So is there anything else you want to put on the record
      then?

               [THE DEFENDANT]: No, sir.

      In the title of his only issue, Pickett contends that the trial court

committed reversible error by “failing to conduct a thorough hearing on [his]

request to have new counsel appointed, to have an opportunity to retain

counsel, or to represent himself and by refusing to allow [him] to represent

himself   in   the    trial   in   contravention   of   [his]   constitutional   rights[.]”

Thus, although the majority of Pickett’s legal argument in his brief concerns the

right of self-representation, we construe Pickett’s issue as challenging (1) the

trial court’s denial of his request for more time to retain counsel, (2) the trial

                                             9
court’s refusal to appoint different counsel, and (3) the trial court’s alleged

denial of his right of self-representation.

Denial of additional time to retain different counsel

      Pickett’s request for more time to retain different counsel (which, of

course, would have again delayed the trial’s proceeding) and his appellate

complaint involving the denial of that request is a challenge to the denial of a

motion for a continuance. See Coleman v. State, 188 S.W.3d 708, 722–24

(Tex. App.—Tyler 2005, pet. ref’d) (construing an appellant’s complaint that

he did not want to go to trial until he was represented by an attorney of his

choice as a challenge to the denial of a continuance), cert. denied, 549 U.S.

999 (2006).     The denial of a motion for continuance is within the sound

discretion of the trial court, and our review of the denial of the motion is limited

to whether the trial court abused that discretion.          Renteria v. State, 206

S.W.3d 689, 699 (Tex. Crim. App. 2006); Janecka v. State, 937 S.W.2d 456,

468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997); Williams v.

State, 172 S.W.3d 730, 733 (Tex. App.—Fort Worth 2005, pet. ref’d).

      A defendant must show “specific prejudice to his defense” to establish

that the trial court abused its discretion by refusing to grant a continuance.

Renteria, 206 S.W.3d at 699; Janecka, 937 S.W.2d at 468. Examples of

specific   prejudice   include   unfair   surprise,   an   inability   to   effectively

                                          10
cross-examine witnesses, and the inability to elicit crucial testimony from

potential witnesses. Janecka, 937 S.W.2d at 468.

      The federal and Texas constitutions guarantee the right to counsel in

criminal cases and contemplate the right to obtain paid, nonappointed counsel

of the defendant’s choosing. United States v. Gonzalez-Lopez, 548 U.S. 140,

151–52, 126 S. Ct. 2557, 2565–66 (2006); Gonzalez v. State, 117 S.W.3d

831, 836–37 (Tex. Crim. App. 2003).           But the right to counsel of the

defendant’s choosing is not absolute, and Texas courts have consistently noted

that a defendant cannot wait until the day of trial to demand different counsel

or to request that counsel be dismissed so that he may retain other counsel.

Gonzalez, 117 S.W.3d at 837; Webb v. State, 533 S.W.2d 780, 784 (Tex.

Crim. App. 1976) (explaining that an “accused’s right to represent himself or

select his own counsel cannot be manipulated so as to obstruct the orderly

procedure in the courts or to interfere with the fair administration of justice”).

      In deciding whether to grant a continuance because of the absence of the

defendant’s choice of counsel, the trial court should weigh the following

factors: (1) the length of delay requested; (2) whether other continuances were

requested and whether they were denied or granted; (3) the length of time in

which the accused’s counsel had to prepare for trial; (4) whether another

competent attorney was prepared to try the case; (5) the balanced convenience

                                       11
or inconvenience to the witnesses, the opposing counsel, and the trial court;

(6) whether the delay was for legitimate or contrived reasons; (7) whether the

case was complex or simple; (8) whether the denial of the motion resulted in

some identifiable harm to the defendant; and (9) the quality of legal

representation actually provided. Ex parte Windham, 634 S.W.2d 718, 720

(Tex. Crim. App. 1982). W e must determine whether the trial court could

reasonably have balanced these factors and concluded that the fair and efficient

administration of justice weighed more heavily than Pickett’s right to counsel

of his choice.     See Greene v. State, 124 S.W.3d 789, 794 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

      Here, the trial court appointed Cole in May 2007, and Cole had from that

time until October 2008—about a year and a half—to prepare for Pickett’s trial.

Pickett had expressed his concerns about Cole’s representation to the trial court

in the past, but although Pickett was dissatisfied with Cole by March 2008, he

did not secure different counsel in the seven months from then until trial, and

there was obviously no other competent attorney ready to try Pickett’s case.

Also, the record reflects that Pickett did not actively seek to communicate with

or to hire replacement counsel from March 15, the last day he talked to the

counsel that he had initially planned on hiring, until September. In September,




                                       12
although Pickett talked to and had the means to hire a Wichita Falls attorney,

Pickett did not do so.

      While the record does not establish how long a continuance Pickett

wanted and does not contain any previous motions for a continuance, Pickett

had delayed the trial three times over the course of six months by absconding

to Arkansas and forfeiting his bond. Finally, Pickett does not direct us to any

portion of the record establishing that Cole’s previous prosecution of him had

any impact on the trial, nor does Pickett argue on appeal that Cole’s assistance

was ineffective or that Cole made any tactical decision before or during the trial

that, if not made, could have prevented Pickett’s conviction or reduced his

punishment.

      For all of these reasons, we hold that the trial court did not abuse its

discretion by denying Pickett’s oral motion for continuance to secure counsel

of his choice. See Renteria, 206 S.W.3d at 699; Webb, 533 S.W.2d at 784.

Thus, we overrule that portion of his only issue.

Refusal to appoint different counsel

      Next, Pickett complains of the trial court’s refusal to appoint different

counsel.   The code of criminal procedure authorizes the replacement of

appointed counsel for good cause.       See Tex. Code Crim. Proc. Ann. art.

26.04(j)(2) (Vernon 2009).

                                       13
      However, “[a]ppointment of new counsel is a matter solely within the

discretion of the trial court,” and the “trial court is under no duty to search for

a counsel until an attorney is found who is agreeable to the accused.” Solis v.

State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); see King v. State, 29

S.W.3d 556, 566 (Tex. Crim. App. 2000). “A defendant does not have the

right to choose appointed counsel, and unless he waives his right to counsel

and chooses to represent himself, or shows adequate reasons for the

appointment of new counsel, he must accept court-appointed counsel.”

Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.);

see Renfro v. State, 586 S.W.2d 496, 499–500 (Tex. Crim. App. [Panel Op.]

1979); Trammell v. State, 287 S.W.3d 336, 343 (Tex. App.—Fort Worth 2009,

no pet.) (“Texas courts have specifically held that an indigent defendant does

not have a right to the counsel of his own choosing.”).

      The defendant has the burden to prove that he is entitled to new

appointed counsel.    Stephenson v. State, 255 S.W.3d 652, 655–56 (Tex.

App.—Fort Worth 2008, pet. ref’d) (mem. op.).          Conclusory allegations of

conflicts of interest, disagreements on trial strategy, and personality disputes

are generally insufficient to carry the defendant’s burden. Id.; see Maes, 275

S.W.3d at 71–72. When a change of appointed counsel is requested but not

given, we should examine the record for whether the appointed counsel’s

                                        14
representation had a negative impact on the trial. See Malcom v. State, 628

S.W.2d 790, 792 (Tex. Crim. App. [Panel Op.] 1982).

      Pickett asserted two reasons at trial in October 2008 for Cole’s dismissal.

First, Pickett said that Cole had not done enough to prepare for his defense.2

But Pickett admitted that he had not made any contact with Cole in the seven

months before the trial, so he was in a poor position to determine what

preparations Cole had taken. Also, the record indicates that Cole provided an

adequate, detailed defense, and Pickett has not argued otherwise. For example,

Cole filed several pretrial motions, questioned potential jurors at length during

voir dire, argued that some statements contained in a video of Pickett’s arrest

were inadmissible, asked for and was granted a running objection on a

suppression issue, cross-examined Officer Stagg about his failure to follow

certain procedures or preserve fingerprints during Pickett’s arrest as shown in

the arrest video,3 questioned the State’s forensic scientist about the true

amount of methamphetamine in the substance the scientist tested, and argued




      2
       … Specifically, Pickett stated that Cole had not “done anything . . . but
ask me how many years I want.” Cole told the trial court that Pickett had
successively rejected plea bargain offers, against Cole’s advice, of two years’
and five years’ confinement.
      3
      … Pickett told the trial court before testimony began that Cole had
neglected to realize the importance of the video to Pickett’s defense.

                                       15
for Pickett’s acquittal in closing argument because of various alleged

“unanswered questions.”

       Second, Pickett contended that Cole should have been replaced because

Cole previously prosecuted him. However, Cole’s prosecution of Pickett for an

unrelated crime approximately a decade before the trial of this case did not

create a per se conflict of interest or automatically disqualify Cole. See Tex.

Disciplinary R. Prof’l Conduct 1.10(a), reprinted in Tex. Gov’t Code Ann., tit.

2, subtit. G app. A (Vernon 2005) (indicating that a former public officer may

represent a private client as long as the representation is not connected with

a matter that the officer personally and substantially participated in while in

office); cf. Reed v. State, 503 S.W.2d 775, 776 (Tex. Crim. App. 1974)

(holding that an attorney who the defendant had retained in the past was not

disqualified from prosecuting the defendant in an unrelated case). And Pickett’s

only   expressed   apprehension   of   a    more   than   theoretical   conflict   of

interest—regarding Cole’s dual role of both questioning Pickett about and being

a witness to Pickett’s criminal history—never came to fruition because Pickett

decided not to testify.4 Finally, Pickett has not cited any authority supporting




       4
       … We note that any defense attorney, either appointed or retained, who
previously represented a criminal defendant would also have such a dual role.

                                       16
the notion that Cole’s previous prosecution of him entitled him to different

appointed counsel.

      For all of these reasons, we hold that the trial court did not abuse its

discretion by declining to appoint new counsel for Pickett, and we also overrule

that portion of his only issue. See King, 29 S.W.3d at 566; Solis, 792 S.W.2d

at 100.

Alleged denial of right of self-representation

      Finally, Pickett argues that the trial court denied him the right to represent

himself. The Sixth Amendment guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel” for his

defense. U.S. Const. amend. VI. The Sixth Amendment’s right of counsel

contains an implicit reciprocal right of self-representation. Faretta v. California,

422 U.S. 806, 818–22, 95 S. Ct. 2525, 2532–34 (1975); Williams v. State,

252 S.W.3d 353, 356 (Tex. Crim. App. 2008); Ex parte Winton, 837 S.W.2d

134, 135 (Tex. Crim. App. 1992).

      But the right of self-representation does not attach “until it has been

clearly and unequivocably asserted.” Williams, 252 S.W.3d at 356 (quoting

Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986)); Winton,

837 S.W.2d at 135 (explaining that a defendant “should be allowed to so

proceed so long as the assertion of his right to self-representation is

                                        17
unconditional”); see also Burton v. Collins, 937 F.2d 131, 134 (5th Cir.)

(holding that an assertion of self-representation is not clear and unequivocal

when it is “an inquiry into alternatives”), cert. denied, 502 U.S. 1006 (1991);

Barrientes v. State, No. 04-06-00541-CR, 2007 WL 1888378, at *1 (Tex.

App.—San Antonio July 3, 2007, no pet.) (mem. op., not designated for

publication) (holding that the defendant’s asking, “Can I represent myself?” was

not a clear and unequivocal invocation of his right of self-representation and

that without such an invocation, “the trial court has no duty to make further

inquiry” to that right).     A defendant’s alleged assertion of his right to

self-representation   must   be   examined   in   the   context of the   record.

See DeGroot v. State, 24 S.W.3d 456, 458 (Tex. App.— Corpus Christi 2000,

no pet.).

      Pickett’s only expression regarding self-representation was his question

on the day of trial, “May I ask, Your Honor, if I choose to represent myself how

long I would have to prepare a defense?” This expression cannot be viewed as

a clear and unequivocal invocation of his self-representation right; the

expression is only a question—an inquiry into alternatives—that is expressly

conditional because it begins with the word “if.” After the trial judge then

spoke extensively about the possible pitfalls of self-representation and asked

Pickett if he had anything left to say, Pickett answered, “No, sir.”

                                      18
      Although Pickett argues in his reply brief that he is “not versed in the

archaic language of the law,” there is nothing archaic or complex about saying,

“I want to represent myself.” And Pickett has not directed us to any authority

supporting his position that the trial court had a duty to explain to him that an

invocation of his self-representation right had to be clear and unequivocal.

      Finally, Pickett argues that under Faretta, he should have been made

aware of the dangers and disadvantages of self-representation.5 See Faretta,

422 U.S. at 835, 95 S. Ct. at 2541. However, he has not cited any authority

holding that the trial court has a duty in that regard when the right of self-

representation has not been adequately invoked, and our review of authority

indicates otherwise. See Williams, 252 S.W.3d at 356 (explaining that “[o]nce

asserted, under Faretta, the trial judge must inform the defendant about “the

dangers   and   disadvantages    of   self-representation”)   (emphasis   added);

Fernandez v. State, 283 S.W.3d 25, 28 (Tex. App.—San Antonio 2009, no

pet.) (stating that “[w]hen a defendant clearly and unequivocably asserts his

right to represent himself, the trial court must admonish the defendant about

the dangers and disadvantages of self-representation”).




      5
        … As the excerpt from the record that is set forth above indicates, the
trial court did give Pickett some admonishments about the difficulties of self-
representation.

                                       19
      We hold that the trial court did not violate Pickett’s constitutional right

of self-representation because Pickett did not invoke that right.      Thus, we

overrule the final portion of Pickett’s sole issue.

                                   Conclusion

      Having overruled Pickett’s only issue, we affirm the trial court’s judgment.




                                            TERRIE LIVINGSTON
                                            JUSTICE

PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 8, 2009




                                       20
